Darceys Sales Representative Agreement
This Agreement is between:
1 The person whose name is set out in the Online Application (‘”you” or “your”’); and
2 Darceys (Scotland) Ltd, a company incorporated in Scotland with registered number SC485840 whose registered office is at Unit B1 Olympic Business Park, Drybridge Road, Dundonald, Ayrshire, Scotland KA2 9AE (the “Company”).
(A) The Company carries on business as a supplier of home scenting products;
(B) You wish to be appointed as a self-employed Representative (as defined below);
(C) Such appointment will be on the terms set out in this Agreement.
Therefore it is agreed as follows;
1 Definitions and interpretation
1.1 In this Agreement, unless the context requires otherwise, the following words and phrases have the meanings set opposite them:
“Account” means your online account with the Company through which you will place Orders for Customers;
“Business Day” a day, other than a Saturday or Sunday, on which banks are open for normal business in Scotland;
“Commencement Date” means the date of acceptance of this Agreement;
“Confidential Information” all information or data (in whatever form) of a confidential or proprietary nature disclosed to or received by you (by any means), or to which you have access, whether or not labelled or designated as confidential, relating to the products, services, business or proposed business, finances, transactions, staff and affairs of the Company or any customer, supplier, employee or client of any such company, including Intellectual Property Rights, trade secrets, information in respect of which the Company is bound by an obligation of confidentiality to a third party and any other information which is designated as confidential by the Company or which you should reasonably be aware is confidential;
“Customer” means a third party to whom you, as a Representative, promote and sell Goods;
“DSA” means the UK Direct Selling Association;
“Engagement” the engagement of you by the Company in accordance with the terms of this Agreement;
“Force Majeure Event” has the meaning given in clause 14.3;
“Goods” means the Company’s products which you will advertise and sell throughout the course of the Engagement;
“Intellectual Property Rights” means the intellectual property rights of the Company including copyright, rights related to copyright such as moral rights and performers rights, patents, rights in inventions, rights to use and protect the confidentiality of confidential information (including, but not limited to know-how and trade secrets), trade marks, geographical indications, service marks, trade names, design rights, rights in get-up and trade dress, database rights, databases, data exclusivity rights, approvals, utility models, domain names, business names, rights in computer software, mask works, topography rights, the right to sue for infringement, unfair competition and passing off and all similar rights of whatever nature wherever in the world arising, in each case:
(a) whether registered or not,
(b) including any applications to protect or register such rights,
(c) including all renewals and extensions of such rights or applications,
(d) whether vested, contingent or future, and
(e) wherever existing;
“Online Application” means your online application submitted on the Website specifying your desire to become a Representative;
“Order” means an order for Goods;
“Personal Data” any information relating to a living individual who can be identified, directly or indirectly, in particular by reference to:
(a) an identifier such as a name, an identification number, location data or an online identifier, or
(b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;
“Representative” means a sales representative of the Company who carries out the Services;
“Sale” means a sale of Goods by you, as a Representative, to a Customer;
“Services” means the promotion and resale of the Goods ;
“Termination Date” the date upon which your engagement with the Company under this Agreement terminates for whatever reason;
“Territory” means the United Kingdom, Channel Islands and Isle of Man; and
“Website” means www.darceyscandles.co.uk.
1.2 In this Agreement:
1.2.1 the Schedule is incorporated into and forms part of this Agreement;
1.2.2 any reference to this Agreement or to any other document will include its Schedules, appendices and annexes (if any) and any permitted variation or amendment to this Agreement or such other document;
1.2.3 any reference to a clause or Schedule is, except where expressly stated to the contrary, reference to the relevant clause of or Schedule to this Agreement;
1.2.4 the table of contents, background section and any clause, Schedule or other headings and the use of bold type in this Agreement are included for ease of reference only and will not affect the construction or interpretation of any provision of this Agreement;
1.2.5 any reference to any statute, statutory instrument, order, regulation or other similar instrument (including any EU order, regulation or instrument) will be construed as including references to any statutory modification, consideration or re-enactment of that provision (whether before, on or after the date of this Agreement) for the time being in force, including all instruments, orders or regulations then in force and made under or deriving validity from that legislation;
1.2.6 the words ‘include’, ‘including’, ‘in particular’ or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms;
1.2.7 the use of the singular includes the plural and vice versa and words denoting any gender will include a reference to each other gender;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.9 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.10 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns; and
1.2.11 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established.
2 Appointment, status and duration of engagement
2.1 By agreeing to the terms of this Agreement, you will be appointed, on a non-exclusive basis, as a Representative. You will receive an email from the Company confirming your appointment. Such email shall be directed to the email address you provided in your Online Application.
2.2 Subject to the terms of this Agreement, your Engagement will commence on the Commencement Date and will continue unless or until either party gives to the other not less than 1 week’s notice in writing to terminate this Agreement.
