MASTER MANUFACTURING AGREEMENT
THIS MASTER MANUFACTURING AGREEMENT
(this “Agreement”) is made
as of November 11, 2009 by and between Cono Italiano, Inc., a Delaware
corporation located at 00 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (herein
referred to as “Cono”) and Edesia Emprise, LLC, an Indiana limited liability
company located at 000 Xxxxx Xxxxx Xxxxxx, Xxxx 000, Xxxx Xxxxxx, Xxx Xxxxxx
00000 (herein referred to as “Edesia”).
WHEREAS, Cono is engaged in
the sale of a food product for quick service restaurants consisting of a cone
shaped pizza dough;
WHEREAS, Edesia desires to
manufacture and deliver the product known as “pizza cone” (herein referred to as
the “Product”) as per the request of Cono, and Cono desires that Edesia so
manufacture the Product under this Master Manufacturing Agreement, throughout
the United States, which manufacture may either be undertaken directly by Edesia
or through one or more subcontractors selected and supervised at the sole
discretion of Edesia, in each case upon the terms and subject to the conditions
of this Agreement.
NOW, THEREFORE, in
consideration of the premises hereby and mutual covenants hereinafter expressed,
the parties agree as follows:
1. TERM
The term
of this Agreement (the “Term”) shall commence on the signing of this Agreement
and shall continue in force and effect unless terminated as set forth in Section
8 hereof.
2. THE
PRODUCT
The
Product herein shall be an unfilled pizza cone manufactured in accordance with
the specifications set forth by Cono, provided, however, The cone shall
initially be unfilled, as Edesia does not currently have the capacity to fill
the cones due to the requirements for kosher supervision, but the parties may
agree upon kosher production as and when Edesia obtains such qualified
supervision.
3. RIGHTS
Cono
hereby grants to Edesia for the Term exclusive rights within the United States
to manufacture the Product for Cono, which shall include the making and
packaging of the “pizza cone” as provided in commercially reasonable
manufacturing specifications to be submitted by Cono to Edesia from time-to-time
pursuant to the terms of the license under which Cono operates its
business.
4. RESPONSIBILITIES
Subject
to the terms and conditions of this Agreement, Edesia shall be responsible for
all facets of the manufacture and delivery of the Product, including, without
limitation, the ordering and purchasing of all raw materials required to produce
the Product and the labor and cost of producing the Product and
storage. Edesia may execute and perform all of its responsibilities
set forth herein directly or through qualified sub-contractors as determined at
the sole discretion of Edesia.
(a) Delivery. Delivery
shall mean delivery of the Product to the shipping dock as Edesia shall specify
at the respective place of manufacture of the Product in the United States and
the loading of the Product onto trucks designated by Cono.
(b) Specifications of the
Product. Edesia shall manufacture the Product in accordance with such
specifications as set forth by Cono (the “Specifications”), to the extent not
inconsistent with applicable law, and shall maintain sufficient capacity to
manufacture sufficient quantities of the Product to meet Cono’s forecasted
demands for each period covered by a three-month forecast. Edesia may not make
any changes to Specifications without the prior written approval from Cono. Cono
may from time to time make reasonable alterations or modifications to the
Specifications by written notice thereof to Edesia, but only to the extent that
such alternations or modifications do not materially disrupt Edesia operations
or result in the incurrence by Edesia of unreasonable costs and expenses in
implementing such alterations and modifications.
(c) To
the extent that Cono requests Edesia to provide any services in addition to
those set forth herein, such as marketing and/or promotion, and Edesia agrees to
provide such services, such services will be provided for an amount which is to
be mutually agreed and negotiated by the parties hereto. Any
agreement to such effect will be detailed in writing and any charges relating
thereto will be invoiced by Edesia to Cono and will, at Edesia’s election, be
prepaid to Edesia by Cono, or will be payable by way of Edesia deducting these
amounts from any payments or amounts otherwise due to Cono
hereunder.
5. ORDERS &
PRICING
(a) Cono
shall order the Product from Edesia by the issuance of separate purchase orders
for the Product, which Purchase Orders shall contain terms consistent with this
Agreement except as provided otherwise in any written agreement by and between
Cono and Edesia. Such Purchase Orders shall be in form and substance
satisfactory to Edesia, as determined in Edesia’s sole and absolute discretion.
