DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT made as of the 4 th day of June, 2001.
BETWEEN:
EVERBLOOM HEALTH FOOD (PTE) LTD., a corporation incorporated under the xxxxx x-x
Country of Singapore and having its head office at 00 Xxxxxxx Xxxx Xxxxx # 00-0
Xxx Xxxxxx Xxxxxxxxx Science Park Singapore 118225,
(hereinafter referred to as the "Corporation")
and
EVERBLOOM BIOTECHNOLOGY (CANLLDA) LTD. a corporation incorporated under the laws
of the Province of Ontario, Canada, and having its registered office at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0,
(hereinafter referred to as the "Distributor")
WHEREAS the Corporation has acquired the exclusive licence and rights from
Everbloom Biotechnology (PTE) Ltd. to use the trademarks and scientific
formulations, developed by Everbloom Biotechnology (PTE) Ltd. Shiitake mushrooms
and other exotic, edible and medicinal mushrooms.
WHEREAS the Corporation is in the business of licencing, distributing and
manufacturing a variety of products made from Shiitake mushrooms and other
exotic, edible and medicinal mushrooms as more particularly described in
Schedule "A" attached hereto (the "Products");
AND WHEREAS subject to the terms and conditions hereinafter set out, the
Corporation is willing to grant to the Distributor the exclusive rights to sell
and distribute the Products and to utilize the trademarks currently registered
in the name of and owned by the Corporation throughout the United States, Mexico
and Canada (the "Territory");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements of the parties contained herein, the sum of one dollar
paid by each party hereto to each of the other parties hereto and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto) it is agreed as follows:
1. The Corporation hereby grants to the Distributor subject to the terms and
conditions contained herein, the exclusive right and licence to market,
distribute and sell the Products throughout the Territory.
2. Orders by the Distributor for the Corporation's Products shall be made, in
writing and delivered via facsimile and/or e-mail to the Corporation at 12
Science Park Drive # 00-0 Xxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx
000000.
3. The Corporation shall sell to the Distributor the Product's so ordered at
the prices as set out in Schedule "B" attached hereto. Said prices are
subject to change from time to time upon ten (10) days prior written notice
of such change being provided to the Distributor by the Corporation.
4. The Distributor agrees to pay for the Products ordered by establishment of
an irrevocable Letter of Credit the terms and conditions of which shall be
mutually agreed upon from time to time.
5. All Products ordered by the Distributor shall be delivered by the
Corporation to the Distributor's port of landing in Canada or U.S.A as
designated by the Distributor. The Corporation shall supply the Distributor
with all of the Products requested on a timely basis but in any event
within twelve (12) weeks from the date on which the order was received by
the Corporation. All Products delivered shall have a shelf life of at least
twenty-four (24) months from the date of the order.
6. The term of this Agreement shall be for five (5) years commencing on July
2, 2001 and ending on June 30, 2006 unless otherwise terminated in
accordance with Section 15 of this Agreement. This term may be renewed for
an additional five (5;) year period upon mutual written agreement between
the Corporation and the Distributor.
7. The Corporation represents and warrants to the Distributor that:
a. the Corporation has been granted the exclusive rights to manufacture
and sell the Products;
b. the Corporation has been granted the exclusive rights to use and
authorize the use of the trademarks "EVERBLOOM" AND "LINZIR" as well
as the rights to exploit the formulas developed by Everbloom
Biotechnology (PTE) Ltd. so that may manufacture the Products; and
c. all Products delivered to the Distributor shall be pure and wholesome,
fit for the purpose intended, merchantable, and free from all defects.
8. In the event that the Products (or a portion thereof) shipped to the
Distributor by the Corporation are broken, spoiled or otherwise deficient
in quality, the Corporation shall replace, at its own expense any and all
broken, spoiled or deficient Products delivered to the Distributor within
thirty (30) days. In addition, the Corporation shall reimburse the
Distributor for its cost of collecting and Products found to be spoiled or
deficient and either destroying such Products or returning the Products to
the Corporation, at the Distributor's option.