2.3 You must adhere to the standards and principles of behaviour set out in the “Consumer Code of Practice” and “Code of Business Conduct” as issued by the DSA from time to time and comply with your obligations under the Consumer Rights Act 2015 (as amended or re-enacted from time to time).
2.4 You shall carry out the Services in good faith and advertise, promote and sell the Goods in a responsible manner, in accordance with industry standards and any guidance or code of conduct issued by the DSA from time to time.
2.5 You acknowledge that in all correspondence (whether by email, on social media, over telephone, in person or otherwise) with any other Representatives and any directors, officers, employees or ambassadors of the Company you must at all times remain respectful and not say anything which is derogatory or which may cause offence or alarm.
2.6 If, in the Company’s sole discretion, you are in breach of clause 2.5, the Company will be entitled to terminate this Agreement with immediate effect with no further obligation to make any further payment to you (other than in respect of amounts accrued prior to the Termination Date).
3 Provision of services
3.1 You will provide the Services to the Company in accordance with the terms set out in this Agreement. You will provide the Services with all due skill, care and diligence.
3.2 You must at all times comply with the Company’s policies and procedures. Failure to do so may result in the immediate termination of your Engagement.
3.3 You must comply with the Bribery Act 2010 and the Company’s anti-bribery and corruption policy. Failure to do so may result in the immediate termination of your Engagement.
3.4 You shall not act in any manner or make any statement (in any medium, including on social media) which may, in the Company’s sole opinion, cause damage to the reputation of the Company or the Goods.
4.1 You agree to seek Orders from Customers for future deliveries.
4.2 You may submit an Order to the Company through your Account, after which the Company will send you an email acknowledging that it has received your Order.
4.3 Once the Company has dispatched your Order, a dispatch confirmation will be sent to you. The contract for the supply of Goods is only formed once the Company has sent the dispatch confirmation.
4.4 Availability of Goods may vary from time to time.
4.5 If the Company fails to deliver the Goods, its liability is limited to the replacement of the Goods or the refund value of the affected Goods. The Company will not be liable to the extent that the non-delivery is caused by events outside its control.
4.6 The Company reserves the right to change the prices of its Goods at any time (other than where you have already placed an Order) and in its sole discretion, and the Company shall be entitled to charge delivery of handling fees, as communicated to you from time to time.
4.7 Goods will only be delivered in the Territory.
4.8 Risk of loss will pass to you upon delivery. Title to the Goods shall pass to you upon payment.
4.9 The Company reserves the right to cancel any Order placed by you where:
4.9.1 you attempt to purchase quantities of Goods over and above the levels deemed reasonable by the Company (acting in its sole discretion);
4.9.2 the Company reasonably believes that you are bulk buying Goods when they are on offer, without having received an Order for the Goods from a Customer;
4.9.3 the Company reasonably believes that you have made use of a Customer only discount code that it has promoted; and
4.9.4 more than one promotional code or discount was used when submitting an Order (unless expressly permitted by the terms and conditions of the discount code or offer).
4.10 If you receive Goods pursuant to an Order and subsequently wish to return the Goods to the Company, you must contact the Company to request to return the Goods. The Company will confirm in writing to the email address linked to your Account if it accepts your request. The Company reserves the right to reject any request from you to return the Goods.
4.11 If the Company agrees to allow you to return the Goods in accordance with clause 4.10 above, the Company will only accept a return of the Goods if the Goods are unused and received by the Company in the same condition as they were sent to you. You are responsible for paying for the postage of the Goods in these circumstances. The Company will issue a refund in respect of the Goods returned to your bank account (details of which you will have provided to the Company when placing the Order for the Goods concerned).
4.12 For the purposes of your relationship with the Company, you acknowledge and agree that when ordering from the Company in your capacity as a Representative that those Orders are made by you in your Representative capacity and are not subject to any consumer rights under consumer protection legislation.
5 Marketing communications
5.1 All communications sent by you in your capacity as a Representative shall comply with this Agreement. You are responsible for ensuring compliance with all applicable communication and marketing laws.
5.2 You shall not send marketing or other commercial communications on behalf of the Company or in the Company’s name or that give the impression that the message originated from the Company.
5.3 Before sending any marketing communication to any individual, you must obtain their consent. You must keep a record of the consent, each individual’s marketing preferences and the date on which the consent was provided.
5.4 Any marketing communication you send must include information regarding the individual’s right to opt-out of future marketing communication. You agree and warrant that you will action any request regarding communication preferences promptly after receipt of such request.
5.5 All communications in whatever format must identify you as the sender of the communication and, where applicable, an option for the recipient to opt-out of future communications.
