1. DEFINITIONS
“Active sales” or “actively selling” shall mean actively targeting customers by visits, letters, emails, calls or other means of direct communication or through targeted advertising and promotion, offline or online, for instance by means of print or digital media, including online media, price comparison services or advertising on search engines targeting customers in particular territories or customer groups, operating a website with a top-level domain corresponding to particular territories, or offering on a website languages that are commonly used in particular territories, where such languages are different from the ones commonly used in the territory in which the buyer is established;
Affiliate means any entity that is controlled by, controlling or under common control with any of the Parties whether (i) by ownership greater than 50% of the voting rights or (ii) by ownership greater than 50% of the shares or other ownership rights;
Agreement means these General Terms and Conditions of Sale;
Business Day means a day on which banks in the jurisdiction where Thule has its principal offices are generally open for business, other than for Internet banking services only;
EXW means Ex Works according to the latest issued Incoterms;
“Online Marketplaces” shall mean online services, which connect merchants and potential customers with a view to enabling direct purchases between these parties by way of a direct purchasing functionality without re-directing customers to other websites where goods and services can be purchased;
Party means Thule and the Retailer individually;
Parties means Thule and the Retailer jointly;
Products means any products supplied by Thule under this Agreement;
Product Information means Thule’s information on vehicles and the Products which is accessible through Thule.net and to which the Retailer is granted access following the execution of this Agreement (product information contains specifications, features, images and videos and vehicle information contains information about which products that fit a specific car);
Retailer means the person and/or entity, other than an end-user, acting as the purchaser of the Products from Thule under this Agreement;
Thule means any company within the Thule Group acting as a seller of the Products to the Retailer under this Agreement;
Thule Brand Guidelines means as defined in section 3.1 below;
Thule.net means the Thule B2B platform which is accessible through https:thule.net and to which the Retailer is granted access following the execution of this Agreement;
Thule Qualitative Requirements means Thule’s qualitative requirements for the Retailer’s retail of the Products, as set out in section 8 below; and
Written shall be defined to include paper copies, e-mails and other generally accepted electronic communications means, and the term “writing” shall have a meaning correlative to the foregoing.
2. APPLICATION
1. This Agreement shall apply to all inquiries, offers, orders and agreements according to which Thule acts as a seller of the Products in relation to the Retailer. In addition, this Agreement shall apply to the Retailer’s access to and use of the Product Information.
2. Thule’s supplies are subject solely to this Agreement. Thule hereby object to any contradicting or deviating terms proposed by the Retailer or contained in any document issued by the Retailer. Such additional terms of the Retailer shall only apply if Thule explicitly agrees to them in writing.
3. RETAIL OF THE PRODUCTS
1. With respect to the Products and the retail thereof, the Retailer undertakes to at all times adhere to Thule’s Qualitative Requirements and Thule Brand Guidelines and refrain from retailing the Products contrary to Thule’s Qualitative Requirements and Thule Brand Guidelines, the latest version hereof which is accessible through the Thule.net and which is hereby incorporated herein by reference.
2. The Retailer shall refrain from actively selling the Products in such areas and to such customers, which Thule has reserved to itself or exclusively allocated to at least one distributor. For the avoidance of doubt, the Retailer acknowledges that Thule has reserved active sales in the EES to Amazon EU Sàrl and its Affiliates in the EES. Further, the Retailer shall refrain from selling the Products via Online Marketplaces.
3. The Retailer undertakes during the term of this Agreement to restrict its direct customers of the Products from actively selling the Products in such areas and to such customers, which Thule has reserved to itself or exclusively allocated to at least one distributor, as well as from selling the Products via Online Marketplaces.
4. Notwithstanding anything to the contrary stated in this Agreement, this Agreement shall not be construed as to obligate the Retailer to purchase a minimum level of Products nor shall Thule have any obligation to accept orders for Products. For the avoidance of doubt, the sale and purchase of Products shall at all times be at the discretion of Thule and the Retailer.
