IMPORTATION AND MARKETING AGREEMENT
This Agreement is made this December 19, 1997 by and among SEVEN-ELEVEN JAPAN
Co., Ltd., a Japanese corporation with its office at 0-0 Xxxxxxxxx 0-xxxxx,
Xxxxxx-xx, Xxxxx 000 Xxxxx (hereinafter called "SEVEN-ELEVEN"), TOWER ENTERPRISE
Corporation, a Japanese corporation with its office at 6F Aoyama Sun Crest
Bldg., 00-0 Xxxx-Xxxxxx 0-xxxxx, Xxxxxxxx, Xxxxx 000 Xxxxx (hereinafter called
"TOWER"), ATF Co., Ltd., a Japanese corporation with its office at 6F Aoyama Sun
Crest Bldg., 00-0 Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000 Xxxxx (hereinafter
called "ATF") on the one hand, and BEN & JERRY'S HOMEMADE, Inc., a Vermont
corporation with its office at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx
00000-0000 X.X.X. and BEN & JERRY'S HOMEMADE HOLDINGS, Inc., a Vermont
corporation with its office at #7 Burlington Square, Burlington, Vermont 05401
U.S.A.(hereinafter collectively called "B&J") on the other hand.
WHEREAS, SEVEN-ELEVEN, acting on behalf of the Ito-Yokado Group Companies (as
described in Annex 1 and hereinafter called "IY GROUP"), has appointed TOWER as
importer into Japan (hereinafter called the "TERRITORY") of certain ice cream
products (as defined in Article 2 of this Agreement and hereinafter called the
"PRODUCTS") manufactured by B&J in the United States; and
WHEREAS, TOWER, ATF and SEVEN-ELEVEN are affiliated companies: and
WHEREAS, TOWER, acting on behalf of IY GROUP, has agreed to import the PRODUCTS
and sell the PRODUCTS to ATF, which has been appointed by SEVEN-ELEVEN as the
vendor of the PRODUCTS; and
WHEREAS, ATF has agreed to act on behalf of IY GROUP in Japan to sell and
distribute the PRODUCTS for resale only in the convenience stores owned or
operated by SEVEN-ELEVEN and the outlets of IY GROUP in the TERRITORY; and
WHEREAS, B&J has agreed to produce and supply the PRODUCTS to be sold in the
TERRITORY by IY GROUP for resale only in the convenience stores owned or
operated by SEVEN-ELEVEN and the outlets of IY GROUP in the TERRITORY;
NOW THEREFORE, it is mutually agreed as follows:
Article 1. (Appointment and Status)
(1) B&J hereby agrees to produce and supply the PRODUCTS which will be
imported by TOWER and sold to ATF.
(2) SEVEN-ELEVEN hereby appoints TOWER as the importer of PRODUCTS on
behalf of IY GROUP in the TERRITORY for the purpose to sell the
PRODUCTS to ATF as the vendor appointed by SEVEN-ELEVEN. TOWER hereby
agrees to act as such importer.
(3) SEVEN-ELEVEN hereby appoints ATF as the vendor of the PRODUCTS on
behalf of IY GROUP in the TERRITORY for the sole purpose of sale and
distribution of the PRODUCTS for resale only in the convenience stores
owned or operated by SEVEN-ELEVEN and the stores of the IY GROUP in the
TERRITORY. ATF hereby agrees to act as such vendor.
(4) B&J hereby agrees that all transactions with SEVEN-ELEVEN and the
stores of the IY GROUP will be executed through TOWER and ATF; however,
SEVEN-ELEVEN will be ultimately responsible for TOWER'S and ATF'S
actions and/or nonactions hereunder.
Article 2. (PRODUCTS)
In this Agreement, PRODUCTS means ice cream in 120ml cups and ice cream
novelties (as described in Article 4, sub paragraph 4 and such other products as
may be mutually agreed to), including their packaging bearing the trademarks of
B&J (as defined in Article 12), manufactured by B&J in compliance with quality
and technical specifications agreed upon between SEVEN-ELEVEN and B&J, and
further within the range of reasonable allowances. All parties will not
unreasonably withhold their approvals to any modifications of the specifications
proposed or requested by the other party(ies). Under no circumstances will
TOWER, IY GROUP, SEVEN-ELEVEN or ATF modify the PRODUCTS in any way, or modify
the packaging of the PRODUCTS in any way, without the prior written consent of
B&J.