9. The Corporation shall indemnify and hold the Distributor harmless from and
against any and all claims, suits, demands, actions, costs, liabilities,
losses and expenses of any kind whatsoever, including but not limited to,
injury to person (including death) or property, including reasonable
attorney's fees, arising out of, resulting from or otherwise connected with
any allegation of:
a. harm, injury, damage or loss arising out of or in connection with consumer
use or consumption of the Products;
b. the defective manufacture, bottling or packaging of the Products;
c. any negligent act, misfeasance or nonfeasance by the Corporation;
d. any breach by the Corporation of its representations, warranties and
covenants as set out in this Agreement;
e. any wrongful or misleading claim, advertising or representation by the
Corporation or by any agent of the Corporation regarding the Products;
f. any claim or action by a person not a party to this Agreement with respect
to the Distributor's use of the trademarks "EVERBLOOM" and "LINZIR";
g. any person or entity claiming that such person or entity has any right,
claim or colour of right granted or allowed by the Corporation to purchase,
sell, market or distribute the Products in the Territory; and
h. the Corporation's failure to comply with any other provisions of this
Agreement.
At the request of the Distributor, the Corporation will defend any of the
foregoing claims, suits, actions or proceedings by any person, firm or
corporation against the Distributor.
10. The Corporation shall obtain and maintain, and will maintain at all times
during the term of this Agreement, at its own expense, comprehensive
general liability insurance and Products liability insurance in an amount
of not less than $5,000,000.00 per occurrence in respect of bodily injury
and $1,000,000.00 per occurrence of property damage, which limits shall be
increased from time to time upon the Distributors reasonable demand. The
Corporation shall, at its own expense, add the Distributor as an additional
insured to such insurance policies. The Corporation agrees to provide the
Distributor with a certificate of insurance evidencing such insurance
coverage.
11. The Distributor shall at all times during the continuance of this Agreement
offer for sale and sell the Products as goods manufactured by the
Corporation (or its licensees) and according to the specifications supplied
by the Corporation to the Distributor from time to time either generally or
in any particular case and shall not make any representation or give any
warranty in respect of the Products other than those contained in the
Corporation's conditions of sale.
12. The Distributor shall sell the Products in the same condition as they are
received by it and shall not alter, remove or in any way tamper with any of
the Corporation's marks or numbers on the Products except that the
Distributor shall have the right to attach to the Products by means of a
plate label or by suitable means bearing their name and address and
indicating that they are the suppliers of the Products and are authorized
Distributor for the Corporation. In addition, the Distributor is permitted
to alter or change any labeling of the Products to ensure compliance with
applicable labeling laws in the jurisdictions in which the Products are
sold. All such reasonable costs associated with these changes to
labeling/packaging shall be borne by the Distributor.
13. The Distributor further covenants and agrees that during its appointment as
exclusive Distributor it shall not sell or accept any appointment to sell
within the Territory other brands of Products of a similar nature which are
in competition with the Corporation' s.
14. The Corporation and the Distributor understand and agree that each is an
independent principal and not an agent, employee, partner or joint venturer
of the other in the performance of this Agreement, and neither of them nor
their agents shall in any way act, or undertake to act, on behalf of, or
hold itself out as, the agent of the other party without the express
written consent thereto of such other party.
15. The Corporation shall have the option to terminate this Agreement where:
i. the Distributor is liquidated, dissolved or becomes insolvent or
bankrupt or is placed under judicial management or the control to
receivers or trustees;
ii. the Distributor fails to comply substantially with any of the
requirements imposed upon it by the Agreement and shall fail to cure
said breach within thirty (30) days after receipt by the Distributor
of written notice from the Corporation specifying in detail the nature
of such breach; or
iii. the parties agree that the Distributor has the.capability of
economically manufacturing and producing for sale the Products in
sufficient quantities so as to meet the demand.
