INTERNATIONAL PRODUCTION AND DISTRIBUTION AGREEMENT
Between the Undersigned:
DIALPACK GmbH, with
office at Germany, 87600 Kaufbeuren, Xxxxxxxxxxx 0
hereinafter referred to as "DIALPACK"
and
LOOK MODELS INTERNATIONAL, INC.
with corporate offices at Xxxxxxxx Xxxxx 0, 0000 Xxxx, Xxxxxxx
hereinafter referred to as "DISTRIBUTOR"
WHEREAS;
1. DIALPACK represents that it owns the patent and has the ability to license
the exclusive worldwide rights for o a patented dispenser which helps the
consumer to self-adjust the sun protection factor,
o the brand VARIOSUN.
This product line includes on this present date PRODUCTS laid down in
attachment I of this agreement.
2. DIALPACK is a company legally established in 2001 under the laws of Germany
and holds the mandatory government permits. 3. DISTRIBUTOR is a company
legally established in 2000 under the laws of the state of Delaware in the
country of the United States of America.
4. DISTRIBUTOR wishes to obtain the various exclusive and non-exclusive rights
to distribute and market the products herein concerned.
THE FOLLOWING IS AGREED:
1
Definitions:
1.1 PRODUCT: the products as in attachment I.
1.2 INFORMATION: any scientific technical marketing & sales information in the
possession of DIALPACK and needed by DISTRIBUTOR for the promotion and sale
of the PRODUCT.
1.3 AFFILIATED COMPANY: any organisation controlled (direct or indirect
ownership of more than 50%) by DIALPACK or DISTRIBUTOR.
1.4 EXCLUSIVE: only DISTRIBUTOR has the right to promote, sell or distribute
the PRODUCT.
1.5 MODEL-TYPE LABELS: any and all non-exclusive clients that sell brand or
tradename products that use the name model, connote, or refer to models,
including but not limited to the Sea Change Group, New York.
1.6 NON-EXCLUSIVE COUNTRIES: North America, South America, the Caribbean, the
Pacific Rim, Australia, Middle East and Africa.
1.7 TERRITORIES: those countries listed in Attachment II hereto. The parties
contemplate the following rights: worldwide exclusive rights for
Catwalk/Look and MODEL-TYPE LABELS, the exclusive distribution rights in
all the TERRITORIES (attachment II), and non-exclusive rights for non
MODEL-TYPE LABELS in NON-EXCLUSIVE COUNTRIES .
2 Assignments and Exclusivity:
2.1 DIALPACK represents that the mutual agreements contained herein are is
subject to the following conditions :
o reliability of its the dispensing system,
o as to sun creams, reliability of its SPF-factors, if contents are ordered
from DIALPACK (proven and confirmed by tests of assigned Institutes).
2.2 DIALPACK grants the DISTRIBUTOR and the DISTRIBUTOR accepts from DIALPACK,
under the terms and conditions as stated in this Agreement the following
rights:
o the exclusive right to promote and distribute the PRODUCT in the
TERRITORIES. In the event a company within a TERRITORY contacts DIALPACK to
purchase or to gain rights to PRODUCTS, DIALPACK shall refer the client to
DISTRIBUTOR and DISTRIBUTOR shall act as DIALPACK'S representative in the
transaction, subject to the terms of this Agreement.
o the world-wide exclusive right to promote and distribute the PRODUCT under
the Catwalk, Look and other model-type labels. Any company seeking to
purchase or to gain rights to its DIALPACK products under the name Catwalk,
Look and other MODEL-TYPE LABELS, including but not limited to products
distributed in the NON-EXCLUSIVE COUNTRIES, shall deal with DISTRIBUTOR as
its exclusive distributor. In the event a company, which sells products
under a MODEL-TYPE LABEL, contacts DIALPACK to purchase or gain rights to
its PRODUCTS, DISTRIBUTOR shall act as DIALPACK'S exclusive representative
in the transaction, subject to the terms of this transaction.
o The non-exlusive right to promote and distribute PRODUCTS not using
catwalk/look or a MODEL-TYPE LABELS in the United States of America;
o the right to receive and utilize any information needed for the promotion
of the PRODUCT according to the current legislation.
