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 ("Agreement") is made this 24th day of January, 2008,
by
and between PURPLE BEVERAGE COMPANY INC, a Nevada corporation d/b/a Purple
Beverage (hereinafter called "Supplier" or the "Company") whose address is
000
Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and Crosset
Company an Ohio corporation (hereinafter called "Distributor") whose address
is
00000 Xxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS,
Supplier is the owner or exclusive U.S. licensee, with authority to sublicense,
the trademarks as listed on Exhibit A hereto, and all service marks, designs,
logos, trade names, advertising, commercial symbols and slogans used in
connection with Products (as defined below) (collectively or separately, the
"Trademarks") for non¬alcoholic beverages and concentrates used in the
manufacture thereof; and
WHEREAS,
Supplier is engaged in the business of selling beverages and concentrates
bearing one or more of the Trademarks, hereinafter called "Products" or "the
Products" in various product forms, as set forth on Exhibit B hereto and such
other forms as the parties may agree from time to time; and
WHEREAS,
Distributor is engaged in the business of manufacturing, selling and
distributing beverages; and
WHEREAS,
Supplier and Distributor hereby propose that Supplier license the Trademarks
to
Distributor, and Supplier sell the Products to Distributor for Distributor's
resale and distribution in the Territory specified below; and
NOW,
THEREFORE, in consideration of these premises and the mutual covenants contained
herein, Supplier and Distributor agree as follows:
1. Appointment.
1.1 Territory.
The
Company hereby appoints the Distributor as its exclusive distributor for the
Products in the Territory, having the exclusive right to sell and distribute
the
Products in the Territory as set forth in Exhibit C. Distributor hereby accepts
such appointment as the Company's exclusive distributor of the Products in
the
Territory subject to the terms and conditions set forth herein.
1.2 Exclusivity.
Except
as set forth in paragraph 3(c), during the term of this Agreement, the Company
agrees that it shall not, directly or indirectly, appoint any other distributor
for Products in the Territory or sell any Products in the Territory for the
Company's own account or the account of any affiliate, parent or subsidiary
of
the Company.
1.3 Business
of Distributor.
The
parties acknowledge that the Distributor may sell products other than the
Products, both within and outside the Territory.
1.4 Trademarks.
The
Company hereby grants to the Distributor the nonexclusive, nonassignable,
nontransferable right to use the Company's trademarks, trade names and trade
dress described in the attached Exhibit A solely in connection with the
distribution, marketing, and sale of the Products in the Territory. The
Trademarks will remain the Company's sole and exclusive property.
2. TERM
AND PRICING
This
Agreement will become effective upon execution of this Agreement by each of
the
parties hereto, and will remain in effect for a period of time as set forth
in
Exhibit D (the "Term") unless earlier terminated as provided in Paragraph 8.
At
the end of the initial Term, this Agreement shall renew on the mutual consent
of
the parties for an additional term equal to one half the time period of the
Term
(a "Successive Term").
Attached
hereto and marked Exhibit E is the current pricing schedule for the Products;
Supplier may in its sole and absolute discretion on 60 days notice to
Distributor change the pricing schedule for the products.
3. Supplier's
Obligations.
a. Supplier
hereby licenses the Trademarks and other Intellectual Property to Distributor
for use on and in connection with the advertising, promotion, sale and
distribution of the Products.
b. Supplier
shall not increase its prices for Products without giving Distributor at least
60 days' advance written notice.
c. Supplier
hereby sets aside an exclusive area described in the schedule attached hereto
as
Exhibit "C" (the "Territory") in which no person or entity other than
Distributor will distribute, sell or promote the Products. However, Supplier
retains the exclusive right to sell to national chains which require to conduct
business "warehouse delivered." This includes, but is not limited to, national
chains such as: Wholefoods; GNC; Starbucks; Vitamin Shoppe; Kroger; Xxxxx
Markets; Target; Trader Joes, etc.
d. Supplier
shall create and make available to Distributor advertising and promotion
materials for the Products in an amount, form, and upon terms established by
Supplier.
e. Supplier
shall pay or credit to Distributor's account, when due, not less frequently
than
monthly, all credits, discounts, allowances, incentive payments, xxxx backs
or
other reimbursements due Distributor pursuant to any program to which Supplier
and Distributor may agree in writing.
f. Supplier
shall replace all the Products delivered to Distributor which do not meet the
quality standards as established by the Supplier at Supplier's cost, including
transportation between Supplier and Distributor, or a credit to Distributor's
account shall be allowed, at Supplier's sole option.
