EXCLUSIVE DISTRIBUTORSHIP AGREEMENT # ABC/MM/YYYY

Transcription

1 EXCLUSIVE DISTRIBUTORSHIP AGREEMENT # ABC/MM/YYYY This Exclusive Distributorship Agreement ("Agreement") is made and effective this [Date] between Distributor, and Manufacturer. Manufacturer desires to appoint Distributor and Distributor desires to accept appointment as exclusive distributor of Manufacturer's products within defined Territory as set forth herein. Manufacturer desires to appoint Agent and Agent desires to accept appointment, as exclusive agent of Manufacturer for exports to defined Territory as set forth herein. Now, therefore, in consideration of the mutual agreements and promises set forth herein, the parties agree as follows: 1. Definitions. In construing this Agreement, unless the context otherwise requires, the word or term: 1.1. Distributor means South East Commerce Corp., Florida Corporation, which Registered Name is South East Commerce Corporation; DBA/Trade Name is South East Commerce Corporation; Registered Address is 5201 Blue Lagoon Dr., 9th Floor, Miami, Florida 33126, U.S.A; Basic Permit No FL-I Manufacturer means [Name], which Registered Name is [Name]; DBA/Trade Name is [Name]; Registered Address is [Address], Plant Registry/Permit/License No [Number], and represented by Agent Agent means [Name of physical person or Company], which Registered Name/Name is [Name]; DBA/Trade Name is [Name if required]; Registered Address/Address is [Address], License No [Number, if required], representing Manufacturer with Power of Attorney Parties means Distributor, Manufacturer and Agent Product means product, physically made/processed by Manufacturer at Facility and listed in Supplement(s) to this Agreement Facility means U.S. FDA registered food facility under Manufacturer s management which is used for manufacturing/processing, packing or holding of Product Purchase Order or Order means single Distributor s order for purchase of Product from Manufacturer for further resale Good Faith means honesty in fact in the conduct or transaction Sale includes issuance, transfer, agreement for transfer, exchange, pledge, hypothecation, or mortgage in any manner or form, whether by transfer in trust or otherwise, of Product or of any franchise related thereto for a consideration and any option, subscription, or other contract, or solicitation, looking to a sale, or offer or attempt to sell in any form whether in oral or written form, for a consideration Retaliatory Action includes, but is not limited to, the refusal to continue this Agreement or a material reduction in the quality or quantity of Product available to Distributor under this Agreement which refusal or reduction is not made in good faith Termination means any of termination, cancellation, non-renewal, or discontinuance of this Agreement Territory means the territory of [Defined Territory: United States of America for distribution; Mexico and Canada for re-export, however some states/provinces may be restricted/excluded if Manufacturer is actually doing business there] and may be extended upon mutual agreement between the Parties. 2. Rights Granted. Form SECC D-21A 1

