Exhibit 10.4
MANUFACTURERS AGREEMENT FOR
PRIVATE LABEL COMPANIES
THIS CONTRACT made this Twelfth day of June, 1995 between XXXXXXXXX
FOODS CORPORATION, a New Jersey Corporation, trading as Andrea's, hereinafter
referred to as the "Manufacturer", doing business at 000 Xxxxx Xxxxxxxxx Xxxxxx,
in the City of Orange, County of Essex and State of New Jersey, on the one part,
and; SILVER STAR RAVIOLI COMPANY, INC., X.X. Xxx 000000, Xxxxxxxx, Xxx Xxxx
00000, hereinafter called the "Private Label Company", of the other part.
WITNESSETH, that the said party of the first part, for and in
consideration of the sum of FIVE THOUSAND ($5,000.00) DOLLARS to be paid and
satisfied as hereinafter mentioned, and also in consideration of the covenants
and agreements hereinafter mentioned, made and entered into by the said party of
the second part, agrees as follows:
The manufacturer shall make the following product lines to be purchased
by the Private Label Company for sale in the retail and/or wholesale
marketplace, by said Private Label Company:
1. Product (A) - 13 oz. Large Round Cheese Ravioli
Packed 12 Ravioli Per Bag -
24 Units Per Case, $13.85 Per Case.
2. Product (B) - 16 oz. Cavatelli
Packed One Pound Per Bag -
24 Units Per Case, $9.95 Per Case.
The prices listed in this Agreement are contingent upon the Private
Label Company's monthly sales of 7,000 cases of Product (A) and 3,000 cases of
Product (B). If Private Label Company fails to purchase from Manufacturer the
above mentioned volume over a fifty-two (52) week period, the Manufacturer
reserves the right to raise prices according to usage or lack there of.
No order by Private Label Company shall be less than 250 cases of
Product (A) or Product (B).
2. The Manufacturer shall pay for all bags, labels and corrugated boxes
as needed in its sole discretion, to manufacture and package the product line
set forth in Paragraph 1 above for the Private Label Company, at the
Manufacturer's sole cost and expense.
However, the Manufacturer shall not pay for or be responsible
for artworks, plates, dyes of any kind needed for the packaging of said product
lines. Manufacturer will not purchase more than sixteen (16) weeks supply of
packaging. The amount will initially be based on projections made by Private
Label Company. After a history of sales has been established, the 16-week supply
will be determined by the sales of the Private Label Company.
3. If the Private Label Company "ceases to do business" for any reason
whatsoever with the Manufacturer, the Private Label Company shall reimburse the
Manufacturer for all costs and expenses incurred or contracted for by the
Manufacturer for purposes of fulfilling this agreement such as, finished
product, inventory of finished product, raw material and supplies, paper
products, manufacturing expenses, legal fees, storage expenses, etc. "Ceases to
do business" with Manufacturer is hereby defined to be the failure by Private
Label Company to purchase 7,000 cases of Product (A) and 3,000 cases of Product
(B) within any one (1) month period. If the Private Label Company "ceases to do
business" as defined herein, it shall constitute a default under this Agreement.
4. The Private Label Company shall pay the Manufacturer a minimum
retainer of Five Thousand ($5,000.00) Dollars to offset the Manufacturer's start
up costs to be put in an interest bearing account. The interest will accumulate
and paid in full yearly to Private Label Company. If, prior to one (1) year from
the date hereof, Private Label Company elects to terminate this Agreement of
Manufacture, the $5,000.00 will be returned to Private Label Company upon
payment in full of all end product, packaging, corrugated, etc. If Private Label
Company does not pay for the above mentioned costs, Manufacturer shall retain
the retainer fee in full. If the Manufacturer extends credit terms to the
Private Label Company, the $5,000.00 retainer shall be released to Private Label
Company.
5. In the event of a Default by the Private Label Company of this
Agreement, the Manufacturer shall be entitled to keep all deposit monies paid as
liquidated damages plus all other advances paid by the Private Label Company on
order given to date, plus the Private Label Company agrees to be liable for all
consequential damages resulting from the default and/or breach of this Agreement
including attorneys fees, costs of suit and interest on amounts due and owing
the Manufacturer from the date of all open purchase orders. Damages shall also
include discharging, reloading, handling, storing or any other reasonable
services or expenses incurred in the manufacture, storage, preservation, resale
and distribution (where applicable) of the product line of the Private Label
Company. A Default by Private Label Company shall occur upon the failure to (1)
pay the orders as provided for hereunder; (2) to make the minimum purchases; or
(3) to comply with all other terms of this Agreement.
