CERTAIN INFORMATION (INDICATED BY ASTERISKS) IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. DISTRIBUTION AGREEMENT
CERTAIN
INFORMATION (INDICATED BY ASTERISKS) IN THIS EXHIBIT HAS BEEN
OMITTED
AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
This
Distribution Agreement (the "Agreement") is dated as of February 26, 2008 and
is
by and between PURPLE BEVERAGE COMPANY, Inc. (the “Supplier”) a Nevada
corporation with its principal place of business at 000 Xxxx Xxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and Big Geyser, Inc. (the "Distributor"
and sometimes collectively referred to herein with the Supplier as the
"Parties"), a Delaware Corporation with its principal place of business at
00-00
00xx
Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the "Premises").
RECITALS:
WHEREAS,
Supplier manufactures, sells, distributes and promotes the sale of beverages
bearing the trademarks which Supplier represents and warrants are either owned
by or licensed to Supplier (collectively, the "Trademarks") (and the beverages
bearing such Trademarks are collectively referred to herein as "Supplier's
Beverages"); and
WHEREAS,
Distributor desires to sell, distribute, market and assist Supplier in the
promotion of the sale of Supplier's Beverages and Supplier desires to grant
the
Distributor the right to sell, distribute, market and promote the sale of
Supplier's Beverages (Supplier's Beverages are sometimes collectively referred
to as the "Products" and individually, a "Product").
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration each to other the in hand paid and received,
the
Parties agree as follows:
1. Territory.
Supplier hereby grants to the Distributor:
A. The
sole
and exclusive right to sell, distribute, market and promote the Products within
the territory described in Schedule 1.A.1 annexed and incorporated herein by
this reference (the "Territory") through all sales channels (a complete list
of
the Products is annexed as Schedule 1.A.2 and incorporated herein by this
reference);
B. The
sole
and exclusive right of first refusal to sell, distribute, market and promote
the
beverages of Supplier's subsidiaries and related and affiliated entities
(collectively, Supplier's Related Companies") each bearing trademarks which
Supplier and the respective subsidiary and related or affiliated entity
represents and warrants are either owned by or licensed to Supplier's Related
Companies [and together with the Trademarks are collectively referred to herein
as the Trademarks][and the beverages of Supplier's Related Companies together
with the Supplier's Beverages are referred to herein as "Supplier's Beverages"
which are collectively referred to herein as the "Products"], and
C. A
royalty-free, non-exclusive, nontransferable right to use the Trademarks in
connection with its performance under this Agreement (a complete list of the
Trademarks is annexed as Schedule 1.0 and is incorporated herein by this
reference and the Schedule may be amended from time to time to include
additional Products).
1
2. Term.
This
Agreement shall be for a term of five (5) years commencing on the date set
forth
above and terminating on February 26, 2013 (the "Initial Term"). The Initial
Term shall be automatically renewed for successive terms of five (5) years
each
unless either Supplier or Distributor notifies the other in writing (the "Notice
of Termination") not less than one hundred twenty (120) days prior to the
expiration of the Initial Term or any subsequent term of its intent not to
renew
(the date of receipt of such notice, the "Notice Date"). In the event of timely
notification of the Notice of Termination, the termination shall be effective
as
of the end of the then-existing five (5) year term.
3. Termination
Payment - Non-Renewal.
A. If
Supplier elects to terminate or not renew this Agreement beyond the expiration
date of the then applicable term, Supplier will pay to Distributor a termination
fee (the "Termination Payment") as follows:
1. The
Termination Payment shall be that amount which is equal to [***].
2. Supplier
shall pay the Termination Payment to Distributor by bank or certified check
within ten (10) days of the effective date of termination. If such payment
is
not timely paid and actually received the Termination Payment shall bear
interest at 2% over prime then established by Citigroup, N.A., or if Citigroup,
N.A. does not then exist a financial institution of like kind, until fully
paid.