4. Distributor's
Obligations
a. The
Distributor shall supply the Products to customers in the Territory in
accordance with the terms of this Agreement.
b. The
Distributor shall develop and execute marketing programs promoting the Products
in the Territory.
c. The
Distributor shall maintain a business organization and equipment reasonably
sufficient to market and distribute the Products in the Territory.
d. The
Distributor shall maintain inventory quantities reasonably sufficient to fill
the orders of its retail customers, but in no event will the Distributor be
required to maintain an inventory quantity on any SKU of more than 30
days.
e. The
Distributor shall maintain warehouse space in good condition and of sufficient
capacity for packages and sizes of the Products to meet the demand of customers
and to meet all Federal, state and local laws and regulations.
f. The
Distributor will notify the Company promptly after becoming aware of any
infringement of any of the Trademarks. The Distributor will reasonably assist
the Company (at the Company's expense) in any action or proceedings that the
Company may institute as the result of such infringement.
g. The
Distributor will refrain from removing the Trademarks from Products, from using
the Trademarks on any other product except the Products, and from using the
Trademarks in the Distributor's corporate or business names without the
Company's prior approval.
h. The
Distributor will not sell or solicit the sale of Products to customers located
outside the Territory, nor to any customer within the Territory if the
Distributor reasonably believes such customer will sell the Products for resale
outside the Territory.
i. The
Distributor shall hold in confidence any information supplied by the Company
to
the Distributor that is expressly designated as confidential and shall not
divulge the same to any other person, firm or corporation without the prior
written permission of the Company. The Distributor shall use its best efforts
to
maintain the confidentiality of the Company's confidential information. The
obligations of the Distributor to maintain the confidentiality of the Company's
confidential information shall survive the termination of this
Agreement.
j. Distributor
shall pay Supplier for Product and any other items sold by Supplier to
Distributor in accordance with the written prices and terms of sale as
established by the Supplier. Attached hereto and marked Exhibit F is the current
pricing schedule for the Products. The pricing schedule may be amended by from
time to time during the Term at the sole discretion of the Company.
k. Distributor
shall comply with all laws, rules, regulations, requirements, orders and
ordinances now in effect or which may hereafter be enacted or promulgated
applicable to its operations or relating to the subject matter of this
Agreement.
l. Distributor
shall cooperate in maintaining and submitting to Supplier at regular intervals,
but not less than monthly sales, marketing and similar reports relating
to Product in a mutually agreed form; provided that Distributor shall
not be
required to provide any customer-level or account-level
information.
m. Distributor
warrants and represents that it has full authority to enter into this Agreement
and that by executing this Agreement; the Agreement represents the binding
obligations of the Seller.
5. Supplier
Representations.
Supplier
represents and warrants that:
(i)
the
Products (A) shall be pure and wholesome, fit for human consumption,
merchantable and free from all defects, (B) shall, in all instances, comply
with
all Federal, state or local laws and regulations, in all respects, including
without limitation, beverage quality, labeling, identity, quantity, packaging,
and returnable container or deposit requirements; (C) shall not be adulterated
and misbranded within the meaning of those terms under the Federal Food, Drug
and Cosmetic Act, as amended, and shall not be an article or articles which
may
not, under the provisions of said Act, be introduced into interstate commerce;
(D) shall not be adulterated or misbranded within the meaning of the Federal
Insecticide, Fungicide, and Rodenticide Act, the Federal Hazardous Substances
Act, or any applicable state pure foods act or any other applicable Federal,
state, or local law or regulation; and (E) when delivered to Distributor, shall
have a remaining shelf life of not less than 24 months, with the production
date
marked on the outside of all beverage containers.
(ii) Supplier
is the owner or exclusive U.S. licensee of the Trademarks used in connection
with the Products, and Supplier has the right to license the Trademarks to
Distributor throughout the term or this Agreement, and that Distributor's use
of
the Trademarks will not infringe or violate the rights of any third party;
and
(iii) Supplier
has full authority to enter into this Agreement and is not under any obligation,
written or otherwise, to any other party which would prevent Supplier from
complying with all the terms and conditions of this Agreement.