2 2.1. Manufacturer hereby grants to Distributor the exclusive right, on the terms and conditions contained herein, to purchase, inventory, promote and sell Product within Territory Manufacturer shall not grant any other person, company or undertaking (including any subsidiary or affiliate of Manufacturer) to purchase, inventory, promote and sell Product within Territory Manufacturer declares that at the date of this Agreement no valid right to purchase, inventory, promote and sell Product within Territory is granted to any other person, company or undertaking (including any subsidiary r affiliate of Manufacturer) except Distributor Manufacturer shall not provide any direct or indirect Sale to any other customer established in the Territory except pursuant to this contract between Manufacturer and Distributor, which means territorial exclusivity for Distributor Manufacturer shall not make any Sale of Product to any customers outside Territory, when Manufacturer knows, or should reasonably know, that such customers intend to resell Product within Territory. Manufacturer shall also impose on its other distributors, if any, an obligation corresponding to that under this section If Manufacturer decides to market any other products in Territory, it shall so inform Distributor in order to discuss the possibility of including such other products within Product defined under section Terms of Sale and Orders Processing All Sales of Product to Distributor shall be made pursuant to this Agreement and shall be governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980). In case of the conflict between such general conditions and the terms of this Agreement, the latter shall prevail Orders shall be placed to Manufacturer by or fax and must be executed by Manufacturer within maximum 7 days from the date of corresponding Order placing Shipping Unit of Product is set as one Euro-pallet (EPAL 120x80 cm) of [assorted or single] Product with gross weight of max 2200 lbs (1000 kg). Each Order may contain any number of Shipping Units, but not less than [Number] and not more than [Number] Manufacturer shall properly pack Product for LTL/LCL/LTL overseas shipment, wrap, seal and mark each Shipping Unit Distributor can place any number of Orders for available Product Distributor may, at any time before shipment, terminate Order by written notice send by or fax to Manufacturer In case of Order termination within 3 days from its date, Distributor shall have no liability for this termination In case of Order termination after 3 days from its date, any claim of Manufacturer, limited to the reasonable actual cost incurred by Manufacturer for execution of Order, shall be settled by Distributor. Alternatively, Distributor has an option of including Product from cancelled Order into its next Orders within 45 days from date of cancellation which shall void Manufacturer s cancellation claim In case of Order s shipment delay beyond the maximal time indicated in Section 3.2 of this Agreement for more than 3 days for any reason including, without limitation, Manufacturer's insolvency, bankruptcy or assignment for the benefit of creditors, Distributor can cancel the Order without liability by written notice send to Manufacturer by or fax Manufacturer is obliged to notify Distributor by or fax about any Product shortage at least 24 hours before this shortage taking effect, as well as about the production stoppage and/or Force Major Circumstance (with immediate effect), which could obstacle Manufacturer from the acceptance and/or execution of Orders Product for which Manufacturer has not notified Distributor as per Section 3.10 of this Agreement shall be treated as available and no special Order s acceptance by Manufacturer is required Delivery of Product to Distributor shall be on the term of FCA Manufacturer s Works (INCOTERMS 2000) at Facility Address as per Clause 1.6 of this Agreement Manufacturer guarantees supply of Product with quality, packing, and labeling which meets standards requirements of the United States Government Authorities (U.S. Customs, FDA, TTB where applicable etc). Manufacturer guarantees continuous and stabile quality of Product Manufacturer shall follow any demands of the United States Government Authorities to the foreign suppliers of food for consumption in the United States Cargo documents, accompanying each Order shall be arranged by Manufacturer in English in form satisfactory for the United States Government Authorities. Manufacturer shall be mentioned as Shipper in all cargo documents. Form SECC D-21A 2

3 3.16. Shipping Instructions shall be provided by Distributor before placing of the first Order Manufacturer is granting Order s Total Amount and Annual Total Purchase Amount Discounts to Distributor Order s Total Amount Discounts shall be granted directly on Invoice according to the total pick-up quantity per delivery as per schedule: Order s Total Amount ($) Discount (%) Up to.000 no discount x [Shall be agreed] y [Shall be agreed] Over.000 z [Shall be agreed] Annual Total Purchase Amount Discounts shall be paid to Distributor s account annually at the first decade of next coming year and shall be based on the total amounts of Distributor s Orders in each previous year as per following schedule: Annual Total Purchase Amount ($) Discount (%) Up to.000 no discount x1 [Shall be agreed] y1 [Shall be agreed] Over.000 z1 [Shall be agreed] If any laboratory tests or pre-approvals of Product or Manufacturer s Facilities required by the United States Government Authorities, such tests or pre-approvals shall be arranged by Manufacturer at its cost For Alcoholic Beverages only: Approval of the Product s labels (COLA) with Alcohol and Tobacco Tax and Trade Bureau (TTB) shall be arranged by Distributor at its cost. The licensure of the Product as Primary American Source of Supply (PASS) shall be arranged by Distributor, but the obligatory annual PASS license fees for each Product that requires COLAs ($30 for Beer and Distilled Spirit and $15 for wine per annum) shall be for Manufacturer s account Distributor shall exercise due diligence to the best of its knowledge to keep Manufacturer informed about the laws and regulations which are applicable in the Territory and related to the Product (e.g. import regulations, labeling, technical specifications, safety requirements etc) Manufacturer shall keep Distributor informed of any relevant communication with any customers, potential customers or any other potential clients in the Territory Within latest 7 days from this Agreement s date Distributor shall provide Manufacturer with information about United States Government Authorities demands to the processing, quality, packing and labeling of the Product for consumption in the United States, which Manufacturer reasonable needs for carrying out its obligations under this Agreement. This information shall be provided to assist Manufacturer and to the best of Distributor s knowledge and without any responsibility on Distributor. Manufacturer acknowledges that this information shall be provided by Distributor for assistance only and supply of the Product as per Section 3.13 of this Agreement is sole responsibility of Manufacturer Within latest 7 days from this Agreement s date Manufacturer shall provide Distributor with copies of files related to Product (labels, photos, descriptions etc.), and Manufacturer (logotype, presentation wording, awards, certificates, if any, as well as copy of Facility Registration with U.S. FDA - DHHS/FDA Food Facility Registration Form), which Distributor reasonable needs for carrying out its obligations under this Agreement. 4. Payment. [Shall be inserted one of terms from SECC PAYMENT TERMS Exporter] 4.2. Distributor s duty for payment is limited to payment of Product price only. Distributor is not obliged to pay any fee or commissions to Manufacturer s employees, agents or representatives. 5. Marketing Policies Distributor shall promote vigorously and effectively the sales of Product in the Territory in conformity with the Distributor's established marketing policies and programs. Form SECC D-21A 3