Additionally, until the Termination Payment is actually received by Distributor,
Supplier shall be prohibited from engaging the services of another distributor
and if Supplier does engage the services of another distributor without making
the Termination Payment, Supplier shall be liable to Distributor, as and for
liquidated damages, that amount equal to the "profit" made by Distributor for
the prior year same month or month[s], as applicable, without affecting the
amount and obligation to remit the Termination Payment (the "Termination
Penalty").
B. Non-Renewal.
If this
Agreement is terminated as a result of Supplier's decision not to renew, then
the Supplier shall:
1. At
Distributors sole option, repurchase from Distributor all of the Distributor's
inventory, obtained from Supplier at anytime and then existing at the date
of
termination, at the Distributor's cost for same plus [***]
handling
fee per case (the "Supplier's Termination Fee").
2. Pay
Suppliers Termination Payment plus the inventory and handling fee to Distributor
by bank or certified check within ten (10) days of the effective date of
termination; provided, however, if the Supplier's Termination Fee is not timely
paid and actually received, the Termination Penalty shall apply here with like
force and effect.
3. At
Distributors sole option, remove all of such inventory from the Premises within
ten (10) days of the effective date of termination or the Supplier shall pay
rent for same in an amount which the Distributor, in its sole reasonable
discretion, may determine; provided, however, if such inventory is not removed
in accordance with the terms of this sub-section, the Termination Penalty shall
apply here with like force and effect.
2
4. Repurchase
from Distributor all of the Distributor's hard point-of-sale materials then
in
inventory and all hard point-of-sale materials which are located in documented
trade locations, at the Distributor's cost for same. The phrase "hard
point-of-sale materials" shall for purposes hereof mean all product racks
including refrigerator glide racks, barrels, floor stands and displays, and
similar items. Notwithstanding the foregoing, the phrase "hard point-of-sale
materials" shall include refrigerators, visi-coolers and the like used to
refrigerate the Products, if Distributor, in its sole discretion, advises
Supplier in writing of such inclusion within ninety (90) days of the Notice
Date. If Distributor so advises Supplier, the price for such items shall be
Distributor's cost less depreciation of such items on a straight-line basis.
If
Distributor does not so advise Supplier, such items shall remain the property
of
the Distributor and Distributor shall cause Supplier's name to be removed from
such items within a reasonable time.
5. Reimburse
Distributor for any slotting fees paid by Distributor to Distributor's current
customers to obtain entry, shelf space, and refrigerator or display space for
the Products (the "Slotting Fees"). The Supplier shall reimburse Distributor
for
the Slotting Fees by bank or certified check within ten (10) days of the date
of
Distributor's presentation of documentation in support of its payment of the
Slotting Fees.
C. Penalties.
In
addition to the Termination Payment and Termination Fees, Distributor may cause
Supplier to comply with the provisions of Section 10.B. below.
D. Termination
Payment - Product Line.
If the
Supplier elects not to continue any line or lines of Products which Distributor
has carried for not less than one year, then the discontinuance of any such
line
or lines of Products shall be deemed to be the equivalent of an election by
the
Supplier not to renew this Agreement as set forth in Section 2.B. above but
only
to the extent of the affected line or lines of Products. Supplier shall give
written notice to Distributor of such election not to continue any line or
lines
of Products, and said discontinuance shall be effective as of 120 days from
the
receipt of such notice. Accordingly, in the event of any such discontinuance,
Supplier will pay to Distributor a termination fee (the "Discontinuance
Payment") as follows:
1. The
Discontinuance Payment shall be that amount which is equal to [***].
2. The
Discontinuance Payment shall be paid to Distributor by bank or certified check
within ten (10) days of the Discontinuance Date.
4. Price.
Supplier shall sell the Products to the Distributor at prices including delivery
to the Premises. [***].
5. Payment
Terms.
Distributor shall pay for the Products purchased and delivered to it within
thirty (30) days of the date of receipt of Supplier's product. Payment terms
for
payment of Product(s) shall be 2%-10 days, net 30 days.