Each Purchase Order shall designate the desired types and quantities of Products
and delivery dates, and shall be submitted to Edesia at least fifteen (15) days
prior to the delivery date specified in such Purchase Order. At the time Cono
has issued a Purchase Order for a specified amount of Product and Edesia has
accepted such Purchase Order, Cono shall be committed to purchase the entire
amount of the Product ordered and the Purchase Order shall become
irrevocable. The entire amount of the manufactured Product
shall be the property of Cono whether or not it is shipped or remains on the
property of Edesia subject to the delivery of the Product to Cono.
(b) Title
in and to Product shall pass from Edesia to Cono, and the risk of loss of, or
damage to, such Products shall pass to Cono, in accordance with the terms and
conditions set forth in the Purchase Order covering such Product, but not prior
to delivery to the shipper unless agreed to in writing by Cono and
Edesia.
(c)
Edesia shall be responsible for all liability resulting from the manufacturing
of the Product and agrees to indemnify and hold Cono harmless from all claims,
suits and litigation resulting from the manufacturing of the
Product. Edesia shall retain an insurance policy covering the
manufacturing and distribution of the Product in an amount of at least one
million dollars per occurrence, provided, however, that if Edesia utilizes a
sub-contractor for manufacture of the Product, the Company shall be named as
additional insured, which policy may stand in lieu of a direct insurance policy
held by Edesia.
(d) The
pricing for the Product manufactured by Edesia pursuant to this Agreement is set
forth in subsection (f) below and may from time to time be amended by the
written agreement of Cono and Edesia. Edesia shall invoice Cono upon transfer of
title and based on the pricing set forth below, for the amount of Product so
transferred. Each such invoice shall describe the number of type of Product so
transferred by Edesia. Within thirty (30) days of receipt of an invoice
delivered by Edesia pursuant to this subsection, Cono shall remit to Edesia the
amount set forth therein.
(e) The
pricing set forth herein for the Product manufactured by Edesia pursuant to this
Agreement is based upon the manufacturing and delivery to Edesia’s loading
dock. The transportation of such Products from such location is the
responsibility of Cono. Cono shall be responsible for making arrangements,
including, but not limited to, the retention of a carrier, to ship Products on
the delivery date specified in the Purchase Order relating to such
Products.
(f) Cono
will pay Edesia the sum of Edesia’s reasonable and verifiable production costs,
plus (15%) fifteen percent. Said costs shall include all
manufacturing costs directly attributable to production of the Product,
including but not limited to ingredients, labor, and material as well as
proportionate allocation of directly attributable overheads, rent,
storage. Said cost is subject to change upon written notice to Cono,
and may be changed by Edesia as needed.
(g) Cono
will not be required to purchase a minimum Product on a monthly basis and
manufacturing will be based solely upon demand.
6. ACCOUNTINGS
(a)
Edesia shall submit to Cono production statements of all Product manufactured by
Edesia on a monthly basis.
(b) Cono
may, at Cono’s own expense, audit Edesia's books of accounts directly relating
to this Agreement. Cono may make such audit only for the purpose of
verifying the accuracy of statements sent to the Cono hereunder and only as
provided herein. The Company will have the right to audit such books
of account by notice to Edesia at least ninety (90) days prior to the date the
Cono intends to commence such audit. Such audit will be conducted by
either a reputable independent Chartered Accountant, Certified Public
Accountant, will be conducted in such a manner so as not to disrupt Edesia’s
other functions, and will be completed promptly. Any such audit will
be conducted only during Edesia’s usual business hours and at the place where
Edesia’s keeps the books of the accounts to be examined. Cono’s auditor will
review his or her tentative written findings with a member of Edesia's finance
staff designated by Edesia before rendering a report to the Cono so as to remedy
any factual errors and clarify any issues that may have resulted from
misunderstanding.
(c) Cono
acknowledges that Edesia's books of account contain confidential trade
information. Neither Cono nor Cono’s representatives will at any time
communicate to others or use on behalf of any other Person any facts or
information obtained as a result of their examination of Edesia's books of
account; except pursuant to a court order, statute or government regulation,
provided that Cono gives prior written notice to Edesia of such required
disclosure.
7. CONO’S
OBLIGATIONS
Cono will
furnish Edesia with all manufacturing information, licenses, releases,
assignments, consents and clearances required by Edesia for the manufacture of
the Product, without limitation and the packaging and information contained
therein.
Cono will
be solely responsible for and will perform, on a reasonable basis, all marketing
functions in connection with the Product.
8. TERM
This
Agreement shall be in effect on the date hereof and shall continue until the
fifth anniversary of the date hereof. This Agreement shall
automatically renew on each anniversary thereafter and continue and remain in
effect for additional three year periods unless either party gives not less than
one hundred and eighty (180) days’ advance written notice. This
Agreement may be terminated at any time upon mutual consent of the
parties.
