NON-EXCLUSIVE DISTRIBUTION AND PROFIT SHARING AGREEMENT
Exhibit 10.2
This
Non-Exclusive Distribution and Profit Sharing Agreement (this
“Agreement”) is made as of
this 20th day of November, 2019 (the “Effective Date”) by and
between CANNTAB THERAPEUTICS USA
(FLORIDA), INC., a Florida corporation (to be
incorporated), located at ____________ (“Company”), and
EXACTUS, INC., a Nevada
corporation, located at 00 XX 0xx Xxx, Xxxxxx Xxxxx, XX 00000
(“Distributor”) with
respect to the distribution of certain products offered for
distribution by Company.
WHEREAS
the Company has developed a proprietary process for the
manufacturing of the Products as hereinafter set
forth.
AND
WHEREAS the Company has agreed to appoint the Distributor as a
non-exclusive distributor of the Products in the Territories (as
hereinafter defined);
AND
WHEREAS the parties will also on the date hereof enter into a
Supply Agreement whereby the Distributor will sell CBD Oil to the
Company;
AND
WHEREAS the Products are more particularly described in Exhibit A
attached hereto; and
AND
WHEREAS the Distributor has leased space (hereinafter called the
“Joint Premises”) at the location described in Exhibit
2 attached hereto and shall sublease a portion of the Joint
Premises to the Company.
1. Appointment.
A. (i) Subject
to this Agreement’s terms, Company hereby appoints
Distributor, and Distributor accepts the appointment as a
distributor, to market, promote, sell, and deliver the Products
within the Territories (defined below) on a non-exclusive basis.
Distributor acknowledges that the Company shall be authorized to
sell Products directly within the Territories either under a
private white labeling program or directly to customers of the
Company, subject to Section 7 hereof.
(ii) Distributors
rights pursuant to this Agreement shall include all 50 states and
all territories of the United States of America (each, a
“Territory,” and collectively, the
“Territories”). Provided that Distributor is in full
compliance with this Agreement, the Company will not grant a third
party the right to promote, sell or deliver the Products to
customers within the Territories, except pursuant to Section 7
hereof.
(iv) Distributor
shall have the non-exclusive right to sell the Products online
through Distributor’s company website. For the avoidance of
doubt, although Distributor may sell the Products online in
accordance with this subsection, Company also has the right to sell
its Products online to customers located in the Territories
provided such sales are effected pursuant to Section 7
hereof.
B. Distributor
acknowledges and agrees that it has no right to distribute any
products of Company other than the Products identified in
Exhibit A. Company
reserves all rights not expressly granted to Distributor in this
Agreement, including, without limitation the right to sell private
white label products in the Territories. Company’s sale to
Distributor of any products other than the Products identified in
Exhibit A and/or
its sale of any products (including Products) to Distributor after
the expiration or termination of this Agreement, regardless of the
reason, (i) shall not constitute, be construed as, or give rise to
any express or implied distribution agreement, course of conduct,
or other relationship between Company and Distributor, (ii) shall
not confer upon Distributor any rights of any nature whatsoever,
including, without limitation, to purchase and/or sell or continue
to purchase and/or sell any products, including Products, or use
the trademarks, copyrights and patents associated with the Products
or Company as set forth in Exhibit B (the
“Intellectual
Property”) other than with respect to products sold
and delivered by Company to Distributor, and (iii) shall constitute
a separate transaction for each shipment of products actually
delivered by Company to Distributor. Company has the right as it
deems best to withdraw and/or cease any such sales at any
time.
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2. Distributor’s Duties.
Distributor shall perform its obligations in compliance with this
Agreement and all required standards, procedures, and guidelines
that Company may provide to Distributor from time to time during
the term of this Agreement. Without limiting any of its other
obligations under this Agreement, Distributor shall comply with the
following:
A. Provide support and
advice on promoting, selling or marketing existing Products and new
product offerings of Company and distribute new and updated
technical and sales literature to customers as provided by
Company.
B. Use commercially
reasonable efforts to promote, market and sell the products within
the Territories
C. Permit Company and
its representatives to inspect and audit Distributor’s
operations relating to the Products.
D. Promote and sell
Products only for approved applications and uses consistent with
applicable law and Company’s requirements.