6. Trademarks.
a. Distributor
shall notify Supplier promptly upon discovery of any use of any xxxx, trade
name
or trademark similar to any of the Trademarks. Supplier shall not be required
to
take any action with respect to any infringement, but Distributor shall join
with Supplier, when requested by Supplier, in any proceeding or litigation
or
other action for the protection of the Trademarks and the goodwill associated
therewith. All costs and expenses of such litigation or action shall be borne
by
Supplier.
b. If
Supplier does not take legal action against an infringement, Distributor may
do
so in its own name and/or that of Supplier, provided that Distributor bears
all
costs and expenses of such action. In that event, Distributor shall be entitled
to any and all proceeds of such action.
c. Nothing
contained in this Agreement shall be construed to vest in Distributor any right,
title or interest in or to any of the Trademarks other than the rights and
license expressly granted herein.
7. Indemnification
and Insurance.
a. Distributor
shall indemnify and save harmless Supplier from and against all losses, claims,
damages or other costs of any nature or kind whatsoever arising directly or
indirectly out of or relating to any allegation of: (i) the breach of any
warranty, representation or agreement made by Distributor in this Agreement;
(ii) the negligence or intentional misconduct, misfeasance or nonfeasance of
Distributor, its officers, employees, agents, servants or contractors; (iii)
any
quality or condition of or inherent defect introduced into the Products as
a
consequence of the improper storage, warehousing, distribution or sale by
Distributor of Products; or (iv) the conduct of Distributor's business
(including the use of promotional materials and packaging not designed,
manufactured or approved by the Supplier). Such indemnity shall include, but
not
be limited to, reasonable expenses, attorneys' fees, court costs and other
expenses of investigation, litigation and settlement of any such claim. Supplier
shall provide Distributor prompt written notice of receipt of any such claim
and
shall not settle any such claim without the prior knowledge and written consent
of Distributor, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, upon written notice to Supplier that Distributor
has assumed the defense of any legal action or proceeding, Distributor shall
not
be liable to Supplier for any legal or other expenses subsequently incurred
by
Supplier in connection with the defense thereof, except in the event of a
conflict of interest or other matter that prevents counsel for Distributor
from
fully and zealously representing the interests of both Supplier and
Distributor.
b. Supplier
shall indemnify and save harmless Distributor from and against all losses,
claims, damages or other costs of any nature or kind whatsoever arising directly
or indirectly out of or relating to any allegation of: (i) the breach of any
warranty, representation or agreement made by Supplier in this Agreement; (ii)
Distributor's use of the Trademarks in the Territory; (iii) the negligence
or
intentional misconduct, misfeasance or nonfeasance of Supplier, its officers,
employees, agents, servants or contractors; (iv) any quality or condition of
or
inherent defect in the Products supplied by Supplier, including but not limited
to any imperfection, contamination or substandard quality, production,
packaging, processing, storage or transportation or other condition relating
to
the Products at or before the time they were received by Distributor; (v) any
wrongful, false or misleading claim, advertising or representation by Supplier
or by any agent or representative of Supplier regarding the Products; (vi)
any
third party that such person or entity has any right, claim or color of right
granted or allowed by Supplier to purchase, sell, market or distribute Products
in the Territory; or (vii) the conduct of Supplier's business (including the
promotional materials and packaging designed, manufactured or approved by the
Supplier). Such indemnity shall include, but not be limited to, reasonable
expenses, attorneys' fees, court costs and other expenses of investigation,
litigation and settlement of any such claim. Distributor shall provide Supplier
prompt written notice of receipt of any such claim and shall not settle any
such
claim without the prior knowledge and written consent of Supplier, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, upon written
notice to Distributor that Supplier has assumed the defense of any legal action
or proceeding, Supplier shall not be liable to Distributor for any legal or
other expenses subsequently incurred by Distributor in connection with the
defense thereof, except in the event of a conflict of interest or other matter
that prevents counsel for Supplier from fully and zealously representing the
interests of both Supplier and Distributor.
c. Notwithstanding
the foregoing, to the extent that any claim that would otherwise be subject
to
indemnification pursuant to Paragraph 7.a. is traceable in whole or in part
to:
|
i.
|
any
ingredient supplied by Supplier;
|
|
ii.
|
Any
act or failure required or approved by Supplier;
and/or
|
|
iii.
|
Any
matter subject to indemnification by Supplier under Paragraph
7.b.
|
then
Supplier shall pay the percentage of all costs, fees, damages, judgments and
decrees allocable to such ingredient, act, failure or matter, and Distributor
shall pay only for the percentage of the costs, fees, damages, judgments and/or
decrees allocable to Distributor's own acts or failure to act.
d. During
the term of this Agreement, each party shall secure, pay for and maintain in
full force and effect comprehensive general liability insurance (including
contractual liability and with product liability coverage respecting the
Products) in an amount of not less than $3 million in the aggregate and $1
million per occurrence. Such insurance maintained by each party shall name
the
other party as additional insured. Each party shall furnish to the other
annually a certificate confirming such coverage.