The DISTRIBUTOR is not be allowed to promote, sell or distribute the
product (except under the catwalk/look/model-type labels or in the non-exclusive
countries) actively outside the TERRITORY, except for promotions, sales and
distributions for which DIALPACK has given its written approval..
3 Exchange of information, obligation to cooperate and suggested adjustments
3.1 DIALPACK will provide DISTRIBUTOR with all the information the Distributor
deems is needed for the promotion and the sale of the product.
3.2 DIALPACK and DISTRIBUTOR will notify each other promptly of any abnormal or
unexpected reactions caused by the product or any incident concerning the
quality of the product.
3.3 DISTRIBUTOR can suggest changes or adjustments to be made by DIALPACK to
the product, whenever commercial surveys or legislation would require such
changes or adjustments. DIALPACK commits itself to make these changes or
adjustments.
4 Confidentiality:
4.1 The DISTRIBUTOR, except as may otherwise be mutually agreed upon in writing
during the period of this agreement, and for a period of three (3) years
from the date of the termination of this Agreement, shall not, without
prior written consent of DIALPACK:
(a) hold trade secrets and proprietary information not in the public
domain (the "information") in confidence, exercising a degree of care
not less than the care used by the DISTRIBUTOR to protect its own
proprietary or confidential information that it does not wish to
disclose, which in no event shall be less than reasonable care,
(b) restrict disclosure of the information solely to those directors,
officers, employees and/or agents/consultants with a need to know and
not disclose it to any other person and then only upon written
approval of DIALPACK,
(c) advise those persons to whom the information was disclosed of their
obligations assumed herein, and
(d) use the information only for the purpose of the performance of this
agreement.
4.2 The obligations of the DISTRIBUTOR shall not apply to any information:
(a) which was independently developed by the DISTRIBUTOR or lawfully
received free of restrictions from another source having the right so
to furnish such information; or
(b) after it has become generally available to the public without breach
of this agreement by the DISTRIBUTOR; or
(c) which at the time of disclosure to the DISTRIBUTOR was known to the
DISTRIBUTOR free of restrictions as evidenced by documentation in the
DISTRIBUTOR<180>s possession, or
(d) which is disclosed pursuant to the requirement of a governmental
agency or any law requiring thereof, provided that the DISTRIBUTOR
provides DIALPACK with prior written notice of any such disclosure
within a reasonable time so as to allow DIALPACK to take measures to
prevent the disclosure of said information.
4.3 DIALPACK, except as may otherwise be mutually agreed upon in writing during
the period of this agreement, and for a period of three (3) years from the
date of the termination of this Agreement, shall, without prior written
consent of the DISTRIBUTOR:
(a) hold trade secrets, accounts, client records and proprietary
information not in the public domain (the "information") in
confidence, exercising a degree of care not less than the care used by
DIALPACK to protect its own proprietary or confidential information
that it does not wish to disclose, which in no event shall be less
than reasonable care,
(b) restrict disclosure of the information solely to those directors,
officers, employees and/or agents/consultants with a need to know and
not disclose it to any other person and then only upon written
approval of the DISTRIBUTOR,
(c) advise those persons to whom the information was disclosed of their
obligations assumed herein, and
(d) use the information only for the purpose of the performance of this
agreement.
4.4 The obligations of DIALPACK shall not apply to any information:
(a) which was independently developed by DIALPACK or lawfully received
free of restrictions from another source having the right so to
furnish such information; or
(b) after it has become generally available to the public without breach
of this agreement by DIALPACK; or
(c) which at the time of disclosure to DIALPACK was known to the
DISTRIBUTOR free of restrictions as evidenced by documentation in
DIALPACK's possession, or
(d) which is disclosed pursuant to the requirement of a governmental
agency or any law requiring thereof, provided that DIALPACK provides
the DISTRIBUTOR with prior written notice of any such disclosure
within a reasonable time so as to allow the DISTRIBUTOR to take
measures to prevent the disclosure of said information.
5 Launching, promotion and minimum purchase
5.1 DISTRIBUTOR shall at all times promote and distribute the product in
accordance to the regulations of the applicable health authorisation and
shall endeavour that the promotion and distribution will be in compliance
with the legislation at all times.