E. Provide
monthly reporting to the Company in a form satisfactory to the
Company in connection with reporting sales, collections and gross
profits derived therefrom for purposes of paying the Company its
share of profits in accordance with Section 7 (c)
hereof.
F. Maintain
in strict confidence all commercial information disclosed by
Company to Distributor that Company marks or identifies as
confidential (which obligation expressly survives expiration or
termination of this Agreement).
G. Obtain
on behalf of and for the benefit of the Company and the Distributor
all licenses necessary in the Territories to carry on the
manufacture and sale of the Products by the parties
hereto.
H. Maintain all
Products in appropriate condition and packaging and consistent with
applicable law and the Company’s requirements.
3. Company’s Duties. During
the term of this Agreement, Company agrees to:
A. Manufacture the
Products with (i) the highest degree of quality, (ii) exercising
best commercial practices; and (iii) in compliance with all state
and federal laws. If requested by Distributor, the Company shall
provide the Distributor with quality control manuals,
B. Provide the
Products to Distributor at the Joint Premises in proper packaging
to ensure the quality of the Product upon delivery to the
Distributor.
C. Provide reasonable
prior notice to Distributor regarding anticipated changes in
Product availability, Product changes, price changes or any other
matter that may affect the ability of the Distributor to adequately
performs its services hereunder.
D. Provide literature
and merchandising aids, including promotional materials to enable
Distributor to distribute to potential customers.
E. Company shall make
commercially reasonable efforts to restrict third parties with who
Company conducts business from soliciting customers of the
Distributor. In the event Company becomes aware of a third party
with who Company conducts business that is soliciting or selling
Products to customer of Distributor, Company agrees to take
commercially reasonable measures to help prevent such solicitation
and sales from continuing to take place.
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F. Company shall make
commercially reasonable efforts to ensure it is able to fulfill
Distributor’s regular and forecasted order demand for
Products in a reasonable and consistent manner. Should there be any
interruptions of Product supply to Distributor, or reasonable basis
to expect an interruption of Product Supply to Distributor, Company
shall timely notify Distributor of the issue, and the management of
both organizations will make reasonable efforts to coordinate a
mutually agreeable action plan to remedy.
4. Product Prices. Product prices
shall be as set forth in Company’s then-current price list,
as amended by Company from time to time upon ninety (90) day
written notice to Distributor. The current price list is attached
as Exhibit 2. The
Company and the Distributor will meet quarterly during the Term to
establish pricing. The Company’s pricing shall include a 30%
overhead charge on the Company’s direct manufacturing costs
of labor and material.
5. Orders. All Product purchase
orders shall be in writing and shall be subject to acceptance by
Company, which will not be unreasonably withheld, delayed or
conditioned. The Company will notify the Distributor in writing
within 48 hours of receipt of Distributor’s purchase order
specifying in detail the reason for not accepting the purchase
order, otherwise the purchase order will be deemed accepted by the
Company. In the event of a conflict between the terms included in a
purchase order and the terms of this Agreement, the terms of this
Agreement shall prevail. If there is a shortage in the available
supply of any Products, as a result of which Company cannot fulfill
all Distributor orders, Company may allocate the available supply
of Products to the Distributor provided that the Distributor is
provided with no less than 50% of the available
supply.
6. Payment and Profit Sharing. The
Company and the Distributor agree to profit sharing as set forth
below in connection with sales of the Product by each party to
third parties (“Profit Sharing”) as set
forth below:
A. Profit Sharing in Connection with
Distributor Sales. Distributor and the Company will share in
the Gross Profits (as hereinafter defined) derived from the sales
of the Distributor in connection with the Products on a 50/50
basis.
B. Profit Sharing in Connection with
Company Sales. Distributor and the Company will share in the
Gross Profits (as hereinafter defined) derived from the sales
effected by the Company in connection with the Products on a 90/10
basis, whether such sales are to customers of the Company or
arising from any private white labelling program of the Company to
third parties.