4 5.2. Distributor is authorized to enter into written agreements with its agents/dealers/sub-distributors relating to the resale of Product in the Territory. 6. Distributor's General Duties Distributor shall maintain a place of business in the Territory Distributor shall hire sales personnel or appoint representatives to introduce, promote, market and sell Product in the Territory Distributor undertakes, during each year, to place Orders for not less than $nnnnn. [Amount], but for 2005 this minimum sales target shall be set as 50%, for 2006 as 75%, for 2007 and all further years for indefinite period as 100% of the above value. For 2004 no minimum sales target is agreed If at the end of the year the above minimum target has not been attained, and Manufacturer proves that such non-attainment is responsibility of Distributor, Manufacturer shall be entitled, but not obliged, subject to giving one month s notice, at its choice, to cancel Distributor s exclusivity, or to reduce the extent of Territory. This right must however be exercised in writing not later than one month after the end of the year in which the minimum target has not attained. 7. Sales Policies and Merchandising Policies Manufacturer shall provide Distributor with merchandising assistance from time to time in the form of advertising programs, Product and sales training and sales promotions at no cost Distributor agrees to use such assistance in carrying out Manufacturer's merchandising and sales promotion policies. 8. Advertising, Fairs and Exhibitions Manufacturer shall cooperate with Distributor and its dealers in providing for continuous and effective advertising and promotion of Product throughout Territory Nothing herein shall prevent Distributor from independently advertising and marketing Products within the Territory provided the form and content of the advertising or marketing materials are approved by Manufacturer in advance Each Party shall bear its own advertising expenses as well as its own expenses for participation in fairs and exhibitions i.e. Manufacturer is not responsible for Distributor s expenses and Distributor is not responsible for Manufacturer s expenses. 9. Product Warranty Policies In the event if Product is proved to have been defective or broken at the time of sale to Distributor, Manufacturer shall make an appropriate adjustment in the original sales price of such Product or, at Manufacturer's election, replace the defective Product Manufacturer shall provide to Distributor information with respect to Manufacturer's limited warranty extended to the original consumer of the Product. 10. Indemnification Manufacturer agrees to protect Distributor and hold Distributor harmless from any loss, claim, judgments, decrees costs and expenses resulting from any alleged infringement and to defend at the Distributor s request, at its own expense any action which may be brought against Distributor and/or Manufacturer under a claim arising out of inherent defects in Product existing at the time such Product is sold by Manufacturer to Distributor, or from any trademark and /or patent infringement in the use or sales of the Product or from conflict of interest with other distributors, appointed by Manufacturer for distribution of its products on the Territory Manufacturer shall ensure the quality and fitness of Product for the reasonable use for which it is intended and shall save Distributor harmless from any suit, claim, judgment or liability directly related to such quality and fitness of Product. Form SECC D-21A 4

5 10.3. Manufacturer hereby confirming that it has proper assets and/or insurance policy for coverage of this indemnity. 11. Financial Policies Distributor acknowledges the importance to Manufacturer of Distributor's sound financial operation Distributor expressly agrees that: It shall maintain and employ in connection with Distributor's business and operations under this Agreement such financial instruments as may be required to enable Distributor properly and fully to carry out and perform all of Distributor's duties, obligations and responsibilities under this Agreement Distributor shall pay promptly all amounts due the Manufacturer in accordance with Section of this Agreement. 12. Use of Manufacturer's Name Distributor shall not use, authorize or permit the use of, the name of Manufacturer or any other trademark or trade name owned by Manufacturer as part of its firm, corporate or business name in any way Distributor shall not contest the right of Manufacturer to exclusive use of any trademark or trade name used or claimed by Manufacturer unless it will be agreed by the Parties Distributor may, subject to Manufacturer's policies regarding reproduction of same, utilize Manufacturer's name, trademarks or logos in advertising on stationery and business cards including exclusive distributor of. 13. Relationship of the Parties The relationship between Manufacturer and Distributor is that of vendor and vendee Distributor, its agents and employees shall, under no circumstances, be deemed employees, agents or representatives of Manufacturer The Distributor shall not modify the Product without written permission from the Manufacturer Neither Party shall have any right to enter into any contract or commitment in the name of, or on behalf of the other, or to bind the other in any respect whatsoever. 14. Term and Termination This Agreement is concluded for an indefinite period. Unless earlier terminated as provided below, the term of this Agreement shall commence at the effective date as above Notwithstanding any agreement and except as otherwise provided for in this section, Manufacturer shall not cause Distributor to resign from this Agreement, or terminate this Agreement unless Manufacturer has complied with all of the following: Has satisfied the applicable notice requirements of section Has acted in good faith Has Good Cause for Termination as per section Good Cause for Termination. Good Cause shall exist for the purposes of a termination of this Agreement under subsection when all of the following occur: There is a failure by Distributor to comply with a provision of the agreement, which is both reasonable and of material significance to the business relationship between Distributor and Manufacturer Manufacturer first acquired knowledge of the failure described in subsection 15.1 not more than 18 months before the date notification was given pursuant to section Distributor was given by Manufacturer the written notice of failure to comply with this Agreement Distributor was afforded a reasonable opportunity to assert good faith efforts to comply with this Agreement within the time limits provided in subsection Distributor has been afforded 30 days in which to submit a plan of corrective action to comply with this Agreement and an additional 90 days to cure such noncompliance in accordance with the plan or to sell its distributorship consistent with the provisions of this section. Form SECC D-21A 5

