EXHIBIT 10.4
EXCLUSIVITY CONTRACT
DATE: MAY 15, 1995
BETWEEN: JJAMP TREASURY INTERNATIONAL CORP.,
0000 XXXXX XXX XXXX XXXX 00
XXXXX XXXX, XXXXXXX X0X-0XX
AND: TADIRAN ELECTRONIC INDUSTRIES INC.
IT IS MUTUALLY AGREED BETWEEN JJAMP TREASURY INTERNATIONAL CORP., HEREINAFTER
CALLED "THE AGENT" AND TADIRAN ELECTRONICS INC. CALLED "THE SUPPLIERS", THAT:
1. THE SUPPLIERS HEREBY APPOINTS THE AGENT, AND THE AGENT HEREBY AGREES TO ACT
FOR THE SUPPLIERS, AS EXCLUSIVE AND SOLE DISTRIBUTOR FOR THE SALE OF ITS
CIVILIAN ALKALINE BATTERIES, THAT CAN BE SOLD IN THE AGENT'S TERRITORY.
2. THE TERRITORY COVERED BY THIS AGREEMENT WILL BE BRAZIL, ARGENTINA AND ANY
OTHER TERRITORIES MUTUALLY ACCEPTED BY BOTH PARTIES.
3. THIS AGREEMENT IS EFFECTIVE FOR 24 MONTHS FROM DATE OF THIS AGREEMENT AND
MAY BE CANCELLED BY EITHER PARTY UPON 60 DAYS WRITTEN NOTICE. THIS AGREEMENT
HOWEVER, BECOMES AUTOMATICALLY RENEWABLE AT ITS ANNIVERSARY, IF STILL IN EFFECT.
4. FURTHER, IN THE EVENT OF TERMINATION SHOULD THE SUPPLIERS NEED TO APPOINT
ANOTHER AGENT OR REPRESENTATIVE IN THE TERRITORY TO SERVICE THE EXISTING
CONTRACTS INITIATED BY THE AGENT, THEN THE ARRANGEMENTS AFORMENTIONED SHALL BE
RENEGOTIATED TO THE MUTUAL SATISFACTION OF BOTH PARTIES (AGENT AND SUPPLIERS AND
IN ACCORDANCE WITH GOOD FAITH).
5. AGENT EXPENSES
AGENT WILL PAY ALL OF ITS OWN EXPENSES AND THOSE OF ITS EMPLOYEES AND AGENTS AND
WILL PROVIDE ADEQUATE PERSONNEL AND INSURANCE INCLUDING, BUT NOT LIMITED TO,
PRODUCT LIABILITY INSURANCE. IN NO EVENT WILL TADIRAN BE LIABLE TO AGENT FOR ANY
PROFIT OR OTHER SUMS, AND AGENT'S PROFITS ON THE PRODUCTS WILL BE DERIVED SOLELY
FROM ITS XXXX-UP OF THE SALES PRICE.
6. DISCONTINUANCE OF PRODUCTION
TADIRAN RESERVES THE RIGHT IN ITS ABSOLUTE DISCRETION WITHOUT INCURRING ANY
LIABILITY TO AGENT WITH RESPECT TO ANY PURCHASE ORDER PLACED BY THE AGENT AND
APPROVED BY TADIRAN, OR OTHERWISE, TO DISCONTINUE ITS PRODUCTION, SALE AND
DISTRIBUTION OF ANY OF THE
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PRODUCTS OF SUCH DISCONTINUANCE. WHERE FEASIBLE HOWEVER TADIRAN WILL ENDEAVOUR
TO PROVIDE AGENT WITH ADVANCE NOTICE.
7. WARRANTY
TADIRAN GUARANTEES PRODUCTS AGAINST FAULTY MATERIALS OR WORKMANSHIP FOR A PERIOD
OF ONE YEAR FROM SHIPMENT; PROVIDED HOWEVER THAT SUCH WARRANTY SHALL NOT APPLY
IF PRODUCTS HAVE BEEN HANDLED OR STORED OTHER THAN IN ACCORDANCE WITH TADIRAN'S
STORAGE INSTRUCTIONS OR HAVE BEEN SUBJECTED TO MISUSE, NEGLECT, ACCIDENT OR
MODIFICATION. TADIRAN'S SOLE OBLIGATION UNDER THIS WARRANTY IS TO REPLACE THE
FAULTY PRODUCT OR CREDIT THE AGENT WITH THE ORIGINAL PURCHASE PRICE. RETURN
SHIPMENT OF THE FAULTY PRODUCT SHALL BE AT AGENT'S EXPENSE AND ONLY UPON
TADIRAN'S WRITTEN APPROVAL.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL,
WRITTEN, EXPRESS IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL TADIRAN BE LIABLE FOR DIREDT DAMAGES OR FOR BUSINESS EXPENSES, LOSS OF
PROFITS, INCIDENT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND
REGARDLESS OF WHETHER TADIRAN HAS BEEN ADVISED THEREOF IN ADVANCE.