X. Xxxxx Profits Defined. For
purposes of Section 7 A and B above, Gross Profits shall be defined
as (1) the total gross receipts actually received by the
Distributor or the Company on sales of the Products which are
collected by the Distributor or the Company, as the case may be
less (1)
the price paid by the Distributor to the Company for the Products,
(2) any sales taxes or surcharges (3) sales returns or mutually
agreed upon sales allowances and (4)
direct sales commissions. The Company and the Distributor
will meet quarterly during the Term to establish direct
compensation schedule.Currently and
for the first quarter inside sales commissions are set to 5% for
spot sales and 3% for long term contract sales.
..
D. Capital Costs. Notwithstanding
anything to the contrary herein, there will be no Profit Sharing on
Gross Profits until such time as the any capital costs incurred by
the Distributor or the Company, as the case may be, are fully
recouped for leasehold improvements incurred by the Distributor at
Distributor’s location for the benefit of the Joint Venture
or equipment acquisition incurred by the Company at the
Distributor’s location related to the manufacture of the
Products of the Company for the benefit of the Joint
Venture.
7. Title and Risk of Loss. Title
to the Products shall pass to Distributor upon Distributor’s
receipt of the Products at the Joint Premises. All risk of loss in
the Products shall pass to Distributor when the Products are
provided to the Distributor at the Shares Premises. Company will
not bear the risk of loss after the Products thereafter. However,
if any Products are established, to Company’s satisfaction,
to have been damaged when delivered to Distributor, Company will
either make an appropriate adjustment in the original sales price
of such Products or replace the damaged Products, at
Company’s election. Distributor has ten (10) days after
delivery of the Products to notify Company of any apparent damaged
Products.
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8. Independent Contractors.
Nothing in this Agreement shall create or be deemed to create a
partnership or joint venture or the relationship of principal and
agent between the parties.
9. Warranty. The Company warrants
that all Product delivered hereunder shall have a minimum shelf
life of 12 months, conform in all
material respects to the applicable specifications, shall be
free from defects in design, materials and workmanship and in full
compliance with all applicable laws. The Warranty contained in this
Section 9 shall be in lieu of all other warranties whatsoever
whether with respect to fitness for a particular purpose,
merchantability or pursuant to any applicable sale of goods act in
the United States.
10. Intellectual
Property.
A. Distributor
acknowledges Company’s rights and title to and interest in
the Trademarks, whether or not registered, patents and patent
applications (“Patents”), copyrights
(“Copyrights”), and trade
secrets and know-how (“Know-How”) that Company
may have at any time created, adopted, and used in connection with
the Products (collectively, the “Intellectual Property”).
Distributor shall not do, or cause or permit to be done, any acts
or things contesting or in any way impairing or tending to impair
any portion of Company’s rights and title to and interest in
the Intellectual Property. The Company hereby grants to
Distributor, at all times during the Term, a license to use
Intellectual Property on a non-exclusive, royalty free
basis.
B. Distributor shall
not use any trademark, brand name, logo, or other production
designation or symbol in connection with Products other than
Trademarks. Distributor acknowledges that it has no right or
interest in Intellectual Property (except as expressly permitted
under this Agreement) and that Distributor’s use of
Intellectual Property inures solely to Company’s benefit.
Distributor may use the Intellectual Property only in accordance
with Company’s policies and instructions, which Company may
modify from time to time as it deems best.
C. In all advertising,
promotions, and other activities relating to the Products,
Distributor shall clearly indicate Company’s ownership of the
Intellectual Property.
D. Upon the expiration
or termination of this Agreement, Distributor shall cease and
desist from any further use of the Trademarks or any confusingly
similar name, xxxx, logo, or symbol and any Intellectual
Property.
11. Promotion. Distributor shall be
solely responsible for marketing and promoting Products to
customers within the Territories. During this Agreement’s term, Company
shall take the action it deems
appropriate to promote the overall national, regional, or other
branding, imaging, and positioning of the
Products.
12. Term, Successor Distributorships, and
Termination.
A. Term. This Agreement’s
term commences on the Effective Date and expires two (2) years from
that date (the “Initial
Term”).
B. Upon the expiration
of the Initial Term, Distributor may obtain two (2) consecutive
renewal terms to operate as a distributor of Company (each, a
“Renewal
Term”). Each of the Renewal Terms will be for two (2)
years in duration, and the first Renewal Term shall commence
immediately upon the expiration of the Initial Term.