Article 3. (Term)
(1) The term of this Agreement shall begin on and from the date of this
Agreement and end on March 31, 1999, unless sooner terminated pursuant
to Article 13 hereof. SEVEN_ELEVEN agrees to use its best efforts to
purchase 10,000,000 units or more during the first year for resale in
convenience stores in the TERRITORY. Either party may terminate this
Agreement effective at the end of the term or any renewal term by
giving notice to the other of its intention not to continue this
Agreement three (3) months prior to the expiration the term or any
renewal thereof; failure to so timely notify by either party will
constitute an extension of the term for another one (1) year term.
(2) In the event of termination of this Agreement at the end of the
term or any renewal term, or any sooner termination for any reason, B&J
will be freed and discharged, and the other parties to this Agreement
hereby expressly release and discharge B&J of and from any and all
obligations or liability whatsoever, arising hereunder or in connection
with any manner or thing relating to, or in any manner connected with,
the subject matter of this Agreement. The foregoing right of
termination and the additional right of non-renewal at the end of the
stated term are absolute, and neither B&J nor the other parties to this
Agreement will be liable to the other because of termination or
non-renewal hereof (whether with or without cause) for compensation,
reimbursement, or damages on account of the loss of prospective profits
on anticipated sales, or on account of expenditures, investments,
leases or commitments in connection with the business or good will of
B&J or the Japanese parties to this Agreement, or for any other reason
whatsoever. Nothing herein is intended to relieve any party from any
obligation to pay any unpaid balances for PRODUCTS ordered or shipped
hereunder prior to termination or expiration, unless such termination
or expiration is not caused by B&J.
(3) Pursuant to the provisions of Article 3 Paragraph 1, the
termination of this Agreement will operate as a cancellation, as of the
date thereof, of all orders that have not been prepared by B&J for
shipment, and thereafter B&J will have no obligation with respect to
orders so cancelled.
Article 4. (Test Market)
(1) The parties intend to launch the sale of the PRODUCTS in Japan in
April 1998. Such launch date may be adjusted by mutual agreement of the
parties, but the parties agree to use their respective best efforts to
insure that the launch date is not unduly delayed.
(2) The parties will commence a Test Market study on or about January
5, 1998. The Test Market will consist of five different product items
or stock keeping units, with 2,000 units of PRODUCTS for each product
item, or 10,000 total units of PRODUCTS. The parties will jointly
decide which of SEVEN-ELEVEN's convenience stores will participate in
the Test Market and the appropriate retail price points for the
PRODUCTS in the Test Market.
(3) All Test Market data will be shared by SEVEN-ELEVEN with B&J.
(4) The Test Market flavors mutually agreed upon by the parties are (i)
Banana Chocolate Walnut, (ii) Vanilla & Nuts, (iii) Chocolate Brownie
Walnut, (iv) Coffee Chocolate Chunk and (v) Vanilla & Peaches.
(5) B&J has supplied SEVEN-ELEVEN with thirty (30) units of each of the
listed five flavors for internal testing.
(6) SEVEN-ELEVEN will conduct the Test Market in an efficient manner so
as to maximize the amount of useful information obtained from the Test
Market.
Article 5. (Purchase Transactions)
(1) After the Test Market, SEVEN-ELEVEN will give B&J and TOWER its
(SEVEN-ELEVEN'S) sales-plan of PRODUCTS by items. By no later than
February 6, 1998 SEVEN-ELEVEN will give B&J the first 90 day rolling
forecast for the 3 months beginning March 1, 1998. B&J will supply the
form and requirements for the rolling forecast. The first 60 days of
the forecast are non-cancelable and nonrescheduleable and the last 30
days of the forecast are non-cancelable but are rescheduleable. The
forecast will be updated each month beginning on April l, 1998 and will
be provided to B&J by the first Monday of each month. However, in the
event SEVEN-ELEVEN and/or ATF request for the increase of the ordered
quantity, B&J will use its best efforts to provide these quantities.
TOWER will place corresponding firm orders for the PRODUCTS in
individual purchase orders between B&J and TOWER.
