Exhibit 10.4
THIS AGREEMENT is made the ___ day of __________, 1996
(1) MIDDLE EAST DIRECT MARKETING SERVICES of XX Xxx 0000, Xxxxx 0000, Xxxxxx
(the "Distributor").
(2)
WHEREAS
(A) _____________ is a retailer of _____________ through mail order catalogues.
(B) The Distributor has requested _____________ to supply to the Distributor
products for re-sale to customers and to allow the Distributor to use a
catalogue produced by _____________ to facilitate such sales.
NOW THIS AGREEMENT WITNESSES as follows:
1. DEFINITIONS.
In this Agreement:
1.1 The "Territory" shall mean, Bahrain, Cyprus (Greek Sector), Egypt,
Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, United Arab
Emirates and the Palestinian Territories.
1.2 The "Products" shall mean the merchandise from time to time included
in the Catalogue except such merchandise as _____________ may notify
to the Distributor in writing is excluded from the offer and "Product"
shall be construed accordingly.
1.3 The "Catalogue" shall mean an edition of the _____________ Catalogue
and such other publications as _____________ may make available to the
Distributor from time to time.
1.4 The "Contract Period" shall mean the period from the Date of
Commencement to the date on which this Agreement shall be terminated.
1.5 The "Date of Commencement" shall mean 1st January 1996.
1.6 "Season" shall mean either Spring/Summer or Autumn/Winter as the case
may be.
1.7 "Warehouse" shall mean such of _____________ warehouse in the
_____________ as _____________ may notify to the Distributor in
writing from time to time.
1.8 "Current Catalogue" shall mean a Catalogue in respect of the Season
current at the relevant time.
1.9 "Ordered Product" shall mean a Product for which _____________ has
received a valid Order from the Distributor.
1.10 "Order" shall mean a request made to _____________ in accordance with
the provisions of the Schedule hereto for the supply to the
Distributor of a Product.
1.11 "___________________" shall mean the corporate trading and brand names
used by and any other part of the including (but
without limitation) and any brand name used in the
Catalogue.
1.12 "Statement Date" shall mean the date of issue by ________ of the first
fortnightly statement to include details of the invoice in respect of
the Ordered Products such invoice to be issued upon the Ordered
Products being made ready for despatch from the Warehouse.
2. CATALOGUES.
2.1 _______ shall supply to the Distributor before or as soon as
practicable after the commencement of each Season the number of
Catalogues specified in the Schedule for the relevant Season as agreed
between the parties from time to time.
2.2 The Catalogue shall be printed in the English language.
2.3 ______ shall make the specified number of Catalogues available for
collection from the Warehouse but shall have no other obligation to
deliver the Catalogues to the Distributor and the Distributor shall be
solely responsible for the shipment of the Catalogues from the
Warehouse.
2.4 The Distributor shall pay to ______ in respect of each Catalogue
delivered to it in accordance with clause 2.3 above the amount
specified in the Schedule or such alternative amount as shall
notify in writing to the Distributor not later than 1 month prior to
the start of relevant Season. Payment of the amount due from the
Distributor in respect of Catalogues shall be made in accordance with
the provisions of the Schedule.
3. ORDERS
3.1 ______ shall (subject to availability) use all reasonable endeavors to
supply to the Distributor within 7 days from the date of the Order all
Products ordered by the Distributor from a Current Catalogue. If
supply of any of the ordered products is delayed beyond such period,
the Distributor shall have the right to cancel the order in respect of
such ordered Products as have not been supplied at the time of such
cancellation upon being requested to do so by the customers.
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3.2 ______ shall at its own expense arrange for all available Ordered
Products to be delivered to the premises specified in the Schedule for
the relevant Season and the risk in such Ordered Products shall pass
to the Distributor upon such delivery but _______ shall not have any
further obligation to deliver the available Ordered Products to the
Distributor and the Distributor shall be responsible for the shipment
of all Ordered Products from such premises.
3.3 The Distributor shall be responsible for obtaining all necessary
licenses or approvals necessary for the importation and sale of the
Ordered Products and will be responsible for payment of all taxes
duties and similar impositions on the Ordered Products.
3.4 The Distributor shall make payment to _______ for an Order by bank
transfer to such account in the United Kingdom as ___________ shall
notify to the Distributor, payment to be made within 28 days of the
Statement Date, in Sterling and otherwise in accordance with the
payment terms set out in the Schedule for the relevant Season.