C. Termination. Company or
Distributor may terminate this Agreement only as
follows:
(i) By Either Party
Without
Cause. Both Company and
Distributor may terminate this Agreement at any time without
cause by providing written notice to the other party at least sixty (60) days prior to the
expiry of the Initial Term of any Renewal Term.
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(ii) By
Either Party with Cause. Either may terminate this Agreement
at any time, effective upon delivery of written notice to other
party, if:
a) A breach of this
Agreement that is not cured within 30 days by the breaching party
after written notice specifying the details of the breach by the
non-breaching party.
b) The Company fails
to maintain any licenses or permits required to operate its
business, as mandated by law.
c) Distributor or any
of its owners makes or attempts to make an unauthorized assignment
of this Agreement, the distributorship, or there is a change of
control of the ownership interest in Distributor.
d) Either party makes
an assignment for the benefit of creditors or admits in writing its
insolvency or inability to pay its debts generally as they become
due; the party consents to the appointment of a receiver, trustee,
or liquidator of all or the substantial part of its property; the
business is attached, seized, subjected to a writ or distress
warrant, or levied upon, unless the attachment, seizure, writ,
warrant, or levy is vacated within thirty (30) days; or any order
appointing a receiver, trustee, or liquidator of such party or its
business is not vacated within thirty (30) days following the
order’s entry. Either party takes the benefit of or becomes
subject to any law now or hereafter, in force for bankrupt or
insolvent debtors.
D. Upon expiration or
sooner termination of this Agreement, all of Distributor’s
rights and interests hereunder, including any limited right to
display the Trademarks or brand of the Products, shall terminate
and expire immediately and Company shall be free to enter into a
new distribution agreement with another party, with no right to the
Distributor to receive any compensation.
E. Notwithstanding the
foregoing, termination, the Company shall continue to supply
Products to Distributor following the termination or expiration of
this Agreement in connection with any purchase orders submitted by
Distributor to Company which have been accepted by and not yet been
fulfilled by the Company, and Distributor acknowledges and agrees
that such action does not constitute a waiver of Company’s
rights under this Agreement or a reinstatement, renewal, or
continuation of this Agreement’s term.
F. Following
termination or expiration (without a renewal term) of this
Agreement, Distributor shall immediately return to Company all
samples, advertising material and documents related to the
Products. Company shall also have the option, exercisable upon
written notice to Distributor within thirty (30) days after the
date of termination or expiration of this Agreement, to repurchase
some or all (at Company’s option) of the Products then owned
by Distributor. The purchase price of all inventory (in full,
unopened case-loads) will be at the previously invoiced price (less
any freight and insurance charges). All purchase prices are F.O.B.
Company’s premises.
13. Exclusion of
Damages.
A. COMPANY SHALL NOT
BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF
BUSINESS OPPORTUNITY, OR ANY OTHER PECUNIARY LOSS) SUFFERED BY
DISTRIBUTOR RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE USE OF OR
INABILITY TO USE OR SELL THE PRODUCTS AND/OR FROM ANY OTHER CAUSE
WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
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B. EACH AND EVERY
PROVISION OF THIS AGREEMENT PROVIDING FOR A LIMITATION OF LIABILITY
OR WARRANTIES, DISCLAIMER, OR EXCLUSION OF DAMAGES IS EXPRESSLY
INTENDED TO BE SEVERABLE AND INDEPENDENT FROM ANY OTHER PROVISION,
SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK
ALLOCATION BETWEEN THE PARTIES, AND SHALL BE SEPARATELY
ENFORCED.
14. Representations
and Warranties
. Each
party represents and warrants to the other party that: (i) it has
full power and authority to enter into this Agreement and to carry
out its obligations hereunder, except as such may be limited by
bankruptcy, insolvency, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights generally and
further subject to general principles of equity and public policy
(ii) this Agreement constitutes a valid and binding obligation of
each party hereto, enforceable against it in accordance with its
terms; (iii) its execution, delivery and performance of this
Agreement will not result in a breach of any material agreement by
which such party may be bound, or will not result in the breach of
any obligation of confidentiality or nondisclosure by which such
party may be bound; and (iv) it is in compliance with and will
comply with all applicable laws with respect to its rights and
obligations under this Agreement..