5.6 You must ensure that you have the necessary licences and/or permits required in order to conduct the Services.
5.7 You will not conduct any spamming or similar activity. Spamming includes, but is not limited to: i) sending unsolicited communication that contains any email or web addresses connected to your Account; (ii) posting messages that contain your Company details in social media groups that are unrelated to the Services; and (iii) sending unsolicited communications to individuals who have not consented to receiving communications from you.
6 Other activities
6.1 You warrant that you will not as a consequence of entering into and performing your obligations set out in this Agreement be in breach of any express or implied terms of any contract, agreement or other arrangement with, or any obligation to, any third party which is binding upon you, and there is no contract, agreement, or other arrangement or interest that will or may give rise to any conflict of interest between you and the Company in relation to the provision of the Services.
6.2 Subject to clause 6.1, you may have any interest in or advise or act as a consultant to or become an employee of any business provided that you will not, at any time during your Engagement, without the prior written consent of the Company, be involved in any capacity with any business which carries on, or may carry on, business in direct, or indirect, competition with the Company. If you are in any doubt as to the legitimacy of your involvement with any other business, you must notify the Company promptly in writing.
7.1 Where you place an Order through your Account, you will receive a 25% discount on the advertised sale price excluding delivery. You may resell the Goods at whatever price you wish but Customers will be aware of the prices shown on the Website and may place orders with us directly.
7.2 There may be premium and other offers from time to time which the Company will notify you of.
7.3 No payment for any Services will be made by the Company. Remuneration is not determined by the number of hours worked. You are not assured of any profit or success.
You will be responsible for all out-of-pocket expenses and normal overhead expenditure incurred by you in the provision of the Services. For the avoidance of doubt you will not be reimbursed separately for these expenses.
9 Tax and national insurance
9.1 You acknowledge that the Company will not be operating PAYE or making or deducting any national insurance contributions in respect of your provision of the Services.
9.2 You will be responsible for, and will account to the appropriate authorities for, all income tax liabilities and national insurance or similar contributions payable in respect of any earnings you make.
9.3 If any claim, assessment or demand is made against the Company for payment of income tax or national insurance contributions or other similar contributions due in respect any earnings you make, you will indemnify the Company against any liability, assessment or claim together with all reasonable costs and expenses and any penalty, fine or interest incurred or payable by the Company in connection with or in consequence of any such liability, assessment or claim, where such recovery is not prohibited by law. The Company may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments to be made by the Company to you under this Agreement.
10 No employment or benefits
10.1 Under this Agreement you will be an independent contractor and as such will not be entitled to any pension, bonus, holiday, sickness or other fringe benefits from the Company. Nothing in the terms of this Agreement will render you an agent, officer or employee, worker or partner of the Company and you will not hold yourself out as such.
10.2 You will be fully responsible for and hereby indemnify the Company for and in respect of any liability (including reasonable costs and expenses) for any employment-related claim or any claim based on worker status brought by you against the Company arising out of or in connection with the provision of the Services except where such claim is as a result of any act or omission of the Company.
10.3 You will not portray yourself as having any authority to bind the Company nor to incur any liability on behalf of the Company.
11 Confidential information
11.1 Except in the proper performance of your obligations under this Agreement, you will not during the period of this Agreement or at any time after the Termination Date, without the prior written approval of the Company (such approval not to be unreasonably withheld) use for your own benefit or for the benefit of any other person, firm, company or organisation, or directly or indirectly disclose to any person any Confidential Information which has come to your knowledge during or in connection with the Engagement.
11.2 You will not during the period of this Agreement make (otherwise than for the benefit of the Company) any notes, memoranda, records, tape recordings, computer programs or any other form of record relating to any matter within the scope of the business of the Company or concerning any of the dealings or affairs of the Company.
11.3 The restrictions contained in this clause 11 will not apply to:
11.3.1 any Confidential Information which is already in or (otherwise than through your unauthorised disclosure) becomes available to, or within the knowledge of, the public generally; or
11.3.2 any use or disclosure authorised by the Company or required or protected by law.
12 Intellectual property
12.1 The Company owns the Intellectual Property Rights and, subject to clause 12.2, you shall acquire no right, title and interest in and to the Intellectual Property Rights.
12.2 For the term of this Agreement the Company hereby grants you a royalty-free, non-transferable, non-exclusive licence to use, copy and otherwise utilise the Intellectual Property Rights to the extent necessary to perform or provide the Services under this Agreement. Any such use must be in accordance with any instructions or guidance issued by the Company from time to time and if the Company is not content with your use of such Intellectual Property Rights it may enitrely in its discretion require you to cease such use at any time.
12.3 You warrant that you will not in the course of providing the Services infringe the intellectual property rights of any other person.
13 Data protection and monitoring
13.1 You warrant that you will comply with your obligations under the General Data Protection Regulation, EU 2016/679 (GDPR), the Data Protection Act 2018 (DPA 2018) and under the Company’s data protection policy and other relevant policies.