8. Termination.
a. Supplier
may terminate this Agreement if Distributor does not correct, as provided in
this Paragraph 8b., any failure, other than a failure resulting from events
of
Force Majeure, to fulfill any of its obligations pursuant to this Agreement,
after receiving written notice from Supplier identifying the alleged failure
and
stating that Supplier intends to terminate this Agreement if such failure is
not
cured. Distributor shall have sixty days after receipt of such notice to effect
a cure of any default, provided, however, that if any such default cannot be
cured within sixty days of said notice, Distributor shall be deemed to have
cured the default if Distributor commences to cure the default within such
sixty
day period and proceeds thereafter to complete the cure within the period in
which such cure can be completed; and provided further that if a default is
of a
nature that cannot be cured, Distributor shall be deemed to have cured such
default if it establishes procedures to prevent a recurrence of the same type
of
default. Upon a failure by Distributor to cure a default, Supplier may at its
sole option terminate this Agreement by written notice to the Distributor after
which time the Distributor shall have no further rights to offer or sell the
Products in the Territory.
b. In
addition to any other grounds for termination set forth herein, this Agreement
may also be terminated by Supplier in the event of:
i. Distributor's
failure to purchase the minimum required Product as set forth on Exhibit F
for a
period of more than thirty days, excluding delays caused by Force Majeure as
defined herein;
ii. Any
insolvency of Distributor or any assignment by Distributor for the benefit
of
creditors; or the filing of a voluntary bankruptcy or reorganization petition
by
Distributor or the failure of Distributor to vacate an involuntary bankruptcy
or
reorganization
petition
filed against Distributor within sixty (60) days after the date of such filing,
or the failure of Distributor to vacate the appointment of a receiver or trustee
for the Distributor or any interest in the Distributor's business within sixty
(60) days after such appointment.
iii. This
Agreement may be terminated by Distributor without cause upon 60 days written
notice to Company after which time the Distributor shall have no further rights
in the Territory. Supplier may, after receipt of notice of termination from
Distributor, in its sole and absolute discretion, accelerate the termination
date to a period of no less than 30 days following receipt of the notice of
termination.
iv. This
Agreement may be terminated without cause by the Supplier on 60 days prior
written notice to the Distributor. If terminated without cause, the Company
shall be required to pay the Distributor a termination fee ("Termination
Payment") as calculated below.
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 60 days (60) days of the effective date of termination. If such payment
is not timely paid and actually received the [***]
then
established by Citigroup, N.A., or if Citigroup, N.A. does not then exist a
financial institution of like kind, until fully paid.
c. Upon
termination of this Agreement for any reason, Distributor shall discontinue
the
use of the Trademark in Distributor's trade name, or in connection with
advertising, sales and promotion materials, or otherwise, promptly after the
disposition of its remaining inventory of Products. On or before the termination
date, Distributor shall promptly provide Supplier with a detailed written
inventory setting forth all Products and point-of-sale materials owned by and
in
the possession of Distributor which bear the Trademarks. Distributor shall
then
make available to Supplier at Distributor's warehouse or other facility, for
the
inspection by Supplier, all such Products and other materials. Following
Supplier's receipt of such written inventory from Distributor and after a
reasonable period of time within which Supplier may inspect such inventory,
Supplier will itself promptly purchase or cause a third party to promptly
purchase and take title to and possession of all such inventory and materials
that are in good and merchantable condition and have a remaining shelf life
that
meets or exceeds industry standards, and are not otherwise obsolete or unusable.
The price to be paid by Supplier shall be the purchase price paid for such
inventory and materials, plus other costs incurred by Distributor related to
the
acquisition and receipt of such inventory and materials, such as freight and
insurance charges and any excise taxes, so as to arrive at Distributor's cost
of
all such inventory and materials. Notwithstanding the foregoing, visi-coolers,
venders and other cold equipment bearing Trademarks shall be retained by and
remain the property of Distributor, but Distributor shall promptly remove such
Trademarks from all such equipment.
d. This
Agreement may be terminated at any time by mutual consent of the parties in
writing effective as provided therein without payment of any Termination
Fee.
e. If
this
Agreement is terminated as a result of Supplier's decision not to renew or
as a
result of any default by Seller which is not cured within any applicable
curative period, then the Supplier, upon the request of the Distributor may
repurchase from the Distributor, at the Distributor's cost, all of the
Distributor's inventory obtained from the Supplier and then existing at the
time
of termination. Distributor shall pay a [***].
