CAN-AM RETAILER AGREEMENT
VENDOR: RETAILER:
CAN-AM INTERNATIONAL Silcorp Ltd. (Western Division)
#102-4663 XXXXX ROAD #000-00000 Xxxxxxxxx Xxxx, X.X.
Phone: (000) 000-0000 Fax: (000) 000-0000
Toll Free: 0-000-000-0000 (000) 000-0000 ( )
------------------------------
British Columbia and Sasketchewan only
Effective Date: April, 21, 1997
1. TERM OF AGREEMENT. The initial term of this Agreement shall be for
one (1) calendar years from the date first written above (the "First Term").
This Agreement shall automatically renew at the expiration of the First Term for
up to three (3) additional one (1) year terms (each an "Additional Term") unless
either of the parties, at least thirty (30) calendar days prior to the end of
the then existing First Term or Additional Term gives written notice to the
other party that the Agreement shall not renew.
2. GENERAL RETAILER OBLIGATIONS. Retailer agrees to use its best
efforts during the term of this Agreement to actively promote, in all lawful
ways and to the maximum extent possible, the marketing and sale of Can-Am
Products to Customers at the Retail Location. Retailer shall conduct its
operations at the Retail Location in a manner which will not reflect adversely
upon the reputation, quality or credibility of Can-Am or the Can-Am Products.
Furthermore, in the event that Retailer becomes aware of any complaints, charges
or claims concerning Can-Am or the Can-Am Products, Retailer shall immediately
notify Can-Am of such complaints, charges or claims. Retailer shall respond to
such complaints only as directed by Can-Am after consultation with Can-Am.
Retailer shall comply with all applicable federal, territorial, province and
local laws and regulations in performing its duties hereunder. Retailer may
market and sell tobacco and other products other than the Can-Am Products so
long a such other products are not sold in or from humidors or other containers
or displays similar to or resembling humidors.
3. CONTACT PERSON. Retailer shall provide Can-Am with the name and
phone number of the person responsible for communications with Can-Am regarding
this Agreement. Upon any change in the name or phone number of such person.
Retailer shall notify Can-Am in writing five (5) calendar days of such changes.
4. HUMIDORS. All Can-am Products shall only be displayed in and sold
from humidors or other display units (each a "Can-An humidor" and collectively
"Can-Am humidors") provided by or sold to Retailer by Can-am or an authorized
distributor of Can-Am Products (a Can-Am Distributor") pursuant to this
Agreement. Either Can-Am or a Can-am Distributor shall provide Retailer with the
Can-Am Humidors required for the sale of Can-Am Products at the Retail Location.
Neither Can-Am nor the Can-Am Distributor shall charge Retailer for the first
Can-Am Humidor for each display position at the Retail Location (each a "First
Can-Am Humidor" and collectively "First Can-Am Humidors"). Retailer shall be
responsible for the care, maintenance of all Can-Am Humidors placed in or at the
Retail Locations. Can-Am either directly or through a Can-Am distributor, shall
be responsible for the stocking of the Can-Am humidors with Can-Am Products. Any
and all damaged, lost or stolen Can-Am Humidors shall be repaired or replaced by
Can-Am or a Can-Am Distributor, with the cost of any such repairs or
replacements being charged to and paid by Retailer. Any replacement of Can-Am
Humidors for which Retailer is charged, shall be made at a cost equal to the
Can-Am's * of such Can-Am Humidors * of such price. Notwithstanding the
foregoing, however, any repair or
* Confidential portions omitted and filed
separately with the Commission.
1
replacement of a Can-Am Humidor due to manufacturing defects or normal wear and
tear shall be made by Can- Am at no charge or cost to Retailer.
5. HUMIDOR PLACEMENT. Retailer agrees to have at least one (1) Can-Am
Humidor prominently displayed on the front or main counter of each Retail
Location. Such Can-Am Humidor shall be located on the front or main counter of
the Retail Location such that (i) no displays, signs, labels or other materials
whatsoever, other than those provided or approved by Can-Am, block or impinge on
a retail customer's complete view of the entire front, sides and top of the
Can-Am Humidor and (ii) the Can-Am Humidor is easily and readily accessible to a
retail customer. If a problem arises regarding such placement of a Can-Am
Humidor at a Retail Location. Retailer shall notify Can-Am of such problem and
shall consult with Can-Am for the resolution of such problem to the reasonable
satisfaction of both the Retailer and Can-am.