15. Indemnification.
A. Distributor agrees
to indemnify, defend, and hold harmless Company, Company’s
affiliates, and their respective owners, directors, officers,
employees, agents, successors, and assignees (the
“Company Indemnified
Parties”) against, and to reimburse any one or more of
the Company Indemnified Parties for, all third-party claims and any
other obligations and damages directly or indirectly arising out
of: (1) the activities of Distributor or any of Distributor’s
owners, agents, personnel or employees; (2) the business
Distributor conducts under this Agreement; (3) any action taken by
Distributor or any of Distributor’s owners, agents, personnel
or employees that: (i) violates a federal, state or local law or
regulation; or (ii) violates a Company rule, policy or procedure;
(4) third party products Distributor distributes in addition to the
Products; or (5) Distributor’s breach of this Agreement,
unless (and then only to the extent that) the claims, obligations,
or damages are determined to have been caused by the Company
Indemnified Party’s negligence or willful misconduct in a
final, unappealable ruling issued by a court or arbitrator with
competent jurisdiction.
B. The Company agrees
to indemnify, defend, and hold harmless Distributor,
Distributor’s affiliates, and their respective owners,
directors, officers, employees, agents, successors, and assignees
(the “Distributor
Indemnified Parties”) against, and to reimburse any
one or more of the Distributor Indemnified Parties for, all
third-party claims and any other obligations and damages directly
or indirectly arising out of: (1) the activities of the Company or
any of Company’s owners, agents, personnel or employees; (2)
the business Company conducts under this Agreement, including but
not limited to its manufacturing practices; (3) any action taken by
Company or any of Company’s owners, agents, personnel or
employees that: (i) violates a federal, state or local law or
regulation; or (ii) violates a Company rule, policy or procedure;
(4) third party claims against Distributor in connection with the
Products; or (5) Company’s breach of this Agreement, unless
(and then only to the extent that) the claims, obligations, or
damages are determined to have been caused by the Distributor
Indemnified Party’s negligence or willful misconduct in a
final, unappealable ruling issued by a court or arbitrator with
competent jurisdiction.
C. For purposes of
this indemnification, “claims” set forth in A or B
above include all obligations, damages and actual costs that any
Indemnified Party reasonably incurs in defending any claim against
it, including, without limitation, reasonable accountants’,
arbitrators’, attorneys’, and expert witness fees,
costs of investigation and proof of facts, court costs, travel and
living expenses, and other expenses of litigation, arbitration, or
alternative dispute resolution, whether or not litigation,
arbitration, or alternative dispute resolution is commenced. Each
Indemnified Party may defend any claim against it at
indemnitee’s expense and agree to settlements or take any
other reasonable remedial, corrective, or other actions. This
indemnity continues in full force and effect after and
notwithstanding this Agreement’s expiration or
termination.
16. Insurance. During this
Agreement’s term and for three (3) years after it expires or
is terminated, Distributor agrees to maintain insurance policies of
the nature and amounts as are customary in the industry, which
shall name Company as an additional insured for all claims arising
from Distributor’s operation (providing for a waiver of
subrogation rights against Company and not less than sixty (60)
days written notice of any modification or termination of
coverage). Distributor shall send Company, at least thirty (30)
days before the end of coverage period, evidence of such insurance
for the upcoming coverage period in a form satisfactory to
Company.
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17. Non-Disparagement. Each party
agrees that it will not, and it will cause its affiliates,
officers, and employees to not, disparage or defame the other
party, or its affiliates, officers, employees or sales
representatives in any respect or make any disparaging comments
concerning the business relationship between the parties or the
matters referred to in this Agreement.
18. Non-Solicitation. Upon
termination or expiration (without the grant of a successor
distributorship) of this Agreement, each party agrees that, for two
(2) years beginning on the effective date of termination or
expiration or, in the case of any particular person restricted by
this paragraph, beginning on the date that restricted person begins
to comply with this paragraph, whichever is later, neither such
party nor any of its affiliates, officers, or employees,
(collectively, the “Restricted Persons”),
will recruit or hire any person then employed, or who was employed
within the immediately preceding twelve (12) months, by the other
party without obtaining the other party’s prior written
permission. If any Restricted Person refuses voluntarily to comply
with these obligations, the two (2) year period for such Restricted
Person will begin with the entry of a court order enforcing this
provision. The two (2) year period will be tolled, if applicable,
for the period during which a Restricted Person is in breach of
this paragraph and will resume when such Restricted Person begins
or resumes compliance.