Distributor shall not be entitled to receive a Termination Fee if this Agreement
is terminated pursuant to this paragraph 8(e).
9. The
Distributor's Obligations Upon Termination.
Upon
termination of this Agreement, the Distributor will:
a. Within
five (5) business days, return to the Company at the Distributor's expense
all
advertising, promotional and sales materials in the Distributor's possession
that were furnished by the Company without limitation, brochures, catalogs,
price books, photographs, designs, drawings, and engineering and other
data;
b. Promptly
cease use of the Trademarks;
c. At
its
earliest opportunity, remove the Trademarks from the Distributor's vehicles
and
any of the Distributor's products, letterhead, business cards, and other
promotional materials.
10. Recalls.
a. If:
(i)
any
government agency recommends or requires the recall of any of the products
or
packaging; or
(ii)
either Supplier or Distributor determines that any the Products or packaging
should be recalled or should be withdrawn from distribution and
sale;
Based
upon a determination that such Products or packaging are not fit for human
consumption, are contaminated, constitute a health hazard, are of substandard
quality or are otherwise not saleable, then Supplier and Distributor shall
coordinate the immediate cessation of sale and distribution and/or the recall
or
withdrawal as necessary of all such Products or packaging from the Territory.
If
necessary or advisable, Distributor and Supplier shall cooperate to recall
and/or reacquire the applicable Products or packaging from any purchaser
thereof
b. If
the
problem at issue was not caused by Distributor, then Supplier shall pay the
costs and expenses associated with any such recall, and Supplier shall indemnify
Distributor for (i) its cost of all unsold recalled Products and packaging
and
the cost of returning such Products and packaging to Supplier or destroying
them, as Supplier may elect at Supplier's sole option; and (ii) its reasonable
costs and expenses associated with such recall, which costs may include but
are
not limited to credits, refunds, or other payments by Distributor to its
customers in connection therewith. For purposes of this Agreement, "cost" shall
include the cost (including invoice cost, insurance and freight) of all
ingredients, supplies and materials and the cost of production for Products
manufactured by Distributor, and the invoice cost, insurance and freight for
packaging and Products purchased in finished form by Distributor.
c. If
the
problem at issue was caused by Distributor, then Distributor shall pay the
costs
and expenses associated with any such recall, and Distributor shall indemnify
Supplier for its reasonable costs and expenses associated with such
recall.
11. Force
Majeure.
Neither
party shall have any liability to the other for any failure to perform its
obligations under this Agreement by reason of events beyond its reasonable
control, including but not limited to strikes, lockouts, labor disputes, floods,
fires, war, terrorist acts or threats, hurricane, typhoon and other like extreme
weather, earthquake, lightning, explosion, riots, disturbance, civil commotion,
epidemics, embargoes, quotas, shortage of inventory due to crop failure,
shortage of labor, delays in transportation, or government action, including
but
not limited to price controls, currency controls or detention of goods by
authorities ("Force Majeure"); provided, however, that the parties shall perform
their obligations to the maximum extent and as soon as reasonably
practicable.
12. Notices:
Except
for any notice required by law to be given in another manner, all notices
required or permitted by this Agreement shall be given by any one or more of
the
following methods:
(i) by
personal delivery with delivery charges prepaid; (ii) by overnight commercial
courier such as Federal Express with delivery charges prepaid, or (iii) by
certified mail return receipt requested, postage prepaid, as
follows:
If
to
Supplier, then:
Xxxxxxxx
Xxxxxxxxxx, President
000
Xxxx
Xxx Xxxx Xxxx.
Xxxxx
000
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
With
Copy
to:
Xxxxxxx
Xxxxx, Esq.