4. PRICES AND PAYMENT TERMS
1. The Products shall be sold in the currency agreed upon between Thule and the Retailer and at the prices stated in the price list issued by Thule. Thule may modify the price list at any time and at its sole discretion, and the modification will be applicable also on placed and confirmed orders.
2. Payment of the purchase price (exclusive of VAT and any other applicable taxes) shall, unless otherwise is agreed, be made within fourteen (14) days from the date of shipment.
3. Late payment shall be subject to late payment interest at a rate of twelve (12) per cent or, in the event the aforementioned interest rate would be in conflict with any applicable mandatory law, the maximum interest rate permitted by such mandatory law.
4. The Retailer shall not be allowed to set off any claims it has on Thule against claims Thule may have on the Retailer and/or to suspend its payment obligations.
5. The Products shall remain the property of Thule until paid for in full, to the extent that such retention of title is valid under applicable law.
5. ORDERS, DELIVERY TERMS AND RETURNS
1. Orders for Products must be placed to Thule in Writing. The orders placed by the Retailer shall be subject to Thule’s Written confirmation. In no event shall other action or omission by Thule be interpreted as constituting Thule’s confirmation of the order, except for where such alternative action is explicitly stated to be a confirmation of the order.
2. An order placed by the Retailer may be cancelled, in whole or in part, within five (5) Business Days after such order have been issued to Thule provided that Thule has not already confirmed the order and/or delivered Products under such order, in which case no cancellation can be made by the Retailer.
3. The delivery of the Products shall be made EXW, unless otherwise is specifically agreed. If the Retailer fails to receive the Products at the time agreed, the risk with respect to the Products shall pass to the Retailer at the moment of default. Thule shall in such event store and insure the Products for a reasonable time thereafter, at the expense and risk of the Retailer.
4. The Retailer shall perform the necessary actions to clear the Products through all customs and similar governmental controls and be responsible for obtaining all required governmental authorisations in all relevant countries.
5. While using its commercially reasonable efforts to supply requested Products in a timely manner, Thule will not be liable for any delay in delivery of all or any part of an order or for any failure in delivery of all or any part of an order.
6. Upon receipt of the Products, the Retailer shall identify and promptly notify Thule in Writing of any alleged visible defect(s) rendering the Products unfit for their intended use and if, in the Retailer's judgment, such alleged defect(s) are the result of Thule’s processing or packaging of the Products and not from any mishandling during transportation to or at the destination. Minor deviations as to measure, color, weight or number shall not be considered to be defects. The Retailer shall notify Thule of such alleged defect(s) as well as furnish Thule in Writing with a description of the said defect(s) no later than forty-five (45) Business Days from the delivery date. If the Retailer fails to notify Thule within the said period and in the manner as set out in the foregoing sentence, such failure shall constitute an irrevocable acceptance of the Products by the Retailer and a waiver by the Retailer of all claims that the Products are not in a satisfactory state.
7. Thule reserves the right, at its discretion, to replace the Products which by Thule are found to be defective with the same quantity of Products in good and fit condition as well as transporting the replacement Products to the Retailer at Thule’s own expense, or to issue a credit note to the Retailer for the invoice amount of the defective Products. The aforementioned remedy shall be the Retailer’s sole and exclusive remedy as regards defective Products. For the avoidance of doubt, Thule shall in no event be liable for any damages as a result of the Products being defective. Thule reserves the right to request the Retailer to return to Thule all or part of the defective Products, to destroy them or to otherwise dispose of them, all at Thule’s own expense and in accordance with Thule’s instructions.
8. If delivery cannot take place within the agreed time of delivery Thule shall have the right to extend the agreed time of delivery with the time required. Cancellation of the order shall be the Retailer’s sole remedy at delay in delivery and the Retailer shall not be entitled to damages, penalty, remuneration or other compensation. Under no circumstances shall the Retailer be entitled to compensation for any indirect or consequential damages, costs or losses due to any delay in delivery. Should the Retailer choose not to cancel the order, the extended time of delivery stated by Thule shall be considered as the new time of delivery.