(2) The individual contracts of sale will become effective when the
written acceptance from B&J of the purchase order is issued by B&J.
(3) Delivery of all PRODUCTS to TOWER by B&J will be made on ex.
factory and / or ex distribution center basis at B&J's factory(ies) in
Vermont in the United States. Upon delivery to the shipper at B&J's
factory(ies) in Vermont, title to and all risks of loss or damage to
the PRODUCTS will pass to TOWER from B&J. Heat damage or other damage
caused by the shippers or occurring during shipment will be the sole
responsibility of TOWER and SEVEN-ELEVEN, and B&J will have no
responsibility therefor. SEVEN-ELEVEN has notified B&J that
SEVEN-ELEVEN has selected the firm of Itochu International Inc. of Los
Angeles, California to be SEVEN-ELEVEN's exclusive agent to ship the
PRODUCTS from Vermont to Japan.
(4) All costs of transporting, shipping and importing the PRODUCTS into
Japan, including any taxes, insurance premiums or costs, customs
duties, tariffs or other impositions, will be borne solely by TOWER and
SEVEN-ELEVEN.
(5) The items, prices and other specifications of each transaction
between B&J and TOWER will be as agreed upon by B&J and TOWER, subject
to the terms and conditions of this Agreement. SEVEN-ELEVEN may provide
information and suggestions to TOWER or B&J regarding items, prices and
other specifications relating to the sale of PRODUCTS under this
Agreement.
Article 6. (Price and Payment)
(1) Prices applicable to any orders for PRODUCTS to be placed by TOWER
to B&J will be quoted in U.S. dollars. Payments for the PRODUCTS will
be in U.S. dollars. The parties mutually agree that the purchase price
of the PRODUCTS is US$0.61 per unit. This purchase price is predicated
on the Japanese Yen / US $ exchange rate being Y120 / US$1. The price
of $0.61 per unit will remain fixed up to Y126 and down to Y114. In the
event the Japanese Yen / US$ exchange rate fluctuates 10% above Y126 or
10% below Y114 then the parties agree to share (50%/50%) the said 10%.
Said purchase price will be subject to adjustment as provided for
below. If the fluctuation is more than 10% in either direction then the
parties agree to meet to discuss a mutually acceptable purchase price.
The US$0.61 constitutes the initial price.
(2) The price will be subject to review by the parties every six
months beginning September 1, 1998. If the parties cannot agree upon an
amendment to the price, then B&J will have no obligation to ship any
orders until the parties have mutually agreed upon the price for the
items in that order or upon renewing or amending the existing price.
(3) Payment by TOWER to B&J will be made by means of irrevocable
commercial letter of credit established by TOWER in a form reasonably
acceptable to B&J. This irrevocable commercial
letter of credit will be payable at sight and be from a bank reasonably
acceptable to B&J. The letter of credit shall be in United States
dollars and in an amount equal to the purchase price of the PRODUCTS
ordered by SEVEN-ELEVEN and accepted by B&J. All associated charges are
for TOWER'S account. Each letter of credit will be opened and delivered
to B&J at the time the corresponding purchase order is placed with B&J.
(4) The parties have agreed that the Test Market purchase price for the
PRODUCTS will be sixty-one cents (US$0.61) per unit. The parties agreed
to equally (50%/50%) share the cost of the Test Market PRODUCTS
(US$0.61) and, air fares to ship the Test Market PRODUCTS to Japan.
Article 7. (Restrictions on Sale of PRODUCTS)
(1) If the Test Market is successful (as mutually agreed to by both
parties) and the launch date is in April, 1998, B&J agrees that it will
not sell the originally selected PRODUCTS items to any other
convenience store operator in the TERRITORY for a period of six (6)
months from the launch date.
(2) SEVEN-ELEVEN will have the right to ask B&J to extend the
exclusivity on the originally selected PRODUCTS in the convenience
store channel of distribution for an additional six (6) months only
provided that: (i) SEVEN-ELEVEN gives B&J notice of such intent no
later than sixty (60) days before the end of the first six (6) months'
period following the launch date, and (ii) the parties agree to a
minimum quantity guarantee of the purchase of specific units by
SEVEN-ELEVEN.
(3) SEVEN-ELEVEN agrees that all of IY GROUPS's requirements for the
PRODUCTS will be bought directly from B&J.