0000
Xxxxx Xxxxxxxx Xxxxx Xxxxx 000
Xxxx
Xxxxx, XX 00000
If
to
Distributor:
Xxx
Xxxxxxx
Xxxxxxx
Company
00000
Xxxxxxx Xxxxx
Xxxxxxxxxxxx,
Xxxxxxxx 00000
13. Miscellaneous.
a. The
subject headings of the sections, paragraphs and subparagraphs of this Agreement
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of this Agreement's provisions.
b. This
Agreement constitutes the entire agreement among the parties and there are
no
representations, warranties or commitments except as set forth herein. This
Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether written or oral of the parties hereto,
relating to the transactions set forth in this Agreement. No supplement,
modification or amendment to this Agreement shall be binding unless executed
in
writing with signatures of all parties to this Agreement (or the authorized
representative of the parties) witnessed and notarized. No waiver of any of
the
provisions of this Agreement shall be deemed, or shall constitute a waiver of
any continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right under this Agreement. No waiver shall be
binding unless executed in writing with signatures of all parties to this
Agreement (or the authorized representative of the parties) witnessed and
notarized.
c. There
are
no third party beneficiaries to this Agreement, and nothing in this Agreement
Is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to this Agreement and their respective
heirs, executors, administrators, permitted successors and assigns and other
legal representatives.
d. All
of
the terms, provisions and covenants of this Agreement shall be binding on,
and
shall inure to the benefit of, the parties to this Agreement and their
respective heirs, executors, administrators, permitted successors and assigns
and other legal representatives.
e. This
Agreement shall not be assignable by any party hereto without the express prior
written consent of all parties to this Agreement executed in writing with
signatures of all parties to this Agreement (or the authorized representative
of
the parties) witnessed and notarized. Consent to any assignment can be withheld
for any reason or no reason whatsoever. Any attempt at assignment in
contravention hereof shall be null and void.
f. If
any
term(s), provision(s) or covenant(s) of this Agreement is/are held to be
illegal, invalid, or unenforceable, then such term(s), provision(s) or
covenant(s) shall be fully severed from this Agreement, and this Agreement
shall
be construed and enforced as if such illegal, invalid, or unenforceable term(s),
provision(s) or covenant(s) had never comprised a part of this Agreement, and
the remaining term(s), provision(s) or covenant(s) of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable term(s), provision(s) or covenant(s) or by its/their
severance from this Agreement.
g. This
Agreement shall be interpreted, enforced and governed by the laws of the State
of Florida without regard to principals of conflict or choice of laws. Venue
for
any dispute, action, lawsuit or any proceeding whatsoever arising out of or
in
connection with this Agreement shall be heard in a federal or state court of
appropriate subject matter jurisdiction located in Broward County,
Florida.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the day first written above.
|
DISTRIBUTOR:
|
SUPPLIER
|
||||
|
By:
|
/s/
Xxx Xxxxxxx
|
By:
|
/s/
Xxxxxxxx Xxxxxxxxxx
|
||
|
Xxx
Xxxxxxx
|
Xxxxxxxx
Xxxxxxxxxx
|
||||
|
Its
Director of Procurement
|
Its
President
|
||||
|
Date:
1-25-08
|
Date:
1-25-08
|
||||
EXHIBIT
"A"
Trademarks
To Be Added
EXHIBIT
"B"
Schedule
of Authorized Product Forms
PRODUCT
FORMS
Purple
Antioxidant Juice
EXHIBIT
"C"
TERRITORY
DESCRIPTION
In
the
State of Kentucky and a 150 Mile Radius from the City of Independence: To
include all Kroger Food stores presently being serviced by
Distributor.
EXHIBIT
"D"
TERM
The
initial term of this Agreement shall be five (5) years commencing on the date
of
execution of this Agreement.
EXHIBIT
"E"
PRICE
LIST
|
PRODUCT
|
PRICE
|
|
|
Purple
Antioxidant Dist Cost [***]
|
Retail
Cost [***]
|
|
|
SRP
[***]
|
||
|
Dist
Credit [***]
|
On
the
opening order, [***],
Distributor will receive [***].
EXHIBIT
"F"
MINIMUM
QUANTITY PURCHASES
|
MINIMUM
PURCHASE
|
|||
|
REQUIREMENT
|
|||
|
Year
1
|
[***]
Cases
|
[***]
Cases/mo
|
|
|
Year
2
|
[***]
Cases
|
[***]
Cases/mo
|
|
|
Year
3
|
[***]
Cases
|
[***]
Cases/mo
|
|
|
Year
4
|
[***]
Cases
|
[***]
Cases/mo
|
|
|
Year
5
|
[***]
Cases
|
[***]
Cases/mo
|
|