6. PRODUCTS AND DISPLAY: OWNERSHIP. Only Can-Am Products may be placed
in or on Can-Am Humidors or sold from Can-Am Humidors. If any non Can-Am
Products are sold in, on or from Can-Am Humidors, Retailer shall pay to Can-Am,
in addition to any other damages available to can-Am under equity or law, the
wholesale cost of any and all such non-Can-am Products so placed or sole.
Retailer and Retail Location shall display only Can-Am provided or approved
labels, displays or signs in, on or around the Can-Am Humidors. All Can-Am
Humidors provided to Retailer pursuant to this Agreement, including replacement
for damaged, lost or stolen Can-Am Humidors, shall be and shall remain the
property of Can-Am. Upon the termination of this Agreement for any reason.
Retailer shall return to Can-Am, within thirty (30) business days of such
termination, all Can-Am Humidors provided to Retailer pursuant to the Agreement.
Any and all costs of the return of Can-Am Humidors pursuant to the Section 6
shall be paid by Retailer.
7. PAYMENT. Retailer shall pay for all Can-Am Products placed in a
Can-Am Humidor at each Retail Location. Such payment shall be made pursuant to
the terms and conditions specified in the invoice for such Can-Am Products
provided to Retailer by either Can-Am or a Can-Am Distributor. Retailer shall be
responsible for any late charges accruing on all payments due and owing pursuant
to Can-Am invoice.
8. RETAILER, WARRANTIES AND REPRESENTATIONS. Retailer acknowledges that
its strict performance of the obligations of this Agreement is essential to the
success of its distributions, sales and marketing of Can-Am Products to the
Retail Locations. Retailer, therefor, covenants, represents and warrants the
following to Can-Am. Retailer holds all necessary federal, provincial,
territorial and local licenses and permits (the "Retailer Permits") required for
the sale, distribution and marketing of Can-Am Products to retail Locations in
accordance with applicable law. Retailer shall also require all Retail Locations
to be properly licensed for the selling of Can-Am Products and all such sales by
the Retail Locations shall comply with applicable law. There are no actions or
proceedings pending or contemplated within the knowledge of retailer that would
in any way jeopardize any Retailer Permits. Retailer is in good standing under
the laws of the province, territory and nation in which it is located, has all
requisite corporate or organizational authority required to perform its
obligations under this Agreement and has taken all corporate or organizational
actions reacquired for the performance of its obligations under this Agreement.
Retailer's performance of its obligations under this Agreement will not violate
any agreement or contract to which it is a party.
9. POLICIES AND PROCEDURES. Retailer shall at all times conform with
and carry out the distribution, sales and marketing programs and policies
established by Can-Am from time to time. Can-Am expressly reserves the right to
change such programs and policies at any time. Furthermore, except for any
materials provided to Retailer by Can-Am, any and all marketing or sales
materials related to the Can-Am Products must be approved in writing by Can-Am
prior to the use or distribution of such materials by Retailer. Retailer shall
at no time engage in any unfair trade practices with respect to Can-Am or the
Can-Am Products and shall make no false or misleading representations,
guarantees or warranties with respect to the Can-Am
* Confidential portions omitted and filed
separately with the Commission.
2
Products, except such as are expressly authorized by Can-Am in writing or are
set forth in written materials provided by Can-Am.
10. INDEPENDENT CONTRACTOR. Can-Am Retailer specifically agrees that
for all purposes hereunder, Retailer is, and shall be deemed to be, an
independent contractor. Neither Retailer nor Retailer's employees, agents or
representatives shall be deemed to be employees, agents or representatives of
Can-Am, nor shall any of them have the power to enter into any contract,
agreement or obligation on behalf of Can-Am or to otherwise legally bind Can-Am
in any way, nor enlarge upon or extend any warranty or representation regarding
Can-Am Products beyond that made by Can-Am in any way, nor enlarge upon or
extend any warranty or representation regarding Can-Am Products beyond that made
by Can-Am or the manufacturer of such products. Retailer shall be responsible
for obtaining and paying for any and all costs, bonds, insurance and licenses
required for Retailer's distribution, sale and marketing of the Can-Am Products.
Retailer shall also be further responsible for the collection, payment and
reporting of any and all taxes required to be paid and/or reported by Retailer
by any federal provincial, state, territorial or local government including, but
not limited to, any and all sales, use, tobacco, employee withholding, use and
valued taxes.