(4) TOWER will not sell the PRODUCTS to any third party or vendor other
than ATF, and ATF will act as the vendor of the PRODUCTS for IY GROUP
pursuant to Article 1, and shall not sell the PRODUCTS to any third
party except as specifically provided in this Agreement. SEVEN-ELEVEN
and IY GROUP will purchase the PRODUCTS only through ATF. Neither
SEVEN- ELEVEN nor TOWER nor ATF will export PRODUCTS outside of the
TERRITORY and said parties are expressly prohibited from soliciting
sales for the PRODUCTS outside of the TERRITORY. Said parties agree
that they will not distribute any PRODUCTS to any party or in any
manner dispose of any PRODUCT under circumstances where they know, or
in the exercise of prudent business judgment should know, that such
activity ultimately will result in the exporting of such PRODUCTS
outside the TERRITORY. This Agreement permits SEVEN-ELEVEN to
distribute the PRODUCTS only through its convenience stores, which are
owned by SEVEN-ELEVEN and/or operated by third parties under license
from SEVEN-ELEVEN and the outlets of the IY GROUP. This Agreement does
not permit any other distribution under any other channel of
distribution in the TERRITORY.
(5) SEVEN-ELEVEN will sell and distribute the PRODUCTS only for resale
through the SEVEN-ELEVEN convenience stores and IY GROUP oulets in the
TERRITORY.
Article 8. (Business Secrecy)
(1) Each of the parties will not divulge or disclose to a third party
or parties any and all matters and information of a confidential nature
related to the terms of this Agreement, the Test Market, the business
transactions and the PRODUCTS, which have come to its knowledge through
transactions under this Agreement, including those which were known to
the respective parties at the time of the signing of this Agreement.
The provisions of this paragraph do not apply to matters or information
which are in the public domain and which any party otherwise procures
lawfully from other sources and has the right to disclose to other
parties.
(2) The obligations undertaken by the parties hereto pursuant to
Article 8(1) will survive termination of this Agreement and will remain
in effect and be binding on the parties hereto indefinitely after
termination of this Agreement.
Article 9. (Marketing)
(1) TOWER, SEVEN-ELEVEN and ATF agree to use their respective best
efforts to vigorously promote and achieve maximum sales of the PRODUCTS
in the TERRITORY and will use their best efforts to exploit and
service, and sell the maximum amount of PRODUCTS through SEVEN-ELEVEN's
convenience store and IY GROUP outlets in the TERRITORY.
(2) TOWER, SEVEN-ELEVEN and ATF will be responsible, at their own sole
expense and cost, to design, manufacture and place all point of
purchase displays and advertising materials for promotion of the
PRODUCTS in the SEVEN-ELEVEN convenience stores and IY GROUP outlets
located in the TERRITORY. All advertising, brochures, displays and
other marketing literature in any way relating to the PRODUCTS or using
the B&J MARKS will be subject to the prior written approval of B&J,
both with respect to copy and mode of use.
(3) SEVEN-ELEVEN and B&J will review annually the selection of PRODUCT
items and may mutually agree on substituting one or more new PRODUCT
items for the PRODUCT items designated in this Agreement.
(4) B&J will use its best efforts, subject to force majeure, to
manufacture sufficient quantities of the PRODUCTS, in accordance with
the mutually agreed specifications, to satisfy the market demands and
purchase requirements of the SEVEN-ELEVEN convenience stores and IY
GROUP outlets in the TERRITORY, as indicated to TOWER and B&J by
SEVEN-ELEVEN and ATF.
(5) B&J will be responsible for building of the B&J brand image and
awareness of PRODUCTS in the TERRITORY, either directly or through an
agent of B&J's choice.
(6) The parties acknowledge that B&J intends to distribute or license
for distribution its products, bearing or using the
B&J MARKS, in the TERRITORY through third parties. TOWER, IY GROUP,
SEVEN-ELEVEN and ATF acknowledge that they have no exclusivity of any
kind, other than as specifically described in Article 7 of this
Agreement.
Articie 10. (Notices)
(1) Any notice between B&J and other Japanese parties in reference to
this Agreement shall be in writing in the English language.