AGENT IS NOT AUTHORIZED TO, AND SHALL NOT MAKE REPRESENTATION OR ASSUME FOR
TADIRAN ANY OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THE SALE OF THE
PRODUCTS. PRODUCTS SOLD, BUT NOT PRODUCED OR MANUFACTURED BY TADIRAN OR ITS
AFFILIATES, ARE WARRANTED ONLY INSOFAR AS, AND TO THE EXTENT THE WARRANTY OF THE
MANUFACTURER APPLIES.
8. RELATIONSHIP OF PARTIES
THERE SHALL BE NO EMPLOYER - EMPLOYEE RELATIONSHIP BETWEEN TADIRAN AND AGENT.
AGENT IS AN INDEPENDENT CONTRACTOR ACTING FOR ITS OWN ACCOUNT, AND ITS AGENTS
AND EMPLOYEES ARE IN NO WAY THE LEGAL REPRESENTATIVE OR AGENTS OF TADIRAN FOR
ANY PRUPOSE WHATSOEVER AND HAVE NO RIGHT OR AUTHORITY TO ASSUME OR CREATE, IN
WRITING OR OTHERWISE, ANY OBLIGATION OF ANY KIND, EXPRESS OR IMPLIED, IN THE
NAME OR ON BEHALF OF TADIRAN.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
INDEMNIFICATION: AGENT WILL INDEMNIFY TADIRAN IN RESPECT OF, AND HOLD TADIRAN
HARMLESS AGAINST, ALL CLAIM, AMOUNTS PAID IN SETTLEMENT, ATTORNEYS' FEES,
DISCOVERY AND LITIGATION COSTS, EXPENSES, LOSSES AND DAMAGES, HOWSOEVER CAUSED,
ARISING FROM (i) ANY CLAIM OF A THIRD PARTY THAT AGENT MISREPRESENTED ITS
AUTHORITY, OR MADE ANY CONTRACTUAL COMMITMENT NOT EXPRESSLY AUTHROIZED UNDER
THIS AGREEMENT, AND (ii) ANY ACT OR OMISSION OF AGENT, ITS EMPLOYEES, AGENTS,
REPRESNTATIVES OR OFFICERS. IF REQUESTED BY TADIRAN, AGENT AT ITS OWN EXPENSE,
WILL DEFEND ALL SUITS AND PROCEEDINGS THAT MAY BE INSTITUTED AGAINST TADIRAN IN
RESPECT OF ANY LIABILITY OR MATTER AS TO WHICH AGENT IS REQUIRED TO INDEMNIFY
TADIRAN UNDER THIS SECTION, AND WILL PAY ALL DAMAGES AND OTHER SUMS FINALLY
AWARDED AGAINST TADIRAN IN ANY SUCH SUIT OR PROCEEDING.
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10. LIMITATION OF LIABILITY
EXCEPT AS OTHERIWSE EXPRESSLY SET FORTH HEREIN, TADIRAN'S SOLE OBLIGATION UNDER
THIS AGREEMENT WILL BE TO SELL PRODUCTS TO AGENT ON THE TERMS AND CONDITIONS
PROVIDED FOR HEREIN. IN NO EVENT WILL TADIRAN BE LIABLE TO AGENT FOR ANY DIRECT
DAMAGES OR ANY BUSINESS EXPENSES, LOSS OF PROFITS OR INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED.