6. AFTER SALE SERVICE
1. The Retailer shall promptly notify Thule in Writing of any warranty claim or return of defective Products from customers within twenty (20) Business Days of the customer’s claim or return. Subject to (i) the Retailer’s notification in accordance with the aforementioned, (ii) that the claim is indeed covered by the Thule Warranty and (iii) that Thule accepts the customer’s claim, Thule reserves the right to either repair or replace the defective Product if the damage or defect cannot be repaired or offer a similar Product of comparable value, or issue a credit note to the Retailer for the defective Product based on the agreed purchase price.
7. RESTRICTIONS
1. The Retailer undertakes and agrees to treat as strictly confidential and not to disclose or purport to disclose to any third party any technical, commercial or other information, such as, but not limited to, pricing structure, new product plans, factory/sourcing information, sales structure, design, manufacturing and technical information of Thule and/or related to the Products or use the aforementioned information for non contractual purposes. This confidentiality undertaking shall survive the expiration or termination of this Agreement and will remain in effect without any limitation in time.
2. All drawings, specifications, technical, commercial or other information or materials furnished by Thule to the Retailer under this Agreement shall remain the property of Thule.
3. The Retailer shall in no event appoint other retailers, sub-distributors or agents for the sale of the Products without Thule’s prior Written consent.
4. The Retailer may not after Thule’s notification hereof to the Retailer continue to market and/or sell a Product which Thule, in its own discretion, has determined to be defective. The Retailer shall upon Thule’s Written request immediately sell back to Thule all such defective Products held by the Retailer in stock. The price shall be the Retailer’s cost price at the time of the original purchase less transportation charges and taxes. Proven costs for transportation (including costs for customs and other duties, if any, related to the transport) shall be paid by Thule.
5. The Retailer represents and warrants that (i) the Retailer, its Affiliates and other representatives shall comply with all applicable laws and regulations, including anti-bribery laws, trade and economic sanctions and export control laws, (ii) none of the Retailer, its Affiliates and other representatives is or is owned or controlled by any person targeted under the sanctions or export controls of the UN, US, UK, EU or any other relevant government, (iii) the Retailer will not engage in any business involving any such listed person and (iv) the Retailer will immediately inform Thule of any suspected or alleged breach of the foregoing. Following any reasonably suspected breach, Thule has the discretionary right to refuse further performance under this Agreement as well as terminate Thule’s relationship with the Retailer.
8. THULE QUALITATIVE REQUIREMENTS
1. Print and digital content requirements
The Retailer shall, insofar printed materials and digital content are to be used for the retail of the Products, only use official Thule materials and contents, such as, but not limited to, (i) Product and lifestyle images and videos, (ii) Product descriptions and feature texts, (iii) general Thule company story and information texts, (iv) Product instruction manuals, (v) Product spare part sheets and/or (vi) Thule Warranty manuals, unless otherwise is agreed in Writing between Thule and the Retailer.
2. General undertakings of the Retailer
Unless otherwise is agreed in Writing between Thule and the Retailer, the Retailer undertakes to:
- offer end-customer support by mail and/or phone (maximum 24 hours’ response time);
- offer end-customer support in regard of assembly and relevant safety handling;
- offer simple end-customer repair service in case repairs can be completed with Thule official spare parts;
- train and develop a qualified and capable sales force;
- only use advertising, sales and/or promotional materials provided or approved in Writing by Thule
9. USE OF THULE’S INTELLECTUAL PROPERTY RIGHTS
1. Thule shall at all times remain and be the sole and exclusive owner of all intellectual property rights in relation to the Products and the Product Information. The Retailer shall have no right, title or interest in the intellectual property provided by Thule except as explicitly agreed between the Parties. Hence, except as explicitly set forth in section 10. Hence, nothing in this Agreement shall be construed as assigning any license nor granting any rights under any patent, copyright, or other intellectual property right of Thule.
10. USE OF THE PRODUCT INFORMATION
1. The Retailer acknowledges and agrees that the Product Information is protected by intellectual property rights and that Thule has the exclusive right to determine how the Product Information may be copied or made available to the public.