6 16. Burden of Proof For Termination Manufacturer shall have the burden of showing that it has acted in good faith, that the notice requirements under this section have been complied with, and that there was good cause for the termination, cancellation, non-renewal, or discontinuance. 17. Notice of Termination Notwithstanding any agreement and except as otherwise provided in this section, Manufacturer shall furnish written Notice of Termination of this Agreement to Distributor not less than 90 days before the effective date of the termination The notice shall be sent by certified mail and shall contain all of the following: A statement of intention to terminate this Agreement A statement of the reason for Termination The date on which Termination takes effect 18. Obligations on Termination. On termination of this Agreement, Distributor shall cease to be an authorized distributor of Manufacturer and: All amounts owing by Distributor to Manufacturer shall, notwithstanding prior terms of sale, become due and payable All unshipped Orders placed before the date of termination shall be shipped Neither party shall be liable to the other because of such Termination for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales, or on account of expenditures, investments, lease or commitments in connection with the business or goodwill of Manufacturer or Distributor or for any other reason whatsoever growing out of such termination in case such termination was made with a Good Cause as per section If Manufacturer terminates this Agreement without Good Cause, the Manufacturer shall pay to Distributor reasonable compensation for the diminished value of Distributor s business which has been negatively affected by the act of Manufacturer. In the event Manufacturer and Distributor will be unable to mutually agree on the reasonable compensation to be paid for diminished value of Distributor s business, as defined herein, the evaluation of this diminished value of Distributor s business shall be made by the local competent court at Distributor s country. 19. Use of Name Prohibited On termination of this Agreement, Distributor shall remove and not thereafter use any sign containing any trade name, logo or trademark of Manufacturer, and shall immediately destroy all stationery, advertising matter and other printed matter in its possession or under its control containing such name, or any of Manufacturer's trademarks, trade names or logos Distributor shall not at any time after such termination use or permit any such trademark, trade name or logo to be used in any manner in connection with any business conducted by it or in which it may have an interest, or otherwise whatsoever as descriptive of or referring to anything other than Product of Manufacturer Regardless of the cause of termination, Distributor shall immediately take all appropriate steps to remove and cancel its listings in telephone books, and other directories, and public records, or elsewhere that contain Manufacturer's name, logo or trademark. If Distributor fails to obtain such removals or cancellations promptly, Manufacturer may make application for such removals or cancellations on behalf of Distributor and in Distributor's name and in such event Distributor will render assistance. 20. Acknowledgments Each Party acknowledges that no representation or statement, and no understanding or agreement, has been made, or exists, and that in entering into this Agreement each Party has not relied on anything done or said or on any presumption in fact or in law: Form SECC D-21A 6

