EXCLUSIVE SUPPLIER AGREEMENT
Ex. 10.1
This Exclusive Supplier Agreement (the "Agreement") is made and entered into as of this 13th day of November, 2015 (the "Effective Date"), by and between Bemax Inc., a state of Nevada corporation, having its principal place of business at 000 Xxxxxx Xxx Xxxxx Xxxxxx XX 00000 ("Supplier"), and Bethel Imports & Marketing Limited, a Province of Nairobi corporation having its principal place of business at Xx XX Xxxxx 0xx Xxxxx Xxxxx X00, Xxxxxxx ("Customer"), with reference to the following facts:
A. Customer operate and manage major distribution channels for Disposable Baby Diapers within South and the emerging East Africa markets.
B. Supplier is in the business of selling Disposable Baby Diapers including online sales, and providing related services for such use in retail operations, such as the operation of the ecommerce store.
C. Customer desires to purchase from Supplier all private label Disposable Baby Diapers and related services necessary to manage and operate the distribution channels and Supplier desires to provide the foregoing to Customer on the terms and conditions set forth herein.
Based upon the foregoing, and in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Supplier (collectively, the "Parties") hereby agree as follows,
Exclusive Sale and Purchase. Customer and Supplier agree that so long Customer's distribution operation of disposable baby diaper in South and emerging East African markets remains in effect, Customer shall purchase exclusively from Supplier, in accordance with the terms of this Agreement described below, all private label brands of Disposable Baby Diapers, including, without limitation, all various training, consulting, and support services (hereinafter "Services") necessary for Customer to operate and manage the distribution of supplier's Disposable Baby Diaper. When Customer is in need of Disposable Baby Diapers or Services to be provided by Supplier under the terms of this agreement, Customer shall issue purchase order to Supplier specifying the type and amount of Disposable Baby Diaper, and Services to be purchased from Supplier. Such purchase orders shall be submitted to Supplier within a reasonable time prior to the time in which Customer will need to have the Disposable Baby Diapers distributed. During the term of this Agreement, Customer agrees that it will not purchase Disposable Baby Diapers or Services specified in this Agreement from any vendor, other than Supplier, unless Supplier consents in writing to such purchase.
2. Price and Taxes.
a. Purchase Price. The purchase price for the Disposable Baby Diapers and Services
shall be wholesale price + 20% [Supplier's direct wholesale price listing in effect at
the time Customer issues a purchase order above Supplier's cost at the time
Customer issues a purchase order.
b. Prices Exclusive of Installation and Other Charges. All prices are exclusive of
Services and related charges, shipping and insurance charges which shall be billed
separately. All related charges are subject to change due to Customer's failure to
complete site readiness, non-standard site conditions, force majeure events or
delays caused by Customer. Customer agrees to pay all such additional charges as
invoiced by Supplier. Any such additional charges, as a result of a force majeure
event, shall be pre-established and agreed to between the Parties prior
to any supply or work performed.
c. Prices Exclusive of Taxes. All prices are exclusive of sales, use, excise, and other
taxes, duties or charges. Unless Customer provides evidence of tax exempt status,
Customer shall pay, or upon receipt of invoice from Supplier shall reimburse,
Supplier for all such taxes or charges levied or imposed on Customer, or required to
be collected by Supplier, resulting from this transaction or any part thereof.
d. FOB and Insurance. All prices are FOB unless instructed otherwise. Supplier may
arrange for insurance and standard commercial shipping, the costs of which will be
invoiced to Customer.
2.1 Right to Modify Orders. Prior to delivery, Supplier reserves the right to make
substitutions, modifications and improvements to the Disposable Baby Diapers,
provided that such substitution, modification or improvement shall not diminish or
materially affect the performance and quality of the Disposable Baby Diapers as they
were originally demonstrated to and agreed upon by Customer and Supplier.
3. Payment/Financing. Unless otherwise agreed, invoice payment terms for all purchases
made under this Agreement shall be net forty-five (45) calendar days on a per order basis
and are subject to credit review by Supplier. All payments shall be made to Supplier
not later than the agreed number of days from date of invoice. Late payments shall result
in the assessment of a late charge equal to one and one-half percent (1 1/2%) per month
on any outstanding balance, or the maximum amount of interest chargeable by law
whichever is less.
4. Equipment Warranty. Supplier's sole responsibility to Customer with respect to any
Disposable Baby Diaper manufactured by a third party shall be to pass through to
Customer such original manufacturer's available product warranty. The warranty
provided by said third parties does not cover (i) any item of the Disposable Baby Diaper
which has been altered or modified including any change, addition, or improvement,
and (ii) any damage, defects, malfunctions or service failures caused by:
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a.
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Customer's failure to follow Supplier's or the Disposable Baby Diaper manufacturer's environmental, installation, operation or maintenance specifications or instructions;
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b.
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Modifications, alterations or repairs made other than by Supplier or original
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Disposable Baby Diaper manufacturers;
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c.