If any
covenant under this Section is deemed unenforceable by virtue of
its scope in terms of area, business activity prohibited and/or
length of time, but would be enforceable if modified, Company and
Distributor agree that the covenant may be “blue
penciled” and enforced to the fullest extent permissible
under the laws and public policies applied in the jurisdiction
whose law determines the covenant’s validity.
19. Assignment.
A. Distributor may not
transfer this Agreement or its right to distribute the Products
without Company’s prior written consent which will not be
unreasonably withheld, delayed or conditioned. Any purported
assignment or delegation by Distributor without Company’s
written consent shall be void and of no effect.
20. No Agency. The relationship
between Company and Distributor is that of vendor and vendee, and
nothing in this Agreement shall be construed as constituting either
party the employee, agent, franchisee, independent contractor,
partner or co-venturer of the other party. Neither party shall have
any authority to create or assume any obligation binding on the
other party.
21. Governing Law. EXCEPT TO THE
EXTENT GOVERNED BY THE UNITED STATES TRADEMARK ACT OF 1946 (XXXXXX
ACT, 15 U.S.C. SECTIONS 1051 ET SEQ.) OR OTHER FEDERAL LAW,
THIS AGREEMENT AND ALL CLAIMS ARISING FROM THE RELATIONSHIP BETWEEN
COMPANY AND DISTRIBUTOR WILL BE GOVERNED BY THE LAWS OF THE STATE
OF NEVADA, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES, EXCEPT
THAT ANY NEW YORK LAW REGULATING DISTRIBUTORSHIPS OR SIMILAR
COMMERCIAL RELATIONSHIPS WILL NOT APPLY UNLESS ITS JURISDICTIONAL
REQUIREMENTS ARE MET INDEPENDENTLY WITHOUT REFERENCE TO THIS
SECTION. THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF
GOODS SHALL NOT BE APPLICABLE TO THIS AGREEMENT.
22. Consent to Jurisdiction.
DISTRIBUTOR AGREES THAT ALL ACTIONS ARISING UNDER THIS AGREEMENT OR
OTHERWISE AS A RESULT OF THE RELATIONSHIP BETWEEN COMPANY AND
DISTRIBUTOR MUST BE COMMENCED IN THE STATE OR FEDERAL COURTS IN THE
STATE OF FLORIDA IN PALM BEACH COUNTY, AND DISTRIBUTOR IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THOSE COURTS AND WAIVES ANY
OBJECTION IT MIGHT HAVE TO EITHER THE JURISDICTION OF OR VENUE IN
THOSE COURTS.
23. Waiver Jury Trial. EACH PARTY
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER
PARTY.
24. Force Majeure. Company will not
be liable for any delay or failure to perform or other loss due to
unforeseen circumstances or causes beyond its control, including,
without limitation, acts of God, strikes, material and/or
transportation shortages, natural casualties and disasters,
governmental regulations, import restrictions and prohibitive
import taxes, war, terrorist acts, fire, flood, and civil unrest.
Any delay resulting from these causes will extend Company’s
performance accordingly or excuse Company’s performance, in
whole or in part, as may be reasonable.
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25. Waivers. No waiver of any
provision hereof or of any terms or conditions established by
Company will be effective unless in writing and signed by the party
against which enforcement of the waiver is sought. Company will not
waive or impair any right, power, or option this Agreement reserves
(including, without limitation, its right to demand strict
compliance with every term, condition, and covenant or to declare
any breach to be a default and to terminate this Agreement before
the term expires) because of any custom or practice varying from
this Agreement’s terms or Company’s failure, refusal,
or neglect to exercise any right under this Agreement or to insist
upon Distributor’s compliance with this Agreement, including,
without limitation, any Performance Standard.