2. Subject to the terms and conditions of this Agreement, Thule grants to the Retailer a nonexclusive, non-transferrable, non-sublicensable and revocable right to access and use the Product Information, free of charge, for the sole purpose of marketing and selling the Products during the term of and in accordance with this Agreement.
3. The Retailer may make available information contained in the Product Information to its customers in order to market and sell the Products, including but not limited to by incorporating the information into a configuration tool on the Retailer’s website to assist its customers in selecting suitable Products. However, the Retailer is not entitled to make available the Product Information, or any document contained therein, in its entirety.
4. For the avoidance of doubt, the Retailer is not entitled to; (i) transfer, assign, sell, lease, sublicense, modify, decompile, dissemble or reverse engineer the Product Information or any information contained in the Product Information, (ii) use the Product Information to create any derivative works or competitive products or share information contained in the Product Information except as explicitly set forth in section 10.3; or (iii) allow any third parties to access the Product Information except as explicitly set forth in section 10.3.
5. In order to access the Product Information, the Retailer must create an account on Thule.net. The Retailer is entirely responsible for providing up to date information and for maintaining confidentiality of the information provided in connection with the creation of its account. The Retailer undertakes to keep its password strictly confidential and not allow anyone else to use its account. In addition, the Retailer shall notify Thule immediately if the Retailer believes that its password or otherwise the security of the Product Information has been compromised.
6. Thule reserves the right to, at any time at its sole discretion, amend, delete or disable the Product Information or any information contained therein. Moreover, Thule may at any time and at its sole discretion terminate, suspend or limit the Retailer’s access to the Product Information without prior notice and without incurring any liability whatsoever if Thule has reason to believe that the Retailer uses the Product Information in breach of this Agreement.
7. The Retailer acknowledges and agrees that the Product Information is made available on an “as is” basis. Thule hereby disclaims any representations or warranties of any kind, whether express or implied, including without limitation, warranties of satisfactory quality, accessibility or fitness for a particular purpose and non-infringement of third party rights, and to the fullest extent permissible under applicable law, Thule does not warrant or represent that the Product Information will be free from any inaccuracies, interruptions, delays or errors, or that any of these will be corrected.
11. LIABILITY
1. Without prejudice to section 5.7 above, Thule shall in no event be liable or responsible for any indirect, incidental, punitive, exemplary, special or consequential damages (e.g. loss of profit, revenue, goodwill, etc.) sustained by the Retailer or any customer of the Retailer or any third party as a result of any cause associated with the Products, the Product Information or otherwise with this Agreement, including without limitation the delivery or non-delivery of Products or the performance or non-performance of any obligations under this Agreement.
2. Thule’s entire liability towards the Retailer as set forth in this Agreement shall not exceed the amount paid by the Retailer to Thule in respect of the order to which the claim relates.
3. The Retailer undertakes and agrees to promptly notify Thule of any product liability action initiated by a third party in respect of damage to property (other than the Product itself), death or personal injury arising from any fault or defects in the Products. The Retailer further undertakes and agrees not to settle and/or become involved in any such action without the prior Written consent of Thule.
4. The Retailer assumes complete and exclusive responsibility for any use or disposition by it of the Products and the Product Information and shall indemnify and hold Thule harmless against any claim which may be brought against Thule by any third parties (including employees of the Retailer) which may arise directly or indirectly out of any such use or disposition.
5. If the Retailer uses the Product Information for any other purpose than what is permitted pursuant to this Agreement or otherwise in breach of this Agreement, Thule shall be entitled to claim compensation for any damage, cost and expenses that such use may have caused Thule. In addition, the Retailer shall, upon written request of Thule, stop any such use immediately.
6. The provisions of this section 11 shall be unaffected by the termination of this Agreement or any part thereof and shall apply notwithstanding any other provisions in this Agreement or any other agreement between the Parties.