3.5 _________ shall, following the end of each Season give credit for the
price paid by the Distributor in respect of any Ordered Product which
is not supplied in accordance with Clause 3.1 above subject to due
allowance being made against such price in respect of any merchandise
wrongly supplied to the Distributor by __________ during that Season.
3.6 _________ shall, following the end of each Season, make due allowance
to the Distributor in respect of any Ordered Product which is
defective, subject to the Distributor providing evidence to reasonable
satisfaction that the defect was present when the Ordered Product
was applied.
4. EXCLUSIVITY
4.1 Subject to the value of orders being substantially in accordance with
the attached Business Plan the Distributor shall be the sole ________
distributor in respect of ___________ Export Catalogue and any other
catalog offering substantially the same product ranges that _____ may
decide to issue for distribution in the Territory and (subject to the
provisions of this Agreement) shall be entitled Distributor for
__________ in [-the Territory]". For the avoidance of doubt the
Distributor shall have no entitlement to be the distributor in respect
of any catalogue offering a substantially different product range from
that offered in the Export Catalogue and in the event of ____________
deciding to issue any such catalogue for distribution in the
Territory, the Distribution shall omit the word "Sole" from such
designation if _________ shall so request.
4.2 _________ shall be the exclusive supplier to the Distributor of all
merchandise featured in the Catalogue.
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5. BRAND NAMES
5.1 The Distributor shall not register (whether as a Trademark or
otherwise) or claim any rights in respect of any of the ____________.
5.2 The Distributor will provide all reasonable assistance which may be
requested by _________ in registering, protecting and defending the
use of any of the ________.
5.3 The Distributor will not alter remove or efface any part of the
Catalogue or any of the labels attached to any of the Products (except
as required by the Law of the Territory or as requested in writing by
_________).
6. THIRD PARTY RIGHTS
6.1 The Distributor shall at the request of __________ take any action
which __________ may regard as necessary or desirable to prevent or
limit the infringement of any third party's rights or alleged rights
including any of the following:-
(a) Ceasing to sell or advertise for sale such Products as __________ may
specify;
(b) Ceasing to sell or advertise for sale some or all of the Products in
such part of the Territory as _____________ may specify.
(c) Attaching to each copy of the Catalogue such details of amendments and
such other statements as ____________ may require;
(d) Printing and publicizing in such manner as _________ may reasonably
require any such statements as aforesaid
and _____________ shall reimburse any reasonable additional costs
incurred as a direct result of such request, but shall not be
responsible for any loss of profits or other consequential losses.
6.2 The Distributor is responsible for ensuring that the publication of
the Catalogue and the sale of the Products in the Territory comply
with all relevant Laws in the Territory. However, the Distributor
shall not be responsible for any infringement of the copyright or
trade xxxx rights of third parties as a result of the content or
design of the Catalogue or any of the Products or any label or
packaging supplied by ___________.
7. OTHER OBLIGATIONS OF THE _____________
7.1 The Distributor shall not sell any Products other than under the brand
name specified by ___________.
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7.2 The Distributor shall not do any act or thing the effect of which may
be to prejudice the reputation of ____________ or any other part of
the __________________.
7.3 In the event that _________ shall not receive payment for any Ordered
Products or Catalogues by the due date (in accordance with Clause 3.4)
the Distributor shall pay interest to ____________ on the amount
outstanding calculated from the said due date to the date of receipt
of payment by _________ at the rate of % above the base lending rate
from time to time of ______ Bank in the _____________.
7.4 The Distributor shall treat as strictly confidential all information
regarding the business or activities of _________ or any other part of
the ___________ (other than information which at the relevant time is
already in the public domain through no fault of the Distributor) and
shall not publish circulate or otherwise disclose or use any such
information except with the prior written consent of _____________.
7.5 The Distributor shall use all reasonable endeavors to promote the
Products and in particular (but without limitation) shall maintain
high levels of service to all its customers.
8. GENERAL
8.1 In the event of the failure by the Distributor to observe or perform
any of its obligations or duties hereunder which is either __________
irremediable or, if remediable, is not remedied to the reasonable
satisfaction of ___________ within One month of written notice of such
failure being given to the Distributor _________ shall be entitled to
terminate this Agreement forthwith by notice in writing to the
Distributor.
8.2 Except as provided below, the Distributor shall not be entitled to
assign the benefit if this Agreement or any of its rights or duties
hereunder. The Distributor shall be entitled to assign the entire
benefit of this Agreement with the prior written consent of _________
(such consent not to be unreasonably withheld) to an offshore company
established in the future by the Distributor which complies with the
following requirements:-
(A) It acts as a holding company for the Distributor's businesses;
(B) It has substantially the same shareholders as the Distributor;
(C) It has provided to __________ in such form as __________ may
reasonably require a legally enforceable commitment to comply
with all the provisions of this Agreement as if such company were
the Distributor.