6. Orders.
Supplier shall use its best commercial efforts, but makes no warranties or
guaranties as to the promptness of delivery, to fill promptly the orders sent
to
the Supplier by the Distributor. During busy times of the year when Products
may
not be available for immediate shipment, or when force majeure conditions
exists, Supplier shall have the right to allocate deliveries at a level
consistent with the prior course of dealing among Supplier and all of its
distributors, including the Distributor; in such an event, any sales objectives
for Distributor will be adjusted accordingly.
3
7. Covenants
of the Distributor.
The
following covenants are material obligations of the Distributor:
A. To
maintain, subject to Supplier's ability to deliver and availability of the
Products, inventory of the Products at all times adequate to satisfy the
anticipated demand for the Products.
B. To
carry
and sell a representative portion of the Products offered to Distributor by
the
Supplier in Schedule 1.A.2, which Schedule 1.A.2 shall be amended by the
Supplier from time to time to include any new products accepted by
Distributor.
C. To
maintain complete records showing sales of Products. Within fifteen (15)
business days of the last day of each month, Distributor shall make available
to
Supplier sales data for the Products for the prior month, in such format as
is
available.
D. To
not
intentionally ship any Products, directly or indirectly, outside of the
Territory.
E. To
abide
by reasonable standard transshipment written policies as Supplier may adopt
from
time to time; provided a copy of such written policies are provided to
Distributor in a timely manner. Such policies may include, without limitation,
the assessment of costs and penalties to the Distributor related to such
policies. If the Supplier is provided with information regarding transshipping
by third parties in Distributor's territory, the Supplier will seek to identify
the culpable party, and if found, seek to recover damages and, if damages are
recovered, direct payment of same to Distributor.
8. Transfer
of License.
A. The
rights granted hereunder by the Supplier to the Distributor are based upon
Supplier's careful investigation of Distributor's financial condition and the
skill and knowledge of Distributor's personnel in its business of distributing
and selling Products within the Territory. The rights granted under this
Agreement are unique to Distributor, and may not be transferred in whole or
in
part, whether by an independent agreement, acquisition by another party of
Distributor's capital stock or assets, a transaction resulting in a change
in
the ownership or control of Distributor, or otherwise, unless prior to such
transfer the Supplier has expressly consented in writing thereto, or as
otherwise provided in this Agreement.
B. Notwithstanding
anything to the contrary contained in this Agreement:
1. Ownership
or control of any part or all of Distributor may be transferred without prior
notice to any and all members of the Xxxxxxxxxxx family during their lifetime
and at their death or to an entity controlled by the Xxxxxxxxxxx
family.
2. The
provisions of this Paragraph 8 shall not be applicable to Distributor if it
is
or becomes a publicly owned corporation whose outstanding voting stock is listed
on a national securities exchange or is traded actively in the over-the-counter
market, or is controlled by or is in common control with such an entity, whether
as a subsidiary, an affiliated entity, or the like.
4
3. If
Distributor acquires all or substantially all of the assets or stock or
membership interests, or any other ownership interest, however termed, of
another distributor of Supplier, which distributor has previously been approved
for distribution of the Products within a given territory by Supplier (the
"Acquired Company"), then Supplier's consent shall be deemed to have been given
to Distributor to acquire same and the definition of the term "Territory" shall
be automatically amended so as to include the territory previously granted
by
Supplier to the Acquired Company.
9. Termination
by Supplier.
A. This
Agreement may be terminated by the Supplier immediately upon written notice
upon
the occurrence of any of the following events:
1. The
liquidation of the Distributor's business, an assignment or attempted assignment
by the Distributor for the benefit of creditors, the filing of a voluntary
or
involuntary petition for bankruptcy by or against Distributor which is not
dismissed within 60 days of the date of filing, or the insolvency of
Distributor.
2. Transfer
of the license in violation of Section 7 hereof.
B. In
the
event of the Distributor's failure to comply with any of its other material
obligations under this Agreement, the Supplier may issue a thirty (30) day
Notice of Termination to Distributor, in writing, specifying the reason[s]
for
such termination with sufficient specificity to enable Distributor to cure
the
failure and to comply in the time frame set forth in this subsection, and which
notice shall allow to Distributor an opportunity to cure the deficiency and
comply with the obligation cited in such notice without penalty. Distributor
must then either cure the deficiency within thirty (30) days of the date of
Distributor's receipt of such notice or diligently proceed to commence to cure
the deficiency within such 30 day period (if the cure requires more than 30
days, whereupon such cure period shall be extended as long as the Distributor
diligently proceeds to cure any such alleged deficiency), or the termination
shall be effective upon the expiration of such cure period.