5.2 DISTRIBUTOR will be responsible for the marketing of the product within the
territory. All expenses in relation to such marketing of the product in the
territory will be at the cost of DISTRIBUTOR.
5.3 DIALPACK will deliver the product "ex works".
5.4 Costs of new development and new tools for adapted and for new products
will be discussed in good faith and on a most-favoured nation basis.
5.5 DISTRIBUTOR will do the reasonably necessary work to market the sale of the
product in the territory.
5.6 The Parties will exchange that information on a monthly basis necessary to
indicate (i) their compliance with this Agreement, including but not
limited to provisions regarding the exclusive and territorial nature of the
rights granted hereunder and (ii) the DISTRIBUTOR'S good faith endeavors to
promote and distribute the PRODUCT
5.7 Forecasts shall be given to DIALPACK as soon as possible, but at least two
months prior to the start of each contract year.
5.8 The Parties agree that the DISTRIBUTOR shall be given most-favoured nation
pricing meaning that DIALPACK shall charge DISTRIBUTOR at or below the
lowest prices it charges to its other distributors.
6 Supply:
6.1 DIALPACK holds all mandatory government permits for the production of this
product.
6.2 The product will be manufactured by DIALPACK or by a company designated by
DIALPACK for that purpose. Both, DIALPACK and the designated company will
meet the standards of current legislation concerning the manufacturing and
the distribution of the product.
7 Terms of supply
7.1 DISTRIBUTOR will make good faith efforts to ensure that the product is
supplied to the end user on an "ex works Germany "INCOTERMS 1990" basis.
7.2 DISTRIBUTOR shall notify DIALPACK of all payment arrangements it negotiates
with customers and shall forward DIALPACK copies of any and all contracts,
letter of credit or guarantees. Upon receipt of any funds from end-users
DISTRIBUTOR will promptly pay DIALPACK its pro-rata portion thereof until
full payment has been made.
7.3 DIALPACK will use its reasonable best efforts to deliver the products
within the reasonable quantities at the time specified in the DISTRIBUTOR'S
purchase order. Delivery will take place no later than the attached list of
lead times (Add.III) after purchase order has been received and the
specification of labels and text has been approved by DISTRIBUTOR but will
use best efforts to deliver sooner if possible.
7.4 DISTRIBUTOR will use reasonable efforts to promptly check delivered
products for faults and completeness and will notify DIALPACK of any
noticeable defect if discovered. Claims for guarantees are only possible
within 6 month after delivery.
7.5 DISTRIBUTOR acknowledges that DIALPACK will print the brand "DIALPACK"
Web-address and the Patent Number on the back-side label of PRODUCT in a
typesize no larger than is legally necessary to maintain DIALPACK'S
intellectual property rights in the PRODUCT.
7.6 Prices for 2001/2002 are binding prices from DIALPACK to DISTRIBUTOR,
depending on minimums.
7.7 Dialjpack will start with production of ordered goods as soon as
DISTRIBUTOR guarantees payment by document or cash in advance.
8 CATWALK MARKETING RIGHTS:
8.1 In consideration of entering this Agreement, DIALPACK grants distributor
the worldwide rights to distribute the PRODUCTS under the Catwalk/Look and
MODEL-TYPE LABEL. This right shall survive the termination of this
agreement.
8.2 Line extension: DIALPACK shall take responsibility for the manufacturing
and development of the products' future line extensions and will inform
DISTRIBUTOR of such developments by registered letter. DIALPACK grants the
DISTRIBUTOR exclusive rights to all line extensions and improvements to the
PRODUCT and the first right to distribute the new products not related to
or derived from the PRODUCTS (the "new product") as mentioned in 2.2.
DISTRIBUTOR will inform DIALPACK of its interest to distribute the new
product by registered letter within two months after the receipt of the
registered letter from DIALPACK. If DISTRIBUTOR expresses no interest in
distributing the new product, DIALPACK will be allowed to distribute it
through other distribution channels, unless the existing business would be
harmed by such arrangement.
9 Duration:
This Agreement will have effect on the day it is signed and will remain in force
for a period of five (5) years for Catwalk products. Three (3) years for
the "right of first refusal". The Agreement will be automatically extended
for successive periods of one (1) year, unless DISTRIBUTOR or DIALPACK
terminates the Agreement, giving 3 months notice before the end of each
annual period by registered letter.