6. The Manufacturer agrees to produce in accordance with Good
Manufacturing Practices and Federal and State Food Regulation, and will deliver
same to Private Label Company. However, the Manufacturer shall not be liable for
damages after the product has
left its control or for damages arising out of label misstatements or false
advertising statements. The Manufacturer will be liable for any short weight
product or improperly packaged product.
7. The Manufacturer disclaims any and all warranties either express or
implied warranties for a Particular Purpose or Merchantability. The Manufacturer
will provide the Private Label Company with a certificate of insurance naming
the Private Label Company as an additional insured.
8. Payment shall be made by Private Label Company in cash, certified
check, bank check or wired to Manufacturer's bank account by 11:00 a.m. to the
Manufacturer for the entire amount due and payable to the Manufacturer one (1)
day prior to shipment/pickup of end product. This payment procedure will apply
for twelve months from the first invoice date. After six (6) months from the
first invoice date, the Manufacturer will review the payment procedure set forth
in this Agreement and will decide to alter or not alter the payment procedure.
9. The Manufacturer shall not be responsible for its failure to meet
any manufacturing product, packaging or distribution deadline established by the
Private Label Company if the Private Label Company does not give the
Manufacturer proper lead time on confirmed ads and proper and reasonable sales
projections of at least four (4) weeks in advance.
10. All formulas and manufacturing procedures used by the Manufacturer
are proprietary to the Manufacturer and will be kept confidential and not
revealed to any party.
11. Either party may terminate this Agreement at any time by giving the
other party notice in writing of such desire of termination at least one hundred
twenty (120) days upon which date such termination is to occur. A notice shall
be supplied by certified mail return receipt requested effective upon delivery
or by hand delivery of said notice. Effective upon termination of the Private
Label Company shall immediately pay the Manufacturer for any open outstanding
invoices, if any, and agrees to pay in full on all pending orders for said
product line.
12. During the term of this Agreement, the Private Label Company agrees
to make the Manufacturer its exclusive manufacturer and packager of said product
lines. The Private Label Company shall be allowed, in emergent circumstances, to
obtain product from any other supplier or producer at any price, to satisfy its
order requirements in the event the Manufacturer cannot satisfy such
requirements, upon providing telephone notice to Manufacturer.
13. The decision of manufacturing and packaging of the Private Label
Company's private line of said product line shall be exclusively that of the
Manufacturer. The parties
mutually agree and understand that the price of manufacturing and packaging may
escalate without notice due to factors beyond the control of the Manufacturer.
The Private Label Company agrees to pay for any and all increases in
manufacturing and packaging costs incurred directly by the Manufacturer upon
Manufacturer giving ten (10) days written notice. Concurrently, the Manufacturer
will also pass along decreases in manufacturing and packaging costs as they
occur. The Manufacturer will review these prices with the Private Label Company
every three (3) months.
14. The Private Label Company agrees to place all outside orders with
Manufacturer . The Private Label Company agrees that the Manufacturer shall not
be responsible for the nonperformance of any order that is not confirmed with a
written acceptance of the purchase order or be responsible for any penalties the
Private Label Company may incur as a result of nonperformance.
15. The Private Label Company represents that it is a New York
Corporation and that this contract was approved by duly authorized corporate
resolution.
16. The Private Label Company will arrange for all orders to be picked
up at the Manufacturer's plant address or its nearest storage facility by
Private Label customers. In the event that pick-up is not made by Private Label
customer, the Manufacturer will not be responsible or liable for delivery and
will not deliver product for Private Label Company. Consequently, the Private
Label Company will be solely responsible to arrange for pick-up of product by
any means necessary.
17. This Agreement shall be governed by the laws of New Jersey. Private
Label Company does hereby submit to the jurisdiction of the New Jersey courts
and agrees it may be served with a Complaint by certified mail.
18. All Notices shall be in writing and shall be by certified mail,
return receipt requested, to the party at the addresses stated in this
Agreement, attention to the party signing the Agreement.
19. This Agreement sets forth the understanding of the parties and
there are no oral agreements. This Agreement may only be modified by a written
agreement signed by the parties.
20. This Agreement shall be binding on the parties and their successors
and assigns.
WITNESSETH: XXXXXXXXX FOODS CORPORATION
A New Jersey Corporation,
Manufacturer
/s/ Rose Xxxxx Xxxxxxxxx BY: /s/ Xxxxxxx Xxxxxxxxx
------------------------- ----------------------------------
ROSE XXXXX XXXXXXXXX XXXXXXX XXXXXXXXX,President
Assistant Secretary
WITNESSETH: SILVER STAR RAVIOLI COMPANY,
INC.
/s/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxx Xx.
------------------------- ----------------------------------
XXXXXXX XXXXXX, President XXXXXXX XXXXXX XX., C.E.O.