C. If
Distributor's fails to make any monetary payment hereunder in accordance with
the Supplier's payment requirements, the Supplier may issue a thirty (30) day
Notice of Termination to Distributor, in writing, with sufficient specificity
detailing the exact non-payment and why it is a failure under this Agreement
and
which notice shall allow an opportunity to cure the deficiency and comply with
the payment obligations hereunder within thirty (30) days of the date of
Distributor's receipt of such notice. Distributor must cure within such thirty
(30) days or the termination shall be effective upon the expiration of such
thirty (30) day period.
Notwithstanding
anything to the contrary contained in this Agreement, Supplier's right of
termination described in this Paragraph shall be applicable only for
Distributor's failure to pay for purchases of the Products, and not for
Distributor's failure to pay any other amount, including, but not limited to,
handling, breakage, transportation, promotion, advertising, or like costs,
fees
or expenses; for any or all of these costs, fees and expenses, Supplier and
Distributor shall endeavor to amicably resolve payment of all such outstanding
amounts and, if proven by Supplier to be correct and to have been due and
payable, the amount due shall bear interest at the rate of twelve (12.0%)
percent per year from the date such amount was otherwise due and
payable.
5
10. Termination
by Distributor.
A. This
Agreement may be terminated by the Distributor, at its sole and exclusive
option, immediately upon written notice upon the occurrence of any of the
following events:
1. Liquidation
of the Supplier's business, an assignment or attempted assignment by the
Supplier for the benefit of creditors, the filing of a voluntary or involuntary
petition for bankruptcy by or against Supplier which is not dismissed within
90
days of the date of filing, or the insolvency of Supplier.
2. Supplier's
failure to pay any sums due to Distributor for promotional activities, samples,
or any other reason, within thirty (30) days of properly documented requests
for
payment and within ten (10) days after written notice to cure. In this event
Distributor shall have the immediate right to offset amounts due to it by
Supplier in payments owed by it to Supplier.
3. Elimination
of any or all Products from the Territory.
4. Sale
or
other transactions of the Products directly or through another distributor
to
the distribution channels for which Distributor has been granted exclusivity,
with the exception of those accounts specifically excluded from the Agreement,
if any.
5. Failure
to process and ship Distributor's orders if Distributor is not in default of
its
monetary obligations.
6. Increasing
prices to Distributor without raising prices to other distributors of the
Products, or permitting Supplier's prices to Distributor to be more than the
lowest price given to any distributor used or engaged by the Supplier, unless
mutually agreed to between the parties.
7. A
breach
of any other provision of this Agreement by the Supplier.
B. Supplier's
default shall be considered termination without cause and require the Supplier
to pay to Distributor the Termination Payment as well as all other payments
and
reimbursements required under this Agreement. In addition, unless the Supplier
has paid the Termination Payment as well as all payments and reimbursements
required elsewhere to be paid under this Agreement the Supplier may not use
any
other distributor to act as a distributor for the Products in place of
Distributor in any portion or all of the Territory without first offering such
opportunity in writing to the Distributor, whereupon the Distributor shall
have
thirty (30) days to accept or reject such offer. If the Distributor does not
accept the Supplier's offer within such 30 day period, then the Supplier may
offer the right to act as a distributor for the Products in place of Distributor
in any portion or all of the Territory only in accordance with such bona fide
written offer within 90 days thereafter; any variation in the terms of such
transaction from those contained in the bona fide written offer shall require
a
new offer to Distributor in accordance with the provisions of this Paragraph
10.B.
6
11. Termination
Rights.