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Customer's mishandling, abuse, misuse, negligence, or improper storage, or operation of the Disposable Baby Diaper (including without limitation use of equipment that is not designed or suitable for use in conjunction with the Disposable Baby Diaper purchased from Supplier);
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d.
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Power failures, surges, fire, flood, accident, actions of third parties or other like
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events outside Supplier's control. Repairs necessitated during the warranty period
by any of the foregoing causes specified in Section 4.4 may be made by Supplier,
and Customer shall pay Supplier standard charges for time and materials,
together with all shipping and handling charges arising from such repairs.
THIS WARRANTY CONSTITUTES SUPPLIER'S SOLE AND EXCLUSIVE WARRANTY WITH
RESPECT TO DISPOSABLE BABY DIAPERS AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS,
IMPLIED OR STATUTORY INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
5. Title and Risk of Loss.
a. Date of Delivery. Delivery of any of Supplier's private label Disposable Baby Diaper
shall be deemed complete when Customer acknowledges receipt of the Disposable
Baby Diapers by signature at time of delivery. Title to, and risk of loss for, the
Disposable Baby Diapers sold or licensed under this Agreement shall pass to
Customer upon delivery as defined herein.
b. Security Interest. As security for the full and prompt payment and performance
when due of all obligations of Customer to Supplier under this Agreement,
Customer hereby grants to Supplier a security interest in all Disposable Baby Diaper
supplied to Customer hereunder. Customer shall execute any notice or other
documentation as may be reasonably requested by Supplier at any time in order to
accomplish the intentions of this section. This obligation shall include an obligation
to execute any and all necessary financing statements to perfect the security
interest herein granted to Supplier as well as its ownership interest, if any, herein
evidenced in order to perfect Supplier's interest in the Disposable Baby Diapers and
its rights to payment and performance by Customer under this Agreement. Supplier
shall pay all expenses of filing any necessary financial statements and documents
with the appropriate public offices.
6. Training and Support Services.
a. Training. Supplier will provide documents and manuals, to be utilized in
the required training of Customer's employees in the use, marketing, and handling
of Disposable Baby Diaper packs purchased under this Agreement.
b. Company Trainers. Customer shall designate specific members of its staff as
"Company Trainers and Marketers." Once fully trained and certified by Supplier,
Company Trainers will become the first resources to be contacted by Customer'
personnel who require assistance. Questions or problems that cannot be resolved by
Company Trainers will be referred to Supplier. Company Trainers may be required to
attend refresher or re-certification training from time to time if necessitated by
changes, expansion or improvements in said Disposable Baby Diaper. The Parties
agree that training of the Customer's "Trainers" shall commence on or about end of
2015. In situations where it is necessary for Supplier's personnel to travel in order to
provide services for Customer, Customer agrees to pay all travel expenses for
transportation, food and lodging.
7. Excusable Delay. Supplier shall be excused from performance under the purchase order
and not be liable to Customer for delay in performance attributable in whole or in part to
any cause beyond its reasonable control, including but not limited to, action or
inaction of any government, war, civil disturbance, insurrection, sabotage, act of
public enemy, labor strike, difficulty or dispute, unpredictable failure or delay in
delivery by Supplier's suppliers or subcontractors, transportation difficulties, shortage of
energy, materials, accident, fire, flood, storm or other act of God, or Customer' fault or
negligence. In the event of an excusable delay, Supplier shall make reasonable efforts to
notify Customer of the nature and extent of such a delay and Supplier will be entitled to
a reasonable schedule extension. In the event a delay results from Customer's fault or
negligence, Supplier will also be entitled to an equitable adjustment calculated on a time
and materials basis which shall be mutually agreed upon.
8. Change, Cancellation, and Termination.
a. Cancel of Purchase Order. If Customer cancels a purchase order within thirty (30)
days prior to scheduled shipment date, Customer shall pay to Supplier a restocking
fee of Twenty percent (20%) of the canceled purchase order. Supplier shall not assess
any cancellation charges if Supplier cancels an order.
b. Breach of Agreement. In the event that either Party breaches any provision of this
Agreement, and fails to cure such breach within thirty (30) days after written notice
from the other Party, the breaching Party shall be in default.
c. Liability of Supplier. Supplier's maximum liability and Customer's maximum
recovery for any claim arising out of or in connection with the sale of Disposable
Baby Diapers shall not in the aggregate exceed the price paid by Customer for
such Disposable Baby Diapers hereunder.
9. Sale or Cessation of Customer's Business. In the event of (i) a sale or other disposition of
Customer's business, either by sale or other disposition of all or substantially all of its
assets or the sale or other disposition of all or a majority of the stock/membership
interests in Customer, or (ii) an assignment or other conveyance of its Disposable Baby
Diapers distribution channels in South and East Africa, Customer agrees that it will cause
the transferee of the business or the assignee to assume Customer's obligations under
this Agreement and no such transfer or assignment shall operate to release Customer
from Customer's obligations under this Agreement without the prior written consent of
Supplier in Supplier's sole and absolute discretion. In the event of a liquidation or other
cessation of Customer's business (without sale or transfer of the business), Customer
shall give Supplier at least Three (3) months prior written notice of its intention to
discontinue its business. Failure to comply with this Section 9. Shall constitute a material
breach of this Agreement by Customer.
