EXHIBIT 10(a)
WHOLESALE AGREEMENT
THIS AGREEMENT, made this 28 day of September 0000, xxxxxxx XXXXXXXX
XXXXXX XXXX A DIVISION OF XXXXXX & CO. ("MONSANTO") a division of Xxxxxx
Company, and XXXXX NURSERY FARMS INC., ("XXXXX").
WHEREAS, MONSANTO is the distributor and seller and has, for various
years promoted, marketed and sold the Solaris product line including Roundup,
Ortho and Greensweep (hereinafter the "Products"), directly or through others,
having thus developed the good name, goodwill, and acceptance of the Products in
the United States, the Commonwealth of Puerto Rico, the United States Virgin
Islands, the Caribbean and other countries.
WHEREAS, XXXXX recognizes that MONSANTO has had, and will continue to
have, at its effective charge the distribution, promotion and marketing of the
Products in the Territory.
WHEREAS, it is not the intention of MONSANTO to xxxxx XXXXX the
distribution, promotion and marketing of the Products in the Territory.
WHEREAS, XXXXX desires to become a wholesaler of the Products and
MONSANTO wishes to appoint XXXXX as one of its wholesalers for the Products,
subject to the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the covenants contained in this
Agreement, it is mutually agreed as follows:
1. DESIGNATION.
MONSANTO hereby designates XXXXX as one of its wholesalers for
the Products in the Commonwealth of Puerto Rico, St. Xxxxxx, St. Xxxx, St.
Croix, Grenada, Tortola, Virgen Gorda,
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Anegada, Xxxx Xxx Xxxx Island, Xxxxxx Island, Guana Island, Great Camenoe
Island, Beek Island, Xxxxx Island, Salt Island, Mosquito Island, Necker Island,
Prickly Pear Island, Xxxxxx Island, Finger Island, Aruba, Bonaire, Curacao,
Saint Maarten, Saint Estatius, Xxxx, Xxxxxxxxx, St. Kitts, Nevis, Anguilla,
Antigua, St. Lucia, Grand Cayman Island, Little Cayman, Cayman Brac, Turks and
Caicos Islands, St. Xxxxxxx & the Grenadines and Dominica (hereinafter the
"Territory"). XXXXX recognizes that MONSANTO sells the Products within the
Territory directly and though other wholesalers.
2. PROHIBITION AGAINST DIVERSION OF PRODUCTS.
Any efforts by XXXXX to knowingly divest, sell or cause the
diversion or the sale of the Products outside the Territory, without the written
authorization of MONSANTO, will be a breach of this Agreement and will cause
this Agreement to be terminated forthwith at MONSANTO's option.
3. TERM.
ORIGINAL TERM. The term of this Agreement shall be three (3)
years from the date herewith. Following the initial term of this Agreement, it
shall renew automatically in two (2) year periods. This Agreement may be
terminated by either party, at its option, at the end of the initial term or at
the end of any renewal period by giving at least six (6) months written notice.
4. PRICING.
MONSANTO will sell to XXXXX the Products at the prices set
forth in the price list annexed hereto. MONSANTO agrees not to sell the products
to other wholesalers in the Territory at a price less that those charged to
XXXXX. Excise, sales taxes and other governmental charges will be added where
applicable. MONSANTO
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reserves the right to change its prices, at any time, after giving at least
sixty (60) days written notice to XXXXX.
5. CREDIT AND PAYMENT.
TERMS WILL BE NET 60 DAYS. XXXXX agrees to pay a late payment
charge of prime plus 3 per annum (based on the prime rate published in the WALL
STREET JOURNAL in effect at the due date) on the unpaid past due principal
balance.
6. ACCEPTANCE OF ORDERS.
All orders for the Products will be subject to product
availability from MONSANTO. The order may be refused by MONSANTO in the event
that XXXXX has not complied with the payment terms and has past due invoices.
MONSANTO shall have no obligation or liability to XXXXX, or any other party, for
refusal to accept any order for the above reasons, provided no other wholesaler
in the Territory receives priority treatment for products available.