A. In
the
event of any termination, regardless of the reason, at the Distributor's sole
option, the Supplier shall repurchase from the Distributor all of the
Distributor's inventory of the Products at the Distributor's landed cost plus
$1.00 handling fee per case. If Distributor exercises such option and requires
Supplier to repurchase the inventory, the Supplier shall pay for same within
twenty (20) days of the date of Supplier's receipt of the exercise of such
option, but in any case not later than the date Supplier re-possesses such
inventory. Supplier may not make any offer to any distributor regarding the
Products and any portion or all of the Territory until the termination
date.
B. Subject
to the terms in this Agreement, the Supplier may have the right to set off
and
apply any and all amounts owned to it by Distributor, which are not disputed
by
Distributor, against any of the Supplier's obligations to Distributor upon
termination or expiration of this Agreement.
C. Subject
to the terms in this Agreement, Distributor may have the right to set off and
apply any and all amounts owned to it by the Supplier, which are not disputed
by
the Supplier, against any of the Distributor's obligations to the Supplier
upon
termination or expiration of this Agreement.
12. Trademarks.
The
Distributor shall use the Trademarks in marketing, advertising and promoting
the
sale of the Products in accordance with the policies of the Supplier regarding
the use of Trademarks. Any use by Distributor of advertising, sales or
promotional materials shall be subject to the Supplier's prior written policies.
Subject to the terms and conditions of this entire Agreement including but
not
limited to those applicable to the right to continue to distribute
notwithstanding a termination, the right to use the Trademarks shall cease
and
terminate upon the effective date of termination of this Agreement. The
Trademarks shall remain the sole and exclusive property of the Supplier.
Distributor acknowledges nothing contained in this Agreement shall give
Distributor any right or interest in the Trademarks or any other trademark,
trade name, sign, symbol, emblem, device, trade style or slogan used by or
at
the direction of the Supplier upon or in relation to the Products. Distributor
covenants not to do any act calculated to prejudice, affect, impair or destroy
the title and/or interest of the Supplier in and to the Trademarks. If it shall
come to the attention of Distributor that any person, firm or corporation is
infringing any Trademark, Distributor will promptly notify the Supplier and
cooperate fully with the Supplier in the defense and protection of the
Trademarks. All use of the Trademarks by Distributor under this Agreement shall
inure to the exclusive benefit of the Supplier. If any action, suit or
proceeding is commenced against Distributor concerning Distributor's use of
the
Trademarks, Distributor shall promptly give notice thereof to the Supplier.
The
Supplier shall indemnify, defend and hold Distributor harmless from and against
any and all liability, claims, fines, penalties, forfeitures and legal, court
and expert costs (including reasonable attorneys' and expert fees) arising
out
of any claim or action by another party with respect to, related to or in
connection with Distributor's use of the Trademarks. Distributor shall not
enter
into any settlement of any indemnified claim without the Supplier's
consent.
13. Sub-Distributors.
Distributor may appoint sub Distributors in furtherance of its obligations
under
this Agreement. Notwithstanding any such appointment, Distributor's obligation
under this Agreement will not be thereby altered and Distributor shall be
responsible for the conduct of all of its sub-Distributors. If this Agreement
is
terminated, any and all sub-Distributor agreements shall be automatically
terminated as to the Products only. No sub-Distributor is intended as a third
party beneficiary of this Agreement. The Distributor shall provide to each
of
its sub-Distributors adequate supervision and support to promote the Products
including, but not limited to, providing information regarding new Products,
promotional program participation, periodic sales meetings and point of sale
materials.
7
14. Transshipping
by Supplier.
A. If
Supplier sells, distributes, or has sold or distributed the Products, directly
or indirectly, in the Territory through distribution channels other than through
Distributor, then in addition to all other remedies available for such breach,
Supplier shall pay to the Distributor [***].
B. If
Supplier sells, distributes, or has sold or distributed the Products, directly
or indirectly, in the Territory through distribution channels other than through
Distributor for a second time during the term of this Agreement, as same may
be
renewed, then in addition to all other remedies available for such breach,
Supplier shall pay to the Distributor [***].