10 Termination:
10.1 DISTRIBUTOR has the right to terminate this Agreement at any time if:
o DIALPACK is declared bankrupt, in suspension of payments, liquidation or
dissolution.
o DIALPACK distributes directly a similar product into the DISTRIBUTOR's
market
10.2 DIALPACK has the right to terminate this Agreement at any time if:
o DISTRIBUTOR is declared bankrupt, in suspension of payments, liquidation or
dissolution.
o DISTRIBUTOR fails to market and/or promote the product in the territory and
does not take on the said activity within a period of 60 days after the
request of DIALPACK to continue the said activity.
o DISTRIBUTOR fails to obtain, without due cause, the agreed minimum
quantities as laid down in art. 5.5 of this Agreement o DISTRIBUTOR
actively promotes, sells or distributes the product outside the territory
11 Liability:
11.1 DIALPACK shall indemnify and hold harmless DISTRIBUTOR and its affiliated
companies, customers of DISTRIBUTOR, their officers, directors and
employees from and against any and all claims, losses, damages, judgements,
costs, awards, expenses (including reasonable attorneys' fees) and
liabilities of every kind (collectively, "Losses") arising directly out of
or resulting directly from any breach by DIALPACK of any of its warranties,
guarantees, representations, obligations or convenants contained herein and
shall be answerable to third parties for any damage, loss, complaint,
action or detriment caused by the product as a result of defective
manufacturing DIALPACK will meet the costs of any criminal or civil action
resulting from these claims at his own expense.
11.2 DISTRIBUTOR shall be answerable to third parties for any damage, loss,
complaint, action or detriment caused by the product as a result of grossly
negligent of purposeful misrepresentation of the PRODUCT. DISTRIBUTOR will
meet the costs of any criminal or civil action resulting from these claims
at its own expense.
12 Right of First Refusal:
12.1 In the event that DIALPACK receives an offer to sell or determines to sell
the PRODUCT, the PATENTS underlying the PRODUCT, and/or the shares or
assets of DIALPACK, then it shall immediately notify DISTRIBUTOR in writing
of the occurrence of this event. DISTRIBUTOR shall have the right to
purchase the PRODUCT, the PANTENT underlying the PRODUCT and/or the shares
or assets of DIALPACK at the same price and terms as has been offered to
DIALPACK. DISTRIBUTOR shall notify DIALPACK of its intention to exercise
this right of first refusal within 30 days of such offer. In the event that
DISTRIBUTOR refuses the purchase and DIALPACK changes the price or terms in
any way, it shall immediately re-offer the right of purchase to DISTRIBUTOR
in accordance to the aforementioned terms.
13 Miscellaneous
13.1 Modifications to this Agreement and additional or different provisions are
only valid if they have been accepted in writing by both parties.
13.2 Notifications and communications within the framework of this Agreement
shall be made by registered letter to the address as mentioned in this
Agreement. Parties will report immediately any change of address.
13.3 This Agreement contains the Agreement between DIALPACK and DISTRIBUTOR and
will replace any other verbal or written Agreement relating to the above
mentioned matter.
13.4 The nullity of a provision of this Agreement shall not have the result that
the Agreement as a whole is void. In the place of the zero or invalid
provisions a suitable regulation shall apply which approximates as closely
as possible the intention of the parties and the economic result aimed for
by the parties in a legally effective way.
13.5 The failure by a party to take any action in case of default relating to
any provision of this Agreement by the other party or the allowing or
toleration of a deviation from any provision of this Agreement shall not be
considered to be a relinquishment of right.
13.6 Parties are not allowed to transfer rights included in this Agreement to
third parties without written approval from the other party.
13.7 The English language of this Agreement shall be the only authentic text.
14 Force majeure:
14.1 Neither of the parties shall be held responsible for non-performance of its
obligations in the event that this non-performance is a result of force
major.
14.2 Force majeure shall be understood to mean any circumstance outside the will
and control of the parties, whether or not foreseeable at the time of
entering into the Agreement, as a result of which the fulfilment can not
reasonably be demanded from that party, such as war, government measures,
fire and other disruptions to the business, import or export bans, lack of
raw materials, factory or transport disruption, strikes, lock out,
quarantine, civil disturbance, extreme weather conditions...