(2) All notices, requests or other communications required or permitted
to be given hereunder shall be in writing and shall be sent by mail,
facsimile or e-mail to the other parties at their addresses set forth
below or to such other addresses as may from time to time be notified
by one party to the others. Any such notice, agreement or consent
dispatched by facsimile or e-mail shall be confirmed by registered mail
or any reliable courier service return receipt required.
To: SEVEN-ELEVEN
SEVEN-ELEVEN JAPAN Co., Ltd.
0-0 Xxxxxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000 Xxxxx
Phone: 0-0000-0000
Facsimile: 0-0000-0000
E-mail:
To: XXXXX
XXXXX XXXXXXXXXX Xxxxxxxxxxx
0X XXXXXX SUN CREST Xxxx.
00-0 Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000 Xxxxx
Phone: 0-0000-0000
Facsimile: 0-0000-0000
E-mail:
To: ATF
ATF Corporation 6F AOYAMA SUN CREST Xxxx.
00-0 Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000 Xxxxx
Phone: 0-0000-0000
Facsimile: 0-0000-0000
E-mail:
To:B&J
BEN & JERRY'S HOMEMADE, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxx 00000-0000 X.X.X.
Phone: 000-000-0000
Facsimile: 000-000-0000
E-mail:
(3) All notices shall be deemed to have been given when duly
transmitted by facsimile or e-mail, or delivered by mail.
Article 11. (Warranty)
(1) B&J warrants that the PRODUCTS will comply with quality and
technical specifications agreed upon among the parties to this
Agreement at the time such PRODUCTS are delivered to the shipper
ex-works of B&J in Vermont. If TOWER discovers a failure of the
PRODUCTS to meet such specifications and notifies B&J within sixty (60)
days after arrival of the PRODUCTS in Japan, then B&J, after confirming
such defect or failure was a result of a manufacturing defect, shall at
its own expense reimburse TOWER for the cost of the defective PRODUCTS,
or deliver replacement PRODUCTS, according to the request of TOWER,
unless such failure to meet such specifications was caused by the
negligence or other act of TOWER, IY GROUP, ATF, SEVEN-ELEVEN or any
transporter and/or other third party after delivery to the shipper in
Vermont. Notwithstanding the foregoing, TOWER retains the right to ask
B&J to replace PRODUCTS at cost, which contain foreign articles even
after the above 60 days.
(2) If any claim is made or any suit or action is instituted against
TOWER and/or IY GROUP in regard with the Product Liability or the
"Imperfection-based Liability" described in the Japanese Civil Code
No.570, B&J shall cooperate in the defense and the settlement of such
claim, suit or action. B&J will at its own expense indemnify and hold
harmless TOWER and IY GROUP from and against any and all losses,
damages, claims and related cost (including reasonable attorney's fees)
arising out of the defective manufacture of the PRODUCT unless such
claim, suit or action arises from the negligence or other act of TOWER,
IY GROUP, ATF, SEVEN-ELEVEN or any transporter and/or other third party
after delivery to the shipper in Vermont, in which case TOWER and IY
GROUP will at their own expense indemnify and hold harmless B&J from
and against any and all losses, damages, claims and related cost
(including reasonable attorney's fees).
(3) The obligations of the parties in this Article 11 will survive
cancellation, termination, rescission or expiration of this Agreement.
Article 12. (Trademarks and Other Rights)
(1) B&J represents and warrants that its current and future trademarks,
designs, logo-marks and other industrial property rights (as described
in Annex 3 and hereinafter collectively called "B&J MARKS") are and
will be legal for TOWER to use in the TERRITORY in connection with the
sale and distribution of the PRODUCTS during the term of this
Agreement, and TOWER, to the best of B&J's knowledge and belief, is
free from any infringement of patent, design, trademark, copyright or
other industrial property right of any third party. Annex 3 will be
modified from time to time by B&J upon the creation and/or registration
of new or current B&J MARKS. Notwithstanding the foregoing, nothing
herein shall be construed as granting to the Japanese parties to this
Agreement a license to use the B&J MARKS or any other trademarks or
trade names of B&J.