C. If
Supplier sells, distributes, or has sold or distributed the Products, directly
or indirectly, in the Territory through distribution channels other than through
Distributor for any subsequent occurrences during the term of this Agreement,
as
same may be renewed, then in addition to all other remedies available for such
breach, Supplier shall pay to the Distributor [***].
D. The
above
penalties shall apply to any improper distribution by Supplier or any
subdivision thereof, its successors and/or assigns.
15. Governing
Law and Venue.
The
enforceability and performance of this Agreement and any disputes or
controversies between the Parties relating to, regarding or involving the
subject matter of this Agreement or the relationship created hereby shall be
governed exclusively by the procedural and substantive laws of the State of
Connecticut which shall be the exclusive venue for resolution of disputes
hereunder.
16. Dispute
Resolution.
Any
dispute between the Parties shall be settled by arbitration before the American
Arbitration Association ("AAA") in New York, New York pursuant to the Commercial
Rules of the American Arbitration Association, then obtaining and the
unsuccessful party shall be responsible for all arbitration costs including
reasonable attorneys' fees for both parties resulting from said arbitration.
Any
arbitrator(s) selected to resolve the dispute shall be bound exclusively by
the
laws of the State of New York.
17. Assignment.
Notwithstanding anything to the contrary contained in this Agreement, the
Distributor reserves the right to assign this Agreement to a related corporation
or other related business entity.
18. Indemnification
by the Supplier.
Supplier shall indemnify and hold the Distributor harmless against and from
any
and all claims, of any type or nature, made by third parties against the
Distributor based upon, arising out of, or in any way related to: (1) the
preparation, manufacturing and bottling of the Products, (2) the storage,
warehousing and sale of the Products by the Supplier, (3) the conduct of the
Supplier's business, (4) the Supplier's ownership or possession of property,
(5)
any negligent act, misfeasance or nonfeasance by the Supplier or any of its
agents, servants, or employees, and (6) any and all fees, cost and expenses,
including without limitation, reasonable attorneys' fees incurred by or on
behalf of the Distributor in the investigation of or defense against any and
all
of the foregoing claims. The Distributor shall provide the Supplier prompt
notice of receipt of any such claim. If the Distributor does not provide the
Supplier with prompt notice of receipt of any such claim or matter to which
the
Distributor is entitled to indemnification hereunder in time to contest the
determination of such liability, then the Supplier shall not be obligated to
indemnify the Distributor with respect thereto. The Distributor shall not settle
any such claim without the Supplier's prior knowledge and
consent.
8
19. Indemnification
by Distributor.
Distributor shall indemnify and hold the Supplier harmless against and from
any
and all claims made by third parties against the Supplier based upon, arising
out of, or in any way related to: (1) the storage, warehousing and sale of
the
Products by the Distributor (but only during the time periods in which the
Distributor stored, warehoused and sold the Products, and specifically not
including the manufacturing or bottling of same), (2) the conduct of the
Distributor's business, (3) the Distributor's ownership or possession of
property, (4) any negligent act, misfeasance or nonfeasance by the Distributor
or any of its agents, servants, or employees, and (5) any and all fees, cost
and
expenses, including without limitation, reasonable attorneys' fees incurred
by
or on behalf of the Supplier in its defense against any and all of the foregoing
claims. However, upon notice to the Supplier that the Distributor has assumed
the defense of any legal action or proceeding, the Distributor shall not be
liable to the Supplier for any legal or other expenses subsequently incurred
by
the Supplier in connection with the defense thereof. Supplier shall provide
the
Distributor prompt notice of receipt of any such claim it being understood
that
if the Distributor does not receive written notice of any matter to which the
Supplier is entitled to indemnification hereunder in time to contest the
determination of such liability, then the Distributor shall not be obligated
to
indemnify the Supplier with respect thereto. Supplier shall not settle any
such
claim without the Distributor's prior knowledge and consent.