7. RELATIONSHIP.
The relationship between MONSANTO and XXXXX is that of a
vendor and vendee. XXXXX shall not be deemed to be an agent or representative of
MONSANTO. XXXXX shall have no authority, whether express or implied, to assume
or create any obligation on behalf of MONSANTO. XXXXX acknowledges that it is
not a sales representative or a distributor of MONSANTO. The parties further
acknowledge that their intention when entering into this Agreement was that
XXXXX would not be a distributor under the Puerto Rico Dealer's Act, Act No. 75
of June 24, 1964, as amended, 10 L.P.R.A. ss.278, et seq. (hereinafter "Act 75")
nor a sales representative under the Puerto Rico Sales Representative's Act, Act
No. 21 of December 5, 1990, 10 L.P.R.A. ss.279, et seq. (hereinafter "Act 21").
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8. LIABILITY AND INDEMNIFICATION.
a. MONSANTO warrants to XXXXX that the Products conform to the
applicable MONSANTO product label. EXCEPT AS STATED ON SUCH LABEL, MONSANTO
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED (INCLUDING
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.) Xxxxx is not authorized
and shall not hold itself out as authorized to make on behalf of MONSANTO any
oral or written warranty or representation regarding material furnished to XXXXX
by MONSANTO.
b. MARGO shall not relabel any of the Products. XXXXX shall
not sell or offer for sale any Product that, to Margo's knowledge, has been
diluted, contaminated, adulterated or substituted or for which the indicated
measure or any other information on the label is false, misleading or
inadequate, within the specific knowledge of XXXXX.
c. MONSANTO hereby agrees to defend, indemnify and hold
harmless XXXXX and any employee, officer or director of XXXXX, from any and all
claims, liabilities, judgments, settlements, lawsuits, damages, expenses,
attorneys' fees and other costs arising out of or otherwise attributable to a
failure or alleged failure of the Products to conform with the statements on the
Products' label, product liability claims related to the Products or their use
including, but not limited to, claims based on negligent design or manufacture
or failure to properly warn) and from and against all costs, attorneys fees,
expenses and liabilities incurred in the defense of any such claims, actions or
proceedings brought thereon UNLESS such claim was caused by MARGO's negligence,
willful misconduct, misuse, relabeling, substitution, adulteration or dilution
by XXXXX.
Notwithstanding the foregoing, XXXXX agrees that any
damages for loss of goodwill and/or good name, prospective profits
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on sales or anticipated sales, contingent, remote or consequential damages,
shall not exceed the amount of five thousand dollars ($5,000).
d. MARGO shall indemnify MONSANTO against and hold MONSANTO
harmless from all liabilities, damages, costs and expenses, including attorneys'
fees which, to the extent such liabilities, damages, costs or expenses, have
resulted from:
(1) a relabeling by XXXXX or written
representation or written statement made by XXXXX which is inconsistent with or
additional to what is stated on the applicable MONSANTO product label or in
other written materials furnished by MONSANTO;
(2) improper transportation of the Products by
XXXXX or its agent or contractor; or
(3) careless, negligent and/or faulty storage
and handling of the Products and/or storage and handling of the Products in
storage areas utilized by XXXXX in a manner contrary to written instructions
provided by MONSANTO;
(4) MARGO's negligence or its willful
misconduct.
This indemnity agreement will be in addition to any liability
which either party may otherwise have under applicable law and shall survive the
termination of this Agreement.
In the event a third party asserts any claim with respect to
any matter to which the foregoing indemnities apply, the party against whom the
claim is asserted (the "Indemnified Party" being it be XXXXXXXX, XXXXX, and/or
any of their employees, officers or directors) shall give prompt notice to the
other party (the "Indemnifying Party"), and the Indemnifying Party shall have
the
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right, at its election, to take over the defense or settlement of such claim
at its own expense by giving prompt notice to the Indemnified Party, including
the retaining of counsel reasonably acceptable to the Indemnified Party and the
payment of counsel's fees and all other expenses related to such defense. The
Indemnified Party may retain separate counsel in any such action and participate
in the defense thereof at their expense unless the retention of such separate
counsel was specifically authorized by the Indemnifying Party. Any objection to
the appointment of a particular counsel by the Indemnifying Party shall be made
by the Indemnified Party presenting such objection in writing detailing with
particularity the reasons for such objections.