10. Assignment. Neither Party may assign this Agreement in whole or in part without the
prior written consent of the other Party. (It shall not be considered an "assignment" if
either Party applies the contract to wholly owned subsidiaries, or, to other ventures in
which they remain the controlling entity, provided, however that the forgoing shall not
release such Party from or affect such Party's obligations under this Agreement.)
11. Term. This Agreement shall become effective on the date upon which the Party last
signing below signs this Agreement and shall remain in effect for so long as the
Supplier's South and East Africa Disposable Baby Diapers Distribution channels remains
in effect, unless otherwise terminated earlier pursuant to the terms of this Agreement
or terminated earlier by mutual written consent of the Parties. Furthermore, either
Party may terminate this Agreement immediately in the event that the other Party has
breached a provision of this Agreement and has failed to cure the breach within a
reasonable time or in the event that the other Party shall become liquidated, dissolved,
bankrupt or insolvent, or shall take any action to be so declared.
12. Miscellaneous.
a. Entire Agreement. This Agreement and attached Exhibits constitute the entire
agreement between Customer and Supplier with respect to the subject matter
hereof and there are no representations, understandings or agreements which are
not fully expressed in this Agreement.
b. Cooperation. The Parties acknowledge and agree that successful completion of this
Agreement shall require the full and mutual good faith cooperation of each of the
Parties.
c. Amendments. No amendment, change, waiver, or discharge hereof shall be valid
unless in writing and signed by the Party against which such amendment, change
waiver, or discharge is sought to be enforced.
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d.
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Nevada Law; Exclusive Jurisdiction and Venue. This Agreement shall be governed in
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all respects by the laws of the State of Nevada without regard to its conflict of laws
provisions, and Corporation and Contractor agree that the sole and exclusive venue
and jurisdiction for disputes arising from this Agreement shall be the appropriate
state or federal court located in the State of Nevada, and Customer and Supplier
hereby submit to the venue and jurisdiction of such courts.
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e.
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Notice. Any notice provided pursuant to this Agreement, if specified to be in
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writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, three (5) business days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof, (iv) if by electronic mail (e-mail), upon electronic confirmation thereof or (v) if by next day delivery service, upon such delivery. All notices shall be addressed as follows (or such other address as either Party may in the future specify in writing to the other):
In the case of Supplier: In the case of Customer:
Attn: Xxxxx Xxxxxxxx Attn: Abi Imbai
000 Xxxxxx Xxx Xxxxx XX XX Xxxxx, 0xx Xxxxx, Xxxxx X00
Xxxxxx, Xxxxxxx 30132 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
Email: xxxxx@xxxxxxxx.xxx Email: xx@xxxxxx.xxx
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f.
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Waiver. The wavier or failure of either Party to exercise any right in any respect
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provided for herein shall not be deemed a waive of any further right hereunder.
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g.
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Interpretations. All references to "Business Days" shall mean all days excluding
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Saturdays, Sundays and legal holidays observed in the state of Nevada. All references to the masculine, feminine, neuter or singular shall also refer to the masculine, feminine, neuter or plural, where applicable.
13. Severability. If any section, portion, provision, paragraph, clause, sentence,
language or word of this Agreement is determined to be invalid, illegal, void,
voidable or unenforceable for any reason whatsoever, this Agreement shall be read
as if it did not contain such section, portion, provision, paragraph, clause sentence,
language or word, it is to that extent to be deemed omitted, and the balance of
this Agreement shall remain enforceable.
14. Counterparts. This Agreement may be executed in several counterparts, including
by means of facsimile signatures, all of which taken together shall constitute the
entire agreement between the Parties hereto.
15. Headings. The section headings used herein are for reference and convenience
only and shall not enter into the interpretation hereof.
16. Approvals and Similar Actions. Unless otherwise provided herein, where
agreement, approval, acceptance, consent or similar action by either Party hereto
is required by any provision of this Agreement, such action shall not be
unreasonably delayed or withheld.
17. Attorneys' Fees. Each Party hereto shall be responsible for and shall pay for their
own costs and attorneys' fees. Notwithstanding the foregoing, if either Party brings
any action or proceeding, subsequent to the execution of this Agreement, to
interpret or enforce any provision hereof, the prevailing Party shall be entitled to
reasonable fees and costs, including attorneys' fees.
18. Further Documents. Each Party agrees to perform any further acts and to execute
and deliver any additional documents which may be reasonably necessary to
effectuate the provisions of this Agreement.
CUSTOMER: SUPPLIER:
Bethel Imports & Marketing Limited, Bemax Inc, Inc., a Nevada
a Province of Nairobi Corporation Corporation
By/s/Abi Imbai By/s/Xxxxx Xxxxxxxx
Name: Abi Imbai Name: Xxxxx Xxxxxxxx
Title: President/Director Title: President/CEO