20. Insurance.
The
Parties shall maintain Commercial General Liability/Excess Liability insurance
including contractual liability with respect to the indemnity obligations set
forth herein. Such insurance shall be maintained with limits of not less than
$5,000,000 per occurrence. The Parties shall provide certificates of insurance
to each other within thirty (30) days of executing this Agreement. Supplier's
certificate shall verify that Big Geyser Inc. is named as an additional insured,
that the insurance afforded applies as primary and non-contributory and that
the
coverage afforded under the policy will not be cancelled or changed to reduce
or
restrict the coverage until after at least thirty (30) days prior written notice
to Distributor has been given.
21. Notices.
All
notices given by either party to the other must be in writing and shall be
effective when received or refused, and must be transmitted by certified mail,
return receipt requested, or overnight courier such as Federal Express. Notices
to each party shall be addressed to its principal place of business shown above
or any other address which a party specifies by written notice to the other.
If
sent to the Distributor, a copy of any notice of default shall also be sent
to
with a copy to Xxxxx Xxxxxxxx, Esq. Xxxxxxx & Frieland, 00 Xxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxx, XX 00000.
22. No
Agency.
Each of
the Parties are independent principals and is not an agent, employee, partner
or
joint venturer of the other in the performance of this Agreement, and neither
of
them nor their agents or employees shall in any way act, or undertake to act,
on
behalf of, or hold itself out as, the agent of the other party.
23. No
Franchise.
Distributor acknowledges it has not and will not pay any fee to Supplier,
directly or indirectly, in connection with this Agreement, and Distributor
shall
not be considered or deemed a "franchisee" of the Supplier for any purpose
whatsoever. This Agreement does not contemplate and does not require Distributor
to establish or maintain a fixed place of business for the sale of the
Supplier's Products.
9
24. Force
Majeure.
Neither
of the Parties shall be liable to the other for any failure to comply with
any
of the terms of this Agreement to the extent that any such failure is caused,
directly or indirectly, by fire, strike, union disturbance, injunction or other
labor problems, war (whether or not declared), riots, insurrection, government
restrictions or other government acts, or other causes beyond the control of
or
without fault on the part of either the Supplier or Distributor. However, each
party shall continue to be obligated to pay when due to the other any and all
amounts which it shall have become duly obligated to pay in accordance with
the
terms of this Agreement. Upon the occurrence of any event of the type referred
to in this Section, the party affected thereby shall give prompt notice thereof
to the other party, together with a description of such event and the duration
for which such party expects its ability to comply with the provisions of this
Agreement to be affected thereby.
25. Entire
Agreement.
This
Agreement constitutes the complete and entire agreement between the parties
with
respect to the subject matter thereof and supersedes all prior or
contemporaneous written or oral agreements, representations, and understandings
of or by either party with respect to such subject matter. All Schedules
referred to in this Agreement and annexed are hereby incorporated into and
by
this reference made a part of this Agreement. No party shall be construed as
the
drafter of this Agreement, and in the event of construction of any portion
of
this Agreement by an arbitrator or court, there shall be no presumption that
any
ambiguity (if any is found to exist) shall be construed against any
party.
26. No
Oral Modification.
No
change, supplement, modification, alteration or amendment of this Agreement
shall be binding unless set forth in writing and signed by the parties. This
Agreement shall not be changed, supplemented, modified, altered, extended or
amended by the course of dealing of either or both of the parties, or by trade
usage or by any other event, except as specifically set forth
herein.
27. Enforceability.
If any
term or provision of this Agreement, or the application thereof to any person
or
circumstance shall, to any extent, be found to be invalid or unenforceable,
the
remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and be enforced to the fullest extent permitted
by
law.
28. Non-waiver.
No
waiver by either party at any time, or with respect to any right, condition
or
requirement contained in this Agreement shall be deemed a waiver at any other
time or with respect to any other right, condition or requirement. No conduct
shall give rise to any estoppel to exercise any present or future right to
terminate this Agreement. No waiver shall be valid unless in writing and signed
by the waiving party, and the non-waiving party’s obligation with respect to
fixture performance of ail other terms, covenants and conditions shall continue
in full force and effect.
29. Captions.
The
captions contained in this Agreement are inserted for the sole purpose of
convenience and do not define, describe, extend or limit the scope or the intent
of this Agreement or any terms hereof.