If the Indemnifying Party does not give notice to take over
the defense or settlement of such third party claim and does not proceed
diligently to defend the claim within 30 days after receipt of such notice of
the claim, the Indemnifying Party shall be bound by any defense or settlement
that the Indemnified Party may make as to such claim and shall reimburse the
Indemnified Party for its costs and expenses (including, without limitation,
costs of defense, settlement, payment of judgment and reasonable attorneys'
fees) resulting therefrom. The parties shall cooperate in defending any such
third party's claim and the defending party shall have reasonable access to
records, information and personnel in the possession or control of the other
party which are pertinent to the defense.
9. TRADEMARK.
XXXXX acknowledges that MONSANTO is the exclusive owner of the
trademarks, trade names, packages and designs used in the sale of the Products
as well as of the "Registro de Plaguisidos y depositivos" ("Industrial
Property"). XXXXX shall not use MONSANTO's Industrial Property as part of its
corporate or other
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trading name and/or for any reason whatsoever except with the written consent of
or by written agreement with MONSANTO.
10. TERMINATION.
This Agreement may be terminated by either party as stated at
Section 3 above. In addition, the parties expressly agree that either can
terminate in writing forthwith this Agreement, if the other party's acts or
omissions adversely affect the sale of the Products. Without limiting the
generality of the foregoing, it shall be cause to terminate the Agreement if:
(1) XXXXX fails to comply with the obligations contained in
paragraphs 2, 5, 7, 8, 9, 13 and 17.
(2) XXXXX ceases to function as a going business;
(3) MONSANTO ceases to function as a going business, ceases to
market the Products, or decides in its sole discretion that it will not continue
to sell the Products in the Territory;
(4) The suspension, liquidation, dissolution or bulk sale, or
notice thereof, of either party's usual business without the prior written
consent of the other, or in the event of the calling of a meeting of either
party's creditors, an assignment by either party for the benefit of creditors,
the insolvency of any kind of either party, or in the event of the filing of any
attachment, distraint, levy, execution or judgment against either party, any
filing of a voluntary or involuntary petition under the provisions of the
Federal Bankruptcy Act or amendments thereto, or any application for or
appointment of a receiver for the property of either party, the filing of which
remains unsatisfied and discharged at the end of thirty (30) days after the
occurrence of such event;
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(5) either party commits, in the good faith opinion of the
other, an act of fraud, deceit, dishonesty or any criminal conduct.
Upon termination, all catalogues, samples and price lists
issued by MONSANTO and in the possession of XXXXX are to be promptly returned to
MONSANTO. All other records pertaining to prices, quotations, specifications and
customers shall be treated as if they were confidential property of MONSANTO.
XXXXX further acknowledges that no compensation whatsoever
will be due to XXXXX for the expiration, cancellation or termination of this
Agreement.
Should it be determined that, notwithstanding the parties'
intention to the contrary, this relationship is covered under either Act 75 or
Act 21, and that MONSANTO terminated this Agreement, without just cause as
defined in Paragraph 10(1) above, then XXXXX shall be entitled to damages
equivalent to one percent (1%) of the gross sales of the Products during the
period of twelve (12) months prior to the effective date of the termination. No
additional damages shall be payable to XXXXX, including damages for present or
prospective profits on sales or anticipated sales, or expenditures or
commitments made in connection therewith or on goodwill, it being understood
that the MONSANTO reputation and goodwill has been previously established and
additional markets and customers obtained will be the result of a joint effort
between the parties.
11. PURCHASE OF INVENTORY.
Upon the expiration or termination of this Agreement, MONSANTO
shall have the option, exercisable by written notice to XXXXX within fifteen
(15) days after the expiration of Agreement or
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notice of termination has been received, to purchase from XXXXX all salable
stocks of the Products listed in current MONSANTO's Products price lists which
are in full case lots and which were originally purchased by XXXXX from
MONSANTO. If such option is exercised, such purchases by MONSANTO shall be at
MARGO's cost (net of any discounts, incentives, etc.) and exclusive of any
additional expenses incurred by XXXXX (such as warehousing or handling costs)
and XXXXX shall pay any freight costs in shipping such Products to MONSANTO.
XXXXX shall establish its cost by producing copies of invoices or other records
regularly maintained in the course of its business. Upon request by MONSANTO,
during the 15-day option period, XXXXX shall withdraw its entire stock of the
Products from sale. If such option is not exercised by MONSANTO, then XXXXX
shall have the option, exercisable by written notice to MONSANTO within
forty-five (45) days after this Agreement has expired or been terminated
pursuant to the provisions of Section 10 above to sell to MONSANTO all salable
stocks of Products listed in current MONSANTO's Products price lists which are
in full case lots and which were originally purchased and paid for by XXXXX from
MONSANTO at MARGO's cost, established in the manner set forth above.