12. FORCE MAJEURE
1. Each Party shall be excused from the fulfilment of any obligation under this Agreement, except for any payment obligations, to the extent that and for so long as such performance is prevented or delayed in whole or in part by causes beyond its reasonable control or by force majeure causes such as, but not limited to, strikes, lock-outs or other labor disturbances or by fire, flood and other natural events, war, military mobilization and activities, embargoes, blockades, riots, governmental interference (including regulations, decisions and specific recommendations by relevant authorities), failure of the financial system, acts of God, pandemics and epidemics, delays or shortages in transportation, inability to obtain necessary labor and materials, breakdown of production equipment and other unforeseen disturbances in the production or the manufacturing facilities from Thule’s usual sources or from defaults, defects or delays in the performance of its suppliers or sub-contractors if caused by any circumstance referred to in this section 12.1.
2. In a situation of force majeure resulting in shortage of products, Thule may at Thule’s sole discretion allocate the products produced among its customers.
13. MISCELLANEOUS
1. Thule may wholly or partly assign its rights and obligations, including the entire Agreement, to an Affiliate. The Retailer may not assign this Agreement or any of its rights and obligations hereunder.
2. If any provisions of the Agreement (or part of a provision) are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
3. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
4. The fact that Thule has proposed these conditions shall not work to Thule’s disadvantage in case of any dispute. The Retailer is recommended to seek legal advice
14. TERMINATION
1. Without prejudice to Thule’s right to suspension or termination set forth elsewhere in this Agreement, Thule may terminate this Agreement with immediate effect by Written notice (i) if, in Thule’s reasonable opinion, the Retailer has or otherwise could be expected to default on its undertakings pursuant to section 3 and 4 above or otherwise retail the Products contrary to the Thule Qualitative Requirements, (ii) in case of failure by the Retailer to observe or perform any provision or obligation under this Agreement and such failure has not been remedied within fourteen (14) Business Days following Thule’s Written notice thereof, (iii) in case of the Retailer’s failure to observe and adhere to section 7 or 10 above, (iv) in case of voluntary or involuntary filing of bankruptcy, assignment of any of the Retailer’s assets for the benefit of its creditors, the appointment of a receiver or in case of any other action which would indicate the Retailer’s insolvency, (v) in case of change of the controlling ownership or management of the Retailer without the prior Written consent of Thule or (vi) in case that the Retailer or its representatives are convicted of a criminal offence which could have an adverse effect upon the reputation and goodwill of Thule and its Products.
2. The Retailer is entitled to terminate this Agreement with immediate effect by Written notice in case Thule fails to observe or perform any of its undertakings in this Agreement and such failure has not been remedied within thirty (30) Business Days following the Retailer’s Written notice thereof.
3. In the event the Agreement is terminated, the Retailer undertakes, upon Thule’s Written request, to sell back to Thule within sixty (60) Business Days from the date of Thule’s Written request, all of the Products held by the Retailer provided that such Products are still currently sold by Thule, are in new condition and in their original packaging and boxes. The price shall be the Retailer’s cost price at the time of the original purchase less any transportation charges and taxes.
4. In the event the Agreement is terminated, the Retailer undertakes to (i) cease to promote, market or sell the Products or to make any use of the Thule’s intellectual property rights, including but not limited to the Product Information and any information contain therein, Thule IP on the date of termination and (ii) return to Thule within thirty (30) Business Days from the date of the termination of the Agreement, all samples of the Products, parts and advertising, promotional and sales materials furnished by Thule to the Retailer under this Agreement.
5. In the event the Agreement is terminated, Thule shall have the right to wholly or partially cancel the sale of any or all undelivered Products pursuant to orders for Products submitted by the Retailer before the date of termination, including orders submitted prior to the date of the notice of termination.
15. APPLICABLE LAW AND DISPUTE RESOLUTION
1. This Agreement shall be governed by the substantive laws of Sweden, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to sales concluded under this Agreement.
2. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the SCC by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Malmö, Sweden. The language to be used in the arbitral proceedings shall be English. The confidentiality undertaking in this Agreement shall, mutatis mutandis, apply to the arbitral proceedings, the arbitration award and the fact that arbitration has been initiated.
3. Notwithstanding the foregoing, Thule shall be entitled, at its discretion, to have recourse to any competent court in relation to claims against the Retailer regarding payment of matured debts.