(2) B&J will at its own expense register and hold all legal rights of
and to the B&J MARKS. TOWER and SEVEN-ELEVEN will
cooperate with B&J to protect and defend the B&J MARKS in accordance
with any request from B&J. TOWER, IY GROUP, SEVEN-ELEVEN and ATF
acknowledge that B&J is the sole owner of the B&J MARKS, that they will
not use or claim any rights in the B&J MARKS, except for the purpose of
the sale, promotion and distribution of the PRODUCTS as permitted in
this Agreement, and that they will not license, sublicense or register
the B&J MARKS in the TERRITORY or any other location or jurisdiction.
(3) The B&J MARKS will not be used by TOWER, IY GROUP, SEVEN-ELEVEN
and/or ATF in any manner with any products of any nature manufactured
or sold by or on behalf of TOWER, IY GROUP, SEVEN-ELEVEN and/or ATF,
except for the PRODUCTS manufactured by B&J and sold to TOWER and
SEVEN-ELEVEN under this Agreement.
(4) Whether or not B&J succeeds in obtaining registrations of any or
all of the B&J MARKS in the TERRITORY, all of the other parties to this
Agreement acknowledge B&J's proprietary rights therein and undertake
not to do anything, during or after the term of this Agreement, which
could adversely affect such proprietary rights or the distinctiveness
of the aforesaid trademarks. TOWER, IY GROUP, SEVEN-ELEVEN and ATF
agree that they will not use or display the B&J MARKS in product
literature, or in connection with the sale, promotion or distribution
of the PRODUCTS at trade shows or elsewhere, or in any other manner,
which has not received the prior written approval of B&J.
(5) If TOWER and/or SEVEN-ELEVEN discover any infringement or improper
use of the B&J MARKS, TOWER and SEVEN-ELEVEN will give prompt notice to
B&J of such infringement or improper use.
(6) The right of TOWER, ATF and/or IY GROUP to sell, promote and
distribute the PRODUCTS under this Agreement, using the B&J MARKS as
permitted under this Agreement, will survive the cancellation,
termination, rescission or expiration of this Agreement for a period of
time not to exceed one hundred eighty (180) days after such
cancellation, termination, rescission or expiration until the PRODUCTS
purchased from B&J and remaining in stock of TOWER, ATF and/or IY GROUP
are sold out.
Article 13. (Termination)
(1) B&J may terminate this Agreement by giving a written notice to
TOWER in the event:
i) if TOWER, IY GROUP, ATF or SEVEN-ELEVEN becomes
insolvent or any voluntary or involuntary petition
in bankruptcy or for corporate reorganization is
filed by or against any such party, or a receiver
is appointed with respect to any of the assets of
any such party, or liquidation proceedings are
commenced by or against any such party; or
ii) if any such party defaults in any of the
provisions of this Agreement and does not remedy
the default within thirty (30) days after a
written notice is given requesting that the
default be remedied.
(2) TOWER or SEVEN-ELEVEN may terminate this Agreement by giving a
written notice to B&J in the event:
i)if B&J becomes insolvent or any voluntary or
involuntary petition in bankruptcy or for
corporate reorganization is filed by or against
B&J, or a receiver is appointed with respect to
any of the assets of B&J, or liquidation
proceedings are commenced by or against B&J; or
ii) if B&J defaults in any of the provisions of
this Agreement and does not remedy the default
within thirty (30) days after a written notice is
given requesting that the default be remedied.
Article 14. (Assignment)
No party to this Agreement will assign, pledge or otherwise dispose of its
rights, or delegate its duties, under this Agreement without the prior written
consent of the other parties to this Agreement.
Article 15. (Other provisions)
(1) This Agreement constitutes the entire agreement in respect of the
business hereby contemplated by and among the parties hereto, and
supersedes all previous agreements, negotiations and commitments in
respect thereto. This Agreement will be binding on affiliates of TOWER,
SEVEN-ELEVEN and ATF.
(2) The failure of any party hereto to enforce any of the provisions of
this Agreement or to exercise any right hereunder shall not constitute
a waiver of the same or prejudice its right to enforce the same
thereafter.
(3) No party will be in default under this Agreement by reason of its
delay in the performance of or failure to perform any of its
obligations hereunder if the delay or failure is caused by strikes,
acts of God or the public enemy, riots, incendiaries, interference by
civil or military authorities, compliance with governmental laws, rules
or regulations, delays in transit or delivery, inability to secure
governmental priorities for materials, or any fault beyond its control
or without its fault or negligence.