12. INTUITAE PERSONAE.
This Agreement is personal to Xx. Xxxxxxx Xxxxxxx and is
executed in consideration of Xx. Xxxxxxx'x presence and control of XXXXX. Any
change in this managerial or ownership arrangement may give rise to termination
of the Agreement by giving at least sixty (60) days notice by MONSANTO.
13. CONFIDENTIALITY.
a. MARGO agrees always to regard and preserve as confidential
and not to disclose to any third party, either during the term of this Agreement
or thereafter, any "Proprietary
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Information" (as defined hereinafter) of MONSANTO that it has obtained as well
as the terms and conditions included in this Agreement. The term "Proprietary
Information" shall include (a) any information concerning formulations or
manufacturing processes for products and (b) any information concerning
MONSANTO's business including, without limitation, business plans, projections,
marketing and sales strategies and reports, costs, profits, pricing information,
customer or prospect. Notwithstanding the foregoing, XXXXX xxx disclose the
terms and conditions of this Agreement as may be required by law. XXXXX shall
institute adequate procedures and safeguards with respect to its employees and
agents maintain confidentiality of the Proprietary Information and this
Agreement.
b. MARGO agrees that the obligations imposed by this section
shall remain in full force and effect following the termination or the
expiration of this Agreement. Within ten (10) days after this Agreement has
expired by its terms or notice of termination has been received, XXXXX shall
return to MONSANTO all Proprietary Information in whatever form, whether
originals, copies or extracts in its possession. XXXXX shall never use for its
own benefit or purposes any Proprietary Information except in furtherance of
this Agreement or with the written consent of MONSANTO.
14. NON-WAIVER.
The failure to terminate this Agreement for the breach of any
condition or covenant herein should not affect MONSANTO's right to terminate
this Agreement for subsequent breaches of the same of other covenants.
MONSANTO's failure to enforce, at any time, any of the provisions of this
Agreement shall not be construed as a waiver or modification of such provisions.
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15. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of
Florida. No modification or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.
16. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement (including, without limitation, the interpretation of contract
language, the applicable law, the breach, termination or renewal thereof) shall
be settled by arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. Sec.
1 et seq., in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The parties further agree that the arbitrator is not
authorized to award any punitive damages in connection with any controversy or
claim settled by arbitration. The decision of the arbitrator shall be final and
binding upon the parties and judgment upon the award may be entered in any court
having jurisdiction thereof. The arbitration shall take place in Miami. Unless
costs are awarded in the arbitration proceeding, all expenses, costs, and legal
fees individually incurred by the parties in connection with such arbitration
shall be borne by the party incurring them. The filing fee required by the
Commercial Arbitration Rules shall be shared equally by the parties hereto.
17. ASSIGNABILITY.
XXXXX shall not assign its rights and responsibilities under
this Agreement, or any portion thereof, without the prior written consent of
MONSANTO. For purposes of this Agreement, the transfer by XXXXX of all or
substantially all of its assets will be deemed to be an assignment of this
Agreement. Therefore, XXXXX
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must obtain the MONSANTO's written approval prior to any such transfer.
18. SEVERABILITY.
If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which, so far as possible,
achieves the same economic and other benefits for the parties as the severed
provision was intended to achieve, and the remaining provisions of this
Agreement shall continue in full force and effect.
19. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the
parties and supersedes all previous verbal and written Agreement; no other
Agreements, representations, or warranties not set forth herein except as
incorporated by reference.
20. NOTICES.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by certified mail,
Federal Express or facsimile. Unless otherwise changed by written notice to the
other party, the addresses of the parties are:
MONSANTO PUERTO RICO
Attn: General Manager
XX Xxx 000000
Xxx Xxxx, Xxxxxx Xxxx 00000
XXXXX NURSERY FARMS INC.
000 Xxxxxx XX. 0.0
Xxxx Xxxx, Xxxxxx Xxxx 00000
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IN WITNESS WHEREOF, the parties have executed this Agreement on this
28th day of September 1995.
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
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XXXXX NURSERY FARMS INC. MONSANTO PUERTO RICO, a
Division of Xxxxxx & Co.
