EXHIBIT 6.12
XXXXXXXX XXXXXXXXXX, INC.
BROKERAGE AGREEMENT
This Agreement is made on (mo/dy/yr) 3/25/99
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between (Company Name) Dippy Foods
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(Corporate Address) 0000 X. Xxxxxxxxx Xxxxxx
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(City) Anaheim
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(State, Zip) XX, 00000
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(Contact Name) Xxx Xxxxxxxxx
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(Phone) 000-000-0000 (Fax) 000-000-0000
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hereinafter referred to as "Supplier", and Xxxxxxxx Xxxxxxxxxx, Inc., a
corporation organized and existing under the laws of the State of Washington,
having its Corporate Office in Issaquan, King County, Washington, hereinafter
referred to as "Broker".
Supplier, in consideration for the commitments and obligations set forth herein
to be performed by Broker, hereby agrees that Broker shall be its exclusive
sales representative in connection with all sales and/or contracts for
merchandise designated herein to Costco Warehouses in the following
Region/Regions:
SEE ATTACHED SCHEDULE "A"
The merchandise covered by this Agreement includes all products manufactured by
Supplier, and, also, any additional items Supplier may stock for resale.
1. Supplier's Duties and Broker's Commissions. Supplier agrees to pay Broker's
commission on such products sold and shipped to Costco within the
designated regions.
A. Commissions shall be based on the net amount of sales generated by
Broker's efforts herein. Net sales shall be defined as the amount of
the invoice, less any cash discounts, freight or promotional
allowances.
B. Commissions shall be computed at the following rate or rates:
5%
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C. Payment of all commissions earned shall be made on or before the 15th
day of the month, following the month in which the invoices subject to
commissions have been paid by Costco. All commissions shall be paid in
US dollars.
D. Monthly payment of Broker's commissions shall be accompanied by an
individual commission statement summary, prepared by Supplier, which
includes the purchase order numbers, invoice numbers and dollar
amounts on which the commissions have been computed.
E. Supplier agrees to mail to Broker copies of any and all customer
invoices or credit memos covering sales within the designated regions.
Said copies shall be mailed to Broker on the date the invoices are
generated by Supplier.
2. Broker's Duties. In consideration of the commissions specified herein,
Broker agrees to act in accordance with the following terms and conditions:
A. To devote its best efforts to the sale of Supplier's products during
the term hereof. Broker represents that it has adequate facilities and
personnel to perform the services required in this Agreement.
B. To make all sales subject to Supplier's prices, terms and conditions.
3. Indemnity. Supplier agrees to protect, defend, indemnify and hold harmless
Broker, its subsidies and affiliated corporations and their respective
directors, officers, employees and agents, from and against any and all
claims, actions, liabilities, losses, costs and expenses arising out of any
actual or alleged injury, sickness, disease or death of any person, damage
to any property or any other damage or loss, by whomever suffered,
resulting or claimed to result, in whole or in part, from any actual or
alleged defect in any merchandise sold by Supplier through Broker, or for
which Broker has earned a commission. The term "defect in any merchandise"
as used in this Agreement shall include, but not be limited to, any actual
or alleged failure of said merchandise to comply with specifications or
with any express or implied warranty of Supplier, or any actual or alleged
failure of such merchandise, its manufacture, possession or sale, to comply
with any law, statute, ordinance or governmental administrative order, rule
or regulation.
4. Insurance. Supplier shall carry and maintain during the entire term of
Broker's representation of Supplier's merchandise, a broad form of
comprehensive public liability insurance policy consistent with Costco
requirements, and agrees to furnish Broker with a certificate of such
insurance coverage showing the effective dates thereof. Broker shall be
named as an Additional Insured on this policy and Supplier shall provide
Broker with a current Certificate of Insurance upon policy renewal.
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5. Independent Contractor. It is understood by the parties that Supplier shall
not exercise any control over the activities or operations of Broker and
that Broker is an independent contractor and free agent. It is further
understood by the parties that neither Broker nor any of its employees or
representatives shall be the agents of Supplier at any time, under any
circumstances, for any purpose. Each party fully recognizes and agrees that
neither shall owe any fiduciary duty to the other at any time, and that
this Agreement in no way creates any fiduciary obligation between the
parties. Supplier recognizes that Broker may occasionally represent other
suppliers who manufacture similar products to those offered by Supplier.
6. Term of Agreement and Termination. This Agreement shall be for a term of
one (1) year from the date hereof and shall be renewed automatically for
successive terms of one (1) year thereafter, unless terminated by one of
the parties. Either party may terminate this Agreement by providing sixty
(60) days prior written notice to the other party.
Termination of this Agreement for any reason by either party shall not void
the liability of Supplier to Broker for commissions with respect to orders
and contracts accepted by Supplier prior to the effective date of such
termination, regardless of when such shipments are made or invoices
rendered.
7. Entire Agreement. This Agreement constitutes the entire Agreement of the
parties, and contains all terms and conditions agreed to by the parties. If
any term or condition of this Agreement is held to be invalid, void or
unenforceable by a court of competent jurisdiction, the remainder of the
provisions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
8. Successors, Alteration and Assignment. This Agreement shall be binding upon
any and all successors and assigns of Supplier and Broker, including but
not limited to parties acquiring Supplier or Broker by stock acquisition,
merger or acquisition of substantially all the assets of Supplier or
Broker, or of the division of Supplier identified in the first paragraph of
this Agreement. This Agreement may be altered only in a writing signed by
both parties.
9. Applicable Law, Arbitration and Attorneys' Fees. The parties agree that
this Agreement shall be interpreted according to and under the laws of the
State of Washington. In the event of any dispute regarding this Agreement
or the interpretation or enforcement of any of its terms, the parties agree
that jurisdiction and venue over such dispute shall be King County,
Washington. The parties further agree that the substantially prevailing
party shall be entitled to recover from the other party its reasonable
attorneys' fees and costs incurred in connection with any such dispute.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
SUPPLIER:
Print Name: Xxx Xxxxxxxxx
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Signature: /s/ Xxx Xxxxxxxxx
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Title: President
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BROKER: XXXXXXXX XXXXXXXXXX, INC.
Print Name: Xxxxx Xxxxxxxx
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Signature: /s/ Xxxxx Xxxxxxxx
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Title: Executive VP of Food & Sundries
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