7 With respect to this Agreement, or to the duration, termination or renewal of this Agreement, or with respect to the relationship between the parties, other than as expressly set forth in this Agreement; or That in any way tends to change or modify the terms, or any of them, of this Agreement or to prevent this Agreement becoming effective; or That in any way affects or relates to the subject matter hereof Parties also acknowledge that the terms and conditions of this Agreement, and each of them, are reasonable, fair and equitable. 21. Assignment This Agreement and any interest in this Agreement may be assigned by Distributor without the prior express written approval of Manufacturer. 22. No Implied Waivers Except as expressly provided in this Agreement, waiver by either party, or failure by either party to claim a default, of any provision of this Agreement shall not be a waiver of any default or subsequent default. 23. Notices and Communication Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services or by fax or by in sender s option. If to Manufacturer: [Manufacturer's Mailing Address, fax number and address] If to Distributor: South East Commerce Corp Blue Lagoon Dr. 9th Floor (Penthouse), Miami, Florida , U.S.A. Fax: purchase@seccorp.com Parties are obligated to be accessible i.e. to keep above mailing addresses, fax numbers and addresses in order for communication with each other. Parties are obliged to collect s from the addresses mentioned in this Agreement at least twice a day of each working day: once before noon and once after noon of their local time In case of mailing address, fax number or address change each Party is obliged to notify another within one working day. 24. Unlawful Acts and Practices The parties understand, that unfair methods of competition and unfair or deceptive acts or practices as defined in section 25, are declared to be unlawful. 25. Unfair and Prohibited Acts It shall be deemed a violation of the section 24 for the Manufacturer or the Distributor to engage in any action which is in bad faith or unconscionable and which causes damage in terms of law or equity to any of the Parties or to the public It shall be deemed a violation of the section 24 for the Manufacturer or officer, agent, or other representative thereof: To coerce or compel, or attempt to coerce or compel Distributor to order or accept delivery of the Product which Distributor has not voluntarily ordered. Form SECC D-21A 7

8 To refuse delivery of Product in reasonable quantities and within a reasonable time after receipt of Order. However, the failure to deliver Product shall not be considered a violation of this section if such failure is due to Force Major Circumstance To coerce or compel, or attempt to coerce or compel Distributor to enter into any agreement, whether written or oral with Manufacturer or its officer, agent, or other representative thereof, or to do any other act prejudicial to Distributor, by threatening to cancel this Agreement To terminate this Agreement without good cause as defined in section To willfully discriminate, either directly or indirectly, in price offered to Distributor where the effect of such discrimination is likely to substantially lessen competition To prevent or attempt to prevent Distributor, by contract or otherwise, from changing the capital structure of his distributorship or the means by or through which he finances the operation of his distributorship To prevent or attempt to prevent, by contract or otherwise, Distributor or any its officer, member, partner, or stockholder of Distributor from selling or transferring any part of the interest of any of them to any other person or persons or party or parties To fix or maintain, the price at which the Distributor may resell Product To coerce or attempt to coerce Distributor to accept delivery of Product ordered by Distributor if Distributor properly cancelled the order To change Distributor s quota, if any, of a brand or brands if the change is not made in good faith To require Distributor, by any means, to participate in or contribute to any local, national or international advertising fund controlled directly or indirectly by Manufacturer To take any Retaliatory Action against Distributor. 26. Force Major Circumstance Parties shall have no liability or responsibility for the consequences arising out of the interruption of their business by Acts of God, epidemics, riots, civil commotions, insurrections, wars, strikes or lockouts or any other causes beyond their control. 27. Arbitration Any dispute arising out of or in connection with the present Agreement shall be finally settled in the London Court of International Arbitration (LCIA) for violations of this Agreement in accordance with the provisions of LCIA Rules Any questions relating to this Agreement which are not expressly or implicitly settled by the provisions contained in this Agreement shall be governed by the principles of law generally recognized in international trade as applicable to international distribution contracts with the exclusion subject to section 27.3., hereunder of national laws In any event, consideration shall be given to mandatory provisions of the federal laws of the United States as well as Florida statutes which would be applicable. Any such provisions shall be taken into account to the extent they embody principles which are universally recognized and provided their application appears reasonable in the content of international trade Parties acknowledge that awards of LCIA are final and binding on the parties as from the date they are made and may be enforced in any court of competent jurisdiction. 28. Severability If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. 29. Headings Form SECC D-21A 8

9 29.1. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 30. Final Agreement This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof This Agreement shall control all aspects of the dealings between Manufacturer and Distributor with respect to Manufacturer's Product and any additional or different terms are hereby rejected This Agreement may be modified only by a further writing that is duly executed by both parties. 31. Disclosure To protect privacy of each Party, each Party shall not disclose any data of this Agreement or of activity/transactions per this Agreement to any person, except as follows: As necessary to complete transactions To comply with Government agency or court orders To employees, auditors, service providers, attorneys, or agents of each Party in the course of their duties To persons, authorized by law in the course of their official duties If other Party gives to disclosing Party its written permission. 32. Other Conditions This Agreement is made in English in three originals: by one for each Party Fax or copy of this Agreement, signed by all parties has full power until the exchange by signed originals. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives as of the date first above written. For Distributor: For Manufacturer: For Agent: Signed by: Signed by: Signed by: Title: Title: Title: Form SECC D-21A 9