11. RELATED PRODUCTS. During the period ending one (1) year from the
date first written above or during any other period that Retailer distribute,
sells or markets Can-Am Products pursuant to this Agreement, Retailer agrees not
to sell or market, either directly or indirectly, any products similar to or
competing with the Can-Am Products. Can-Am shall be entitled to recover from
Retailer Can-Am's costs, expenses and attorneys' fees incurred in enforcing
Can-Am's rights under this Section 16. The provisions of this Section 16 shall
survive the termination, expiration or assignment of this Agreement.
12. INDEMNIFICATION. Retailer agrees to and does hereby fully identify
and hold harmless Can-Am and any of Can-Am's affiliates, successors, assigns,
officers, directors, shareholders, employees, and agents (the "Indemnified
Parties"), from and against any and all losses, damages, liabilities,
obligations, judgements, settlements, costs and other expenses incurred or
suffered by the Indemnified Parties by reason of the ascertain of any claim or
the institution of any litigation against them during the term of this agreement
or subsequent to its expiration or termination, which is directly or indirectly
based upon or related to any acts or omissions of Retailer, Retailer's employees
or agents, or which are directly or indirectly based upon or related to any
breach by Retailer of this Agreement. Retailer's shall assume the defense, at
its sole expense, of any claim or litigation as to which it has an
indemnification obligation hereunder. If Retailer fails to do so, the
Indemnified Parties shall have the right to assume their own defense, and
Retailer shall be obligated to reimburse the Indemnified Parties for any and all
reasonable expenses (including, but not limited to, attorneys' fees) incurred in
the defense of such claim or litigation, in addition to Retailer's other
indemnity obligations hereunder.
13. DISCLAIMER OF IMPLIED WARRANTIES. Unless considered unenforceable
or unlawful under applicable law, all impled warranties relating to any products
sole by Can-Am to Retailer, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES
FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE are hereby disclaimed.
Can-Am liability, if any, to Retailer for alleged defective products shall,
under any legal or equitable theory, be limited to repair or replacement of the
product, at the sole option of Can-Am, and shall in no event include damages of
any kind, whether incidental, consequential or otherwise.
14. GOODWILL. Retailer agrees that it neither has, nor will acquire,
any vested or proprietary right or interest with respect to marketing and sale
of Can-Am Products, and that any such goodwill created or increased during the
term of this Agreement shall be considered the property of Can-Am.
* Confidential portions omitted and filed
separately with the Commission.
3
15. AGREEMENT TO PERFORM NECESSARY ACTS. Each party to this Agreement
agrees to perform any further acts reasonably required under the terms of this
Agreement and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of this Agreement.
16. GOVERNING LAW. This Agreement has been made and entered into in the
Province of British Columbia and subject only to applicable international law,
shall be construed in accordance with the laws of the Province of British
Columbia, Canada, excluding its choice of law provisions. The parties agree
that, subject only to applicable international law, the Courts of British
Columbia shall be the property and exclusive forum for any action relating to a
dispute between the parties arising out of, or related to, this Agreement. Each
party consent to the in personam jurisdiction of said court. The prevailing
party in any dispute arising under this Agreement shall be entitled to receive
its cost, fees, and expenses, including attorney's fees. Reasonable attorney's
fees shall be determined by the court and not a jury.
17. SURVIVAL. Any obligation or agreement herein which has not been or
cannot be fully performed prior to the termination or expiration of this
Agreement shall survive such termination or expiration.
18. NOTICES. The service of any notice provided for in this Agreement
shall be complete and effective on the date such notice is placed in the British
Columbia mail, certified or registered with return receipt requested, postage
prepaid, and addressed to the respective parties as first written above.
19. SECTION HEADINGS. The section headings contained in this Agreement
are for convenience only and shall in no manner be construed as a part of this
Agreement.
20. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement are for convenience only and shall in no manner be construed
as a part of this Agreement.
21. BINDING ON SUCCESSORS AND ASSIGNS. Subject to the provisions
herein, all covenants and agreements in this Agreement shall extend to and be
binding upon the heirs, legal representatives, successors and assigns of the
respective parties hereto.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands as
of the date first above written.
June 3/97 /s/ [illegible]
------------------ ---------------------------
Date Silcorp Limited
June 3/97 /s/ Xxxxx Xxxxx
------------------ ---------------------------
Date Can-Am International
* Confidential portions omitted and filed
separately with the Commission.
4