16. Upon termination or expiration of this Agreement the following shall apply:
a. the Distributor shall immediately cease distributing the Products;
b. all indebtedness of the Distributor to the Corporation shall become
due and payable, if not already due and payable on the date of
termination or expiration;
c. the rights of either party against the other party which may have
accrued up to the date of such termination or expiration shall remain
unaffected except as provided hereafter;
d. neither party will be liable to the other for damages, indemnity or
compensation solely on account of termination or expiration of this
Agreement, with or without cause, as provided herein, whether such
damages, indemnity or compensation might be claimed for loss through
commitments on obligations or leases, loss of investment, loss or
present or prospective profits, loss of goodwill, or any other loss
caused by termination or expiration of this agreement as provided
herein.
e. all orders which have not been shipped to the Distributor as of the
date of termination, even if previously accepted, shall be canceled
without liability to either party.
f. the Distributor shall return to the Corporation all current unused
promotional or other materials relating to the sale of Products and
any and all other property of the Corporation in the possession or
control of the Distributor.
17. All notices or other communication to the Distributor contemplated by the
terms of this Agreement shall be in writing and sent by facsimile and
registered mail, addressed to Everbloom Biotechnology (Canada) Ltd. at:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0,
Fax: (000) 000-0000
or such other address as the Distributor shall designate in writing.
All notices or other communication to the Corporation contemplated by the terms
of this Agreement shall be in writing and sent by facsimile and registered mail,
return receipt request, addressed to Everbloom Health Food (PTE) Ltd. at:
00 Xxxxxxx Xxxx Xxxxx # 00-0 The Mendel Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Fax: (00) 000-0000
or such other address as the Corporation shall designate in writing. If by
registered mail, any notice shall be deemed to have been given when received, or
if by facsimile, when the appropriate confirmation is received
18. Unless otherwise provided for herein, all monetary amounts referred to
herein shall refer to the lawful money of the United States of America.
19. The Distributor may, with the prior written consent of the Corporation,
such consent not to be unreasonably withheld, enter into sub-distribution
agreements to market and distribute the Products within the Territory only
in accordance with the provisions of this Agreement.
20. The Distributor shall not be entitled at any time to assign this Agreement
or any part hereof except with the previous written consent of the
Corporation such consent not to be unreasonably withheld.
21. Time shall be of the essence of this Agreement and of every part hereof and
no extension or variation of this Agreement shall operate as a waiver of
this provision.
22. This Agreement constitutes the entire Agreement between the Parties with
respect to all of the matters herein and its execution has not been induced
by, nor do any of the parties rely upon or regard as material, any
representations or writings whatever not incorporated herein and made a
part hereof and may not be amended or modified in any respect except by
written instrument signed by the parties hereto. Any schedules referred to
herein are incorporated herein by reference and form part of the Agreement.
23. The parties shall sign such further and other documents, cause such
meetings to be held, resolutions passed and by-laws enacted, exercise their
vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order
to give full effect to this agreement and every part thereof.
24. This Agreement shall enure to the benefit of and be binding upon the
parties and their respective successors and assigns.
25. No omission or delay on the part of any Party in exercising its rights
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by any Party of any such right preclude the
further or other exercise thereof or the exercise of any other right which
it may have. Failure of either Party to require performance by the other
party of any provision hereof shall in no way affect the full right to
require such performance at anytime thereafter. Nor shall the waiver by
either party of a breach of any provision hereof be taken or held to be a
waiver of any succeeding breach of such provision or as a waiver of the
provision itself.
26. If any Article, Section or any portion of any Section of this Agreement is
determined to be unenforceable or invalid for any reason whatsoever that
unenforceability or invalidity shall not affect the enforceability or
validity of the remaining portions of this Agreement and such unenforceable
or invalid Article, Section or portion thereof shall be severed from the
remainder of this Agreement.
27. This Agreement shall be governed by and construed in accordance with the
laws of the Republic of Singapore and the Parties agree to submit to the
non-exclusive jurisdiction of the courts of the Republic of Singapore.
28. The parties shall sign such further and other documents, cause such
meetings to be held, resolutions passed and by-laws enacted, exercise their
vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order
to give full effect to this agreement and every part thereof.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the
date and year written above.
EVER.BLOOM HEALTH FOOD (PTE) LTD.
Per:
Authorized Signing Officer
EVERBLOOM BIOTECHNOLOGY (CANADA) LTD.
Per:
Authorized Signing Officer