Following such assignment, the said offshore holding company
shall have the right (subject to giving prior notice thereof to
_________) to subcontract its rights and benefits under this
Agreement to entities
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controlled by it or by the Distributor in different part of the
Territory PROVIDED ALWAYS THAT such assignment and/or
subcontracting shall hot affect any of _____________ rights and
benefits under this Agreement or the method of implementation o I
this Agreement.
8.3 The Distributor shall not have any authority to enter into any
contract or make ar commitment or representation on behalf of or
perform any act as agent for ________________.
8.4 This Agreement shall not be deemed to constitute a partnership or
joint venture or joint contract of employment between the parties.
8.5 This Agreement contains the full and complete understanding between
the parties and supersedes all prior arrangements and understandings
whether written or oral appertaining to the subject matter of this
Agreement and may not be varied (save as herein expressly provided)
except by an instrument in writing signed by on or behalf of each of
the parties.
8.6 If any provision of this Agreement shall be prohibited or judged to be
unlawful or void or unenforceable such provisions shall to the extent
required be severed from this Agreement and rendered ineffective so
far as possible without modifying the remaining provisions of this
Agreement which shall remain in full force and effect.
8.7 A failure by either party to exercise or enforce (and any delay by
either party in exercising or enforcing) any right in relation to this
Agreement shall not be deemed to be a waiver of any such right or
operate so as to bar the exercise or enforcement of that right at any
subsequent time or times. No exercise by either party of any right
shall operate as a waiver of any breach of contract by the other
party.
8.8 Any notice to be given under this Agreement shall be in writing and
shall be deemed to be sufficiently served if delivered (whether by
courier or otherwise) to the party in question at the address stated
in this Agreement (or such other address as th, relevant party may
notify to the other in writing at any time) and in the case of
any such notice shall be marked for the attention of the Company
Secretary. A notice served by fax transmission or electronic mail
shall be deemed to have bee i sufficiently served only if confirmed in
writing sent by courier on the same or the immediately following
working day.
8.9 Neither party shall be liable to the other for any failure or delay in
performing is obligations hereunder (other than an obligation to pay
money) where such failure or delay is due to an event beyond that
party's reasonable control including but not limited to any fire flood
riot explosion, act of God or industrial action (whether of its own or
any third party's employees).
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8.10 This Agreement shall be governed by and interpreted in accordance with
the Law, If England and Wales and shall be subject to the jurisdiction
of the English Courts.
8.11 The grant to the Distributor of all the rights referred to in this
Agreement is subject all applicable laws and regulations in the
Territory and all prior rights in favour of third parties and all such
rights are granted only in so far as ____________ legally empowered to
grant those rights BUT __________ warrants to the Distributor that has
not granted -D any other person the rights he in conferred upon the
Distributor.
9. DURATION
Subject to the provisions of Clause 8.1 above this Agreement shall
continue until terminated by either party serving on the other not
less than one full Season's notice in writing expiring at the end of a
Season.
IN WITNESS of which this Agreement has been signed for and on behalf of
and the Distributor.
SIGNED FOR AND ON
BEHALF OF
SIGNED FOR AND ON
BEHALF OF MIDDLE EAST
DIRECT MARKETING SERVICES
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SALES PROJECTIONS IN STERLING POUNDS
COUNTRY YEAR
1996 1997 1998 1999 2000
BAHRAIN
CYPRUS
EGYPT
JORDAN
KUWAIT
LEBANON
OMAN
QUTAR
SAUDI ARABIA
SYRIA
UNITED ARAB EMIRATES
PALESTINIAN TERRITORIES
TOTAL
The above projections assume that in the second year sales will double and that
in the two following years the growth rate will be 50%, and in the fifth year it
will normalize to 25%. We believe this is reasonable as the big surge in the
market will be in the second year as the catalog will have become known in the
market with proper advertising, and as our joint good service will have been
tested by customers.
Remark: The potential of the Saudi market is estimated by us to be
theoretically much larger than the sales projections mentioned above. However,
it is a very difficult market to penetrate and cultivate. We believe that once
this is achieved the actual sales will surprise us all. No cataloger has yet
succeeded in tapping into this market in a proper way. We believe it is
possible and achievable. We take it upon ourselves as a challenge to achieve
this.
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