(4) The relationship between B&J and the other parties to this
Agreement is that of Licensor/vendor and Licensee/vendee. Under no
circumstances will TOWER, SEVEN-ELEVEN or ATF be deemed to be agents or
representatives of B&J, nor will any of them have the right to enter
into any contracts or commitments in the name of B&J or otherwise to
bind or commit B&J.
(5) This Agreement will be modified only by mutual consent in writing
of subsequent date signed by the duly authorized representatives of
each party to this Agreement.
(6) TOWER and SEVEN-ELEVEN will obtain any and all approvals, licenses,
FTC (Japan) approvals or consents, and satisfy any and all other legal
requirements to enter into this Agreement, import and transport the
PRODUCTS into the TERRITORY, and sell, promote and distribute the
PRODUCTS in the TERRITORY as provided for or contemplated in this
Agreement.
(7) The English language shall govern this Agreement, and will be used
in any legal or dispute resolution proceedings among the parties
relating to this Agreement.
(8) All disputes arising from the signing of or in connection with this
Agreement will be settled by negotiations of the parties during a
period of thirty (30) days after such dispute arises. If the parties
cannot reach a negotiated settlement within such thirty-day period,
then all disputes, differences, or questions between any of the parties
concerning the construction, interpretation and effect of this
Agreement or any clause in this Agreement, or the rights and
liabilities of the parties, will be settled by binding arbitration.
Either party may send to the other party a notice asking for
arbitration and appointing its arbitrator. Within one (1) month, the
other party or parties will indicate the name of its own arbitrator,
failing which, an arbitrator will be appointed by the President of the
respective arbitration associations. The two arbitrators so appointed
will meet within one (1) month after the appointment of the last
arbitrator. If they do not agree as to their decision, they will choose
a third arbitrator, and if they do not agree within one (1) month on
the choice of that arbitrator, the third arbitrator will be appointed
by the President of the respective arbitration associations. The
decision will be made by a majority of the arbitrators. The arbitration
will take place in New York, New York (U.S.A.), in cases where such
disputes are initiated against B&J and in Tokyo, Japan when such
disputes are initiated against those parties in Japan. If the
arbitration takes place in New York, the American Arbitration
Association rules and procedures will be used and if the arbitration
takes place in Tokyo, the Japan Commercial Arbitration Association
rules and procedures will be used. In either case the laws of the Sate
of Vermont and/or the United States will be used in reaching a
decision. The decision of the arbitrators will be final. The
arbitrators will attempt to avoid a general hearing. The parties agree
that each party shall bear the expense of its own arbitrator, and that
the parties will split the expense of any third arbitrator. Legal
expenses of each party will be borne by that party, but the arbitrators
will have the discretion (but not the obligation) to award legal fees
to the prevailing party in the arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
quadruplicate on the day and year first above written.
BEN & JERRY'S HOMEMADE, INC. SEVEN-ELEVEN JAPAN CO., LTD.
/s/ Xxxxx X. Xxxx /s/ Xxxxxxxxx Xxxxx
CEO Senior Managing Director
---------------------------- ----------------------------
TOWER ENTERPRISE CORPORATION ATF CO. LTD.
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxx
President General Manager
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ANNEX 1
As ANNEX I to the "Importation and Marketing Agreement" dated December 19, 1997,
wherein the Parties describe the "IY GROUP" as follows:
Seven-Eleven Japan Co., Ltd. (Convenience Store)
Ito-Yokado Co., Ltd. (Superstore)
Xxxxxxxx'x Japan Co., Ltd. (Department Store)
York Mart Co., Ltd. (Supermarket)
York-Benimaru Co., Ltd. (Supermarket)
Xxxxx'x Japan Co., Ltd. (Restaurant)
York Xxxxxx Co., Ltd. (Quick Serve Restaurant)
This Annex 1 is executed this day of December 19, 1997.
BEN & JERRY'S HOMEMADE, INC. SEVEN-ELEVEN JAPAN CO., LTD.
/s/ Xxxxx X. Xxxx /s/ Xxxxxxxxx Xxxxx
CEO Senior Managing Director
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TOWER ENTERPRISE CORPORATION ATF CO. LTD.
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxx
President General Manager
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