11. FORCE MAJEURE
BOTH PARTIES SHALL USE ALL EFFORTS TO PERFORM THEIR OBLIGATIONS UNDER THIS
AGREEMENT, BUT SHALL BE EXCUSED FOR FAILURE TO PEROFRM OR FOR DELAY IN
PERFORMANCE HEREUNDER DUE TO CAUSES BEYOND THE REASONABLE CONTROL OF EITHER,
INCLUDING THE INABILITY OF TADIRAN TO OBTAIN NECESSARY LABOUR MATERIALS. THUS,
PRODUCTS ARE ORDERED BY AGENT AND TADIRAN DOES NOT HAVE SUFFICIENT STOCK TO FILL
THE ORDER, OR FOR ANY REASON DEEMS THAT IT CANNOT FILL THE ORDER IN ITS USUAL
COURSE OF BUSINESS, TADIRAN MAY, AT ITS OPTION AND WITHOUT ANY LIABILITY (i) NOT
FILL THE ORDER, (ii) ALLOCATE PROUDCTS AS TO WHICH THERE IS A SHORTAGE AMONG ITS
AGENTS, CUSTOMERS AND AGENTS IN ANY REASONABLE MANNER, (iii) ACCEPT THE ORDER ON
SUCH CONDITIONS AS IT MAY DEEM APPROPRIATE. IF TADIRAN AGREES TO FILL THE ORDER,
BUT FOR ANY REASON BEYOND ITS REASONABLE CONTROL INCLUDING, WITHOUT LIMITATION,
INVENTOPRY SHROTAGES, WORK SLOWDOWNS OR STOPPAGES, IS UNABLE TO FILL THE ORDER
OR MAKE DELIVERY OF THE PRODUCTS ORDERD BY AGENT, TADIRAN WILL HAVE NO LIABILITY
TO DISTRIBUTE IN RESPECT OF SUCH ORDER.
12. TERMINATION
DURING THE INITIAL TERM OF THIS AGREEMENT OR ANY RENEWAL THEREOF, THIS AGREEMENT
MAY BE TERMINATED AS FOLLOWS:
(i) BY EITHER PARTY WITHOUT CAUSE OR LIABILITY (EXCEPT FOR OUTSTANDING ORDERS)
BY GIVING WRITTEN NOTICE OF TERMINATION TO THE OTHER PARTY NO LESS THAN 60 DAYS
PRIOR TO THE PROPOSED TERMINATION DATE;
(ii) BY EITHER PARTY, IMMEDIATELY ON WRITTEN NOTICE, IF (A) THE OTHER PARTY
SHALL BREACH ANY MATERIAL PROVISION HEREOF OF (B) THE OTHER PARTY CEASES TO
FUNCTION AS A GOING CONCERN, OR CEASES TO CONDUCT ITS BUSINESS IN THE NORMAL
COURSE, OR A RECEIVER IS APPOINTED OR APPLEID FOR WITH RESPECT TO THE OTHER
PARTY OR ITS PROPERTY OR PETITION IN BANKRUPTCY IS FILED BY OR AGAINST THE OTHER
PARTY, OR IT MAKES AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS;
(iii) BY TADIRAN, IMMEDIATELY ON WRITTEN NOTICE, IN THE EVENT THAT AGENT
ATTEMPTS TO ASSIGN THIS AGREEMENT OR ANY RIGHTS HEREUNDER WITHOUT TADIRAN'S
PRIOR WRITTEN CONSENT, OR THERE IS A CHANGE OF MANAGEMENT OF AGENT WHICH IS
UNACCEPTABLE TO TADIRAN.
13. THE SUPPLIERS HEREBY WARRANT TO THE AGENT THAT IT SHALL NOT APPROACH OR
SOLICIT ANY BUSINESS TRANSACTION WITH ANY CLIENT THAT THE AGENT HAS INTRODUCED
TO THE SUPPLIERS, WITHOUT PREVIOUS
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CONSENT, IN THE TERRITORY AS DEFINED IN PARAGRAPH TWO, AS LONG AS THIS CONTRACT
IS IN EFFECT.
14. THE SUPPLIERS HEREBY WARRANT TO THE AGENT THAT IT SHALL INFORM AND/OR
PROVIDE COPIES OF ANY CORRESPONDENCE BETWEEN THE SUPPLIERS AND ANY CLIENT OR
CONTACT IN THE TERRITORIES, WHETHER INTRODUCED BY THE AGENT TO THE SUPPLIERS OR
NOT.
APPLICABLE LAW
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE PROVINCE OF ONTARIO.
SIGNED ON THIS 15TH DAY OF MAY, 1995 BY:
/s/ Xxxxx Xxx
---------------------------------------------
JJAMP TREASURY INTERNATIONAL CORP. (AGENT)
ACCEPTED BY
/s/ Xxx Xxxxxx
---------------------------------------------
TADIRAN ELECTRONIC INDUSTRIES INC. (SUPPLIER)
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