10
30. Binding
Effect.
This
Agreement shall be legally binding on the Parties, their respective successors
and assigns and has been authorized by the Parties respective board of
directors.
31. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original but all of which together shall constitute but one and the same
instrument.
IN
WITNESS WHEREOF, the Parties have signed this Agreement on the date first above
written.
|
SUPPLIER
|
DISTRIBUTOR
|
||
|
Purple
Beverage Company
|
Big
Geyser, Inc.
|
||
|
/s/
Xxxxxxxx Xxxxxxxxxx
|
/s/
Xxxxx Xxxxxxxxxxx
|
||
|
Xxxxxxxx
Xxxxxxxxxx
|
Xxxxx
Xxxxxxxxxxx
|
||
|
Title:
CEO
|
Title:
Chief Operating Officer
|
||
|
Date:
12/27/2007
|
Date:
1/31/2007
|
||
11
SCHEDULE
1.A.1
TERRITORY
Manhattan
(New York County)
Brooklyn
(Kings County)
Queens
Staten
Island (Richmond County)
Bronx
Nassau
Suffolk
Westchester
12
SCHEDULE
1.A.2
PRODUCTS
Purple
antioxidant 7-juice beverage 10oz bottle/12/carton or any other size sold in
the
future by Purple Beverage Company.
13
SCHEDULE
1.B
TRADEMARKS
AND SCHEDULE OF PRICES
Purple
Trademark
[***]
14
SCHEDULE
2
PROMOTIONS,
POINT OF SALE MATERIALS, SAMPLES AND SERVICES
After
any
initial sixty (60) day introductory period, Distributor and Supplier shall
equally share the costs of all Product samples used by Distributor in the
Territory, at Distributor's laid-in cost. Distributor and Supplier shall equally
share the cost of discount and incentive programs initiated by Distributor.
Deliveries made at the request of the Supplier shall be billed to Supplier
at
Distributor delivered price. Distributor and Supplier will equally share the
cost of all promotional merchandise including wearables, such items to be valued
at Supplier's actual costs.
All
paper
point-of-sale and promotional materials produced by Supplier shall be made
available to Distributor at no cost to Distributor.
Distributor's
and Supplier's marketing activity, which includes incentive programs, local
event participation, promotional merchandise, samples, advertising or special
promotional programs, will be the subject of separate agreements between
Supplier and Distributor made from time to time.
Reimbursement
by Supplier for agreed promotional expenses will be made within thirty (30)
days
from receipt of properly documented requests for payment from Distributor.
Failure to pay within these terms will constitute a breach of this Agreement.
Amounts due from Supplier and not received by Distributor within thirty (30)
days may be offset against amounts due to Supplier.
15
SCHEDULE
3
OTHER
COMMITMENTS BY DISTRIBUTOR AND SUPPLIER
1. COLD
DRINK EQUIPMENT COMMITMENT - In the event Supplier and Distributor agree to
share in the purchase of any refrigeration equipment for promotional purposes,
said equipment shall become and remain the sole property of the
Distributor.
2. PROMOTION
- Promotional allowance, by Supplier, for local promotions must be at least
$_______ per case over the entire term of this Agreement. Supplier will co-op
all local promotions.
3. PALLETS-
Either at no charge or with return policy.
4. BREAKAGE
ALLOWANCE - An allowance of 48 bottles per trailer will be given to Supplier
to
offset small individual claims for routine breakage and damage to Products.
Unsaleable products received from Supplier may be returned to Supplier for
credit.
5. MANPOWER
- Supplier agrees to maintain, in Distributor's territory, at least six (6)
full-time sales persons to assist in the sale of the Products.
16
SCHEDULE
4
MANUFACTURER
ENDORSEMENT to be attached here
Where
the
Supplier is not the manufacturer of the products, a letter from the
Manufacturer, endorsing the contract between Supplier and Distributor, shall
be
required to finalize this Agreement. Such letter will agree to protect the
rights of the Distributor under this Agreement in the event of bankruptcy or
default by Supplier.
17