14.3 In case of temporary force majeure the mutual obligations will be suspended
until the hindrance is eliminated.
14.4 When force majeure persistently prevents fulfilment and lasts for more than
90 days, the Agreement shall end by right. Parties shall not have right to
fulfilment, compensation or/and postponement.
14.5 If either of the parties would find itself in a situation of force majeure,
it will immediately notify the other party.
15 Applicable law:
This Agreement is governed by laws of Germany in force of signature
thereof.
Thus prepared in duplicate and signed on the 15th of November, 2001.
For DIALPACK For DISTRIBUTOR
/s/Dietmar Rock /s/Xxxxxxxx Xxxxxxx
Dietmar Rock Xxxxxxxx Xxxxxxx
END OF CONTRACT
ATTACHMENT I to the International Distribution Agreement
PRODUCT DESCRIPTION:
Product as defined in the agreement is: A dispenser with two accomodation
compartments that have bottoms that support and reduce the volume of the
accomodation compartment. The accomodation compartment contain a liquid medium
of varied makeup and use ("filler"), for two different components of the medium
to be dispensed, a mixing means connected to each outlet opening, a manually
adjustable adjustment means by means of which the ratio of the components of the
medium supplied to the mixing means can be adjusted, a dispenser nozzle for the
medium to be dispensed by the dispenser which nozzle is connected to the mixing
means, wherein the outlet openings are each connected to a discharge pump having
a plunger, the outlets of which open into a common mixing line leading to the
dispenser nozzle, and discharge pumps pivotally retained at guide rails
supported at the container as pivotal operating levers for the plungers of the
pumps.
A product may consist of only the dispenser or the cartridge or the filler
as the case may be.
------------------------------------------------------------------------------
ADDENDUM II - PRICES AND PAYMENT CONDITIONS
------------------------------------------------------------------------------
DIALPACK - two-component dispenser with adjustable mixing ratio
2x75ml, 1ml pump release
..1.1. Starterset
------------------------------------------------------------------------------
.1.1.1. Quantity, Prices and Order Entry
------------------------------------------------------------------------------
.1.1.1.1. Quantity Price Order Entry
per
piece in
DEM
------------------------------------------------------------------------------
.1.1.1.2.
Year 2001/2002
------------------------------------------------------------------------------
1st Order - empty dispenser,
w/o cartridges 100,000 3.20 31.12.2001
------------------------------------------------------------------------------
1st Order - filled dispenser, 50,000
w/o label and box - 7.00 31.12.2002
"Sport resp.Lotion"
------------------------------------------------------------------------------
2nd Order - empty dispenser, 100,000 3.90 30.04.2002
w/o cartridges
------------------------------------------------------------------------------
2nd Order - 2 empty cartridges 100,000 0.50 30.04.2002
------------------------------------------------------------------------------
From 3rd, Order further-empty 400,000 0.50 30.04.2002
dispenser, w/o cartridges
------------------------------------------------------------------------------
From 3rd, Order further- 2 empty 400,000 4.41 31.12.2002
cartridges
------------------------------------------------------------------------------
Target - Quantity Catwalk and 650,000
Dialpack Products
------------------------------------------------------------------------------
.1.1.1.3.
Year 2003
------------------------------------------------------------------------------
Target empty dispenser, 1,000,000 3,20 - 25% each
w/o cartridges 3.60 quarter
------------------------------------------------------------------------------
Target - empty cartridges 1,000,000 0.50 -
0.55
------------------------------------------------------------------------------
.1.1.1.4.
Year 2004
------------------------------------------------------------------------------
Target - empty dispenser, 2,000,000 2.90 - 25% each
w/o cartridges 3.60 quarter
------------------------------------------------------------------------------
Target - 2 empty cartridges 2,000,000 0.45 -
0.50
------------------------------------------------------------------------------
Additional charge for starterset packaging especially made for the customer
on request (instruction leaflet, plastic outer box, etc)
..1.2. Payment conditions
50% in advance after order entry, 50% 14 days after delivery Delivery ex
works Kaufbeuren
DIALPACK GmbH, Xxxxxxxxxxx 0. X - 00000 Xxxxxxxxxx, Xxxxxxx