26. Product Recall. If any
governmental agency or authority issues a recall or takes similar
action in connection with the Products, or if Company determines
that an event, incident, or circumstance has occurred which may
require a recall or market withdrawal, Company may advise
Distributor of the circumstances by telephone, facsimile, or other
means. Company shall have the right to control the arrangement of
any Product recall, and Distributor shall cooperate in the event of
a Product recall with respect to the reshipment, storage, or
disposal of recalled Products, the preparation and maintenance of
relevant records and reports, and notification to any recipients or
end users.
27. Interpretation. If any
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as drafted jointly by the parties, and
no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. No provision of this Agreement shall
be construed against any party on the grounds that such party or
its counsel drafted that provision.
28. Severability. If any provision
of this Agreement is held invalid for any reason by a court,
government agency, body, or tribunal, the remaining provisions will
be unaffected thereby and shall remain in full force and
effect.
29. Notices. All written notices,
reports, and payments permitted or required to be delivered by this
Agreement will be deemed delivered to the address set forth in the
preamble of this Agreement. Either party may change its notice
address and/or contact person by giving the other fifteen (15)
days’ prior notice by any of the means specified in clauses
(a) through (d) above.
30. Counterparts. This Agreement
may be executed in multiple counterparts, which may be delivered by
an exchange of original signature pages or of facsimiles, email
attachments or other similar means of electronic transmission, all
of which taken together will constitute one single Agreement
between the parties hereto.
31. Confidentiality of Agreement
Terms. Each party agrees to
treat as confidential and proprietary, and shall not, except as
permitted by the terms of this Agreement, at any time for any
reason whatsoever disclose to any third party or make use of, or
permit to be made use of, any information relating to the business
affairs or finances, trade secrets, pricing, customer lists or
other confidential information of the other (the "Confidential Information"); provided,
however, that such obligation shall not apply to information of a
party that:
(i) becomes generally
known to the public, either before or after the date of its
disclosure to the receiving party, through no fault or omission on
the part of the receiving party;
(ii) is
lawfully disclosed to the receiving party, either before or after
the date of its disclosure to the receiving party, by an
independent third party rightfully in possession of such
Confidential Information;
(iii) is
lawfully in the possession of the receiving party at the time of
its disclosure, as evidenced by the prior written records of such
receiving party;
(iv) is
required to be disclosed by the receiving party pursuant to any
applicable law or court of administrative order, provided the
receiving party provides the other party with advance notice of
such disclosure and an opportunity for the other party to seek a
protective order or such other appropriate remedy prior to such
disclosure; or
(v) is making a
disclosure as is required by the applicable rules of any stock
exchange or applicable securities laws.
(a) All Confidential
Information disclosed under this Agreement shall remain
confidential for a period of five (5) years following the
termination of this Agreement and in the case of trade secrets for
such period of time as permitted by applicable law.
-8-
IN
WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Non-Exclusive Distribution and
Profit Sharing Agreement as of the date first above
written.
|
COMPANY:
CANNTAB THERAPEUTICS USA (FLORIDA), INC., a Florida
corporation
By:
/s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
CEO
|
DISTRIBUTOR:
EXACTUS,
INC., a Nevada corporation
By:
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
CEO
|
-9-
EXHIBIT A
NON-EXCLUSIVE
DISTRIBUTION AGREEMENT
PRODUCT LIST AND PERFORMANCE STANDARDS
The
following products are encompassed within the defined term
“Products” used in the Distribution
Agreement:
Product List:
For
purposes of this Exhibit
A, “Invoiced Sales” means the gross invoiced
price for the Products sold to Distributor by Company and does not
include Distributor’s initial order of Products (as required
under Section 6 of
the Distribution Agreement), any freight charges and taxes;
provided that Invoiced Sales shall be reduced by any applicable
discounts, rebates, returns, credits, and other similar allowances.
For purposes of the definition of “Invoiced Sales,” in
order for a Product to be considered “sold,”
Distributor must have paid Company the gross invoice price in
full.
A-1
EXHIBIT B
NON-EXCLUSIVE
DISTRIBUTION AGREEMENT
INTELLECTUAL PROPERTY
B-1
EXHIBIT C
NON-EXCLUSIVE DISTRIBUTION AGREEMENT
CURRENT PRICE LIST
h:\client\10910\10910-022\documents\non-exclusive
distribution agreement\non-exclusive distribution agreement
v2.docx
C-1