13.2 Without prejudice to the generality of clause 13.1, you will:
13.2.1 co-operate fully with the Company in order to enable the Company to comply with its obligations under applicable data protection legislation;
13.2.2 implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of Personal Data and against accidental loss and destruction of or damage to Personal Data;
13.2.3 process any Personal Data disclosed to you by or on behalf of the Company only for the purposes of providing the Services and only for the purposes for which that Personal Data was obtained and is processed by the Company
13.2.4 not transfer any Personal Data outside the UK and/or the European Economic Area (EEA) without the Company’s prior written consent;
13.2.5 immediately provide such evidence of your compliance with your obligations under this clause 13 as the Company may from time to time reasonably request;
13.2.6 immediately upon notification by the Company, take all appropriate action to enable the Company to properly comply with any request from a data subject in relation to access to and/or rectification or erasure of Personal Data; and
13.2.7 immediately notify the Company of any data breach relating to Personal Data about which you become aware.
14.1 Notwithstanding the provisions of clause 2 and subject to the provisions of clause 14.3, the Company may terminate this Agreement with immediate effect with no further obligation to make any further payment to you (other than in respect of amounts accrued prior to the Termination Date) by written notice to you, if, at any time:
14.1.1 you commit any serious or repeated breach or non-observance of any of the terms or conditions of this Agreement; or
14.1.2 you are in material breach of any of your obligations set out in this Agreement; and
14.1.3 other than by reason of incapacity by accident or illness you are unable to provide the Services in a proper and efficient manner or are in the reasonable opinion of the Company wilfully negligent or incompetent in the performance of the Services, or fail to remedy any default in the provision of the Services.
14.2 Any delay by the Company in exercising any of its rights to terminate will not constitute a waiver of those rights.
14.3 Neither party will be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement occasioned by any act of God, fire, act of government or state, disease, epidemic, pandemic, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of either party (each a Force Majeure Event). If either party is unable to perform its duties and obligations under this Agreement as a direct result of the effect of a Force Majeure Event, that party will give written notice to the other of the inability, stating the Force Majeure Event in question. The operation of this Agreement including clause 14.1 will be suspended for the period (and only during the period) during which the Force Majeure Event continues. Immediately upon the Force Majeure Event ceasing to exist, the party relying upon it will give written notice to the other of this fact.
15 Obligations on termination
15.1 You will immediately upon termination of the Engagement, and at any time on request, surrender to a person duly authorised by the Company all computer programs, reports, manuals, files, notes, accounts, documents, correspondence, books, materials, papers and information (on whatever media and wherever located) any keys and any other property of the Company that have been made or received by you during the course of providing the Services and which are in your possession or under your control.
15.2 Subject to the Company’s data retention guidelines, you will immediately upon termination of the Engagement irrevocably delete any information relating to the business of the Company stored in any magnetic or optical drive or memory, and all matter derived from such sources, which is in your possession or under your control outside the premises of the Company.
16.1 Except as otherwise provided in this Agreement, all notices, instructions or other communications shall be in writing and may be made by letter or other form of communication as agreed between the parties from time to time, and delivered to the requisite party at its last notified address.
16.2 Notices may be given, and shall be deemed received:
16.2.1 by first-class post: two Business Days after posting;
16.2.2 by hand: on delivery; and
16.2.3 by email to [address] in the case of the Company and the email address linked to your Account: 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received.
16.3 You expressly authorise the Company to issue communications electronically by email (to the email address linked to your Account) or posting messages or notices on the Website (or such other website as the Company may notify you from time to time) and any such communication shall be deemed appropriate as written notice.
16.4 This clause does not apply to notices given in legal proceedings or arbitration.
17 Entire agreement
This Agreement constitutes the entire and only legally binding agreement between the parties relating to the Engagement and supersedes any previous understandings, arrangements, representations, negotiations or agreements between the parties, provided that nothing in this clause 17 will have effect to exclude the liability of either party for fraud or fraudulent misrepresentation.
18 Further assurance
Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.
No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
20 Set off
Except as expressly set out in this Agreement party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
21 No partnership or agency
Nothing in this Agreement constitutes, or shall be deemed to constitute, a partnership between the parties nor make any party the agent of another party.
22 Remedies and waiver
Any remedy or right conferred upon the Company for breach of this Agreement will be in addition to and without prejudice to all other rights and remedies available to it. No failure or delay by the Company in exercising any remedy, right, power or privilege under or in relation to this Agreement will operate as a waiver of that or any other right, power, remedy or privilege of the Company, nor will any single or partial exercise of any right, power, remedy or privilege preclude any other or further exercise of that or any other right, power, remedy or privilege.
If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
24 Third party rights
This Agreement does not create any rights in favour of third parties under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce or otherwise invoke any provision of this Agreement.
25 Governing law
This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Scotland.
The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).