Upon
termination, Cono shall pay Edesia all outstanding invoices to date and Edesia
will promptly deliver any Product that has not been shipped and will deliver to
Cono any and all equipment owned by Cono in its possession.
9. TERMINATION
(a)
Notwithstanding anything to the contrary contained herein, if upon the lapse of
thirty (30) calendar days following written notice to Edesia any of the
following conditions remains uncured, Cono may terminate this Agreement
effective upon written notice to Edesia: (i) any violation by Edesia of any
express direction or any reasonable rule or regulation of any governmental
authority with jurisdiction over manufacture of the Product, (ii) any breach or
violation by Edesia of the terms and conditions of this Agreement, (iii) any
gross negligence or willful misconduct by Edesia of any of its employees, agents
or representatives in respect of manufacture of the Product; or (iv) Edesia’s
inability to manufacture the Product in amount and quality satisfactory to
Cono.
(b)
Notwithstanding anything in the contrary contained herein, if upon the lapse of
thirty (30) calendar days following delivery of written notice to Cono any
breach or violation by Cono of the terms and conditions of this Agreement
remains uncured, Edesia may terminate this Agreement effective upon written
notice to Cono.
10. PRODUCT LIABILITY
INDEMNIFICATION
Edesia
shall indemnify and hold harmless Cono from any loss, damage, claim, cost or
expense incurred or suffered by Cono by reason of any claim by any third party
alleging a defect in the Product, provided that the condition or circumstance
affecting such Product was present prior to Cono accepting delivery of the
Product.
11. COMPANY
PROPERTY
All
advertising, sales, and other materials or articles or information including
without limitation data processing reports, recipes and/or specifications of the
Product, customer sales analysis, invoices, customer lists, identity of
suppliers, contractors or employees, price lists or information, samples,
supplier’s catalogues and price lists or any other material or data of any kind
furnished to Edesia by Cono or developed by Edesia on behalf of Cono or at
Cono’s direction or for Cono’s use or otherwise in connection with Edesia’s
engagement as manufacturer of the Product hereunder are and shall remain the
sole and confidential property of Cono.
12. TRADE
SECRETS
During
the term of this Agreement and thereafter, neither party shall for its personal
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit of any person, firm, association or company other than the
party owning such information regarding the business methods, business,
policies, procedures, techniques, ingredients, research or development projects
or results, trade secrets or other knowledge or processes of or developed by the
other party or suppliers of any other confidential information relating to or
dealing with the business operations or activities of the other party, made
known to such party or learned or acquired by such party in connection with this
Agreement.
13. EQUITABLE
RELIEF
Each
party acknowledges that the restrictions contained in sections 11 and 12 are
reasonable and necessary in order to protect the legitimate interests of the
other party, and that any violation thereof would result in the irreparable
injury to the party whose Confidential Information is being
disclosed. Each party therefore acknowledges that, in the event of
its violation of any of these restrictions, the other party shall be entitled to
obtain from any Court of competent jurisdiction preliminary and permanent
injunctive relief without the necessity of posting bond as well as damages and
an equitable accounting of all earnings, profits and any other benefits arising
from such violation, which rights shall be cumulative and in addition to any
other rights and remedies to which a party may be entitled.
14. NON-COMPETE
Edesia
agrees and covenants hereinafter not to compete with Cono directly or indirectly
with its customers and relationships (i) with any third parties to develop or
manufacture the Product, or any products that are competitive with the Product;
or (ii) that would enable any third party to develop or manufacture the Product,
or any products that are competitive with the Products. This
provision shall remain in effect and survive the termination of this Agreement
for a period of ten years.
15. MISCELLANEOUS
(a) Waiver. Neither the
failure or any delay on the part of either party to exercise any right remedy
power of privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy power of privilege,
preclude any other or further exercise of the same or any other right, remedy,
power or privilege nor shall any waiver of any right, remedy, power of privilege
with respect to any occurrence be construed as a waiver of such right, remedy
power of privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and signed by the party asserted to have been
granted such waiver.
(b) Governing Law. This
Agreement and all questions relating to its validity interpretation, performance
and enforcement (including, without limitation, provisions concerning
limitations of actions), shall be governed by the laws of the State of New
Jersey, notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any xxxxxx, custom or rule
of law requiring construction against the draftsman.
(c) Notices. All notices
demands and other communications required or permitted under this Agreement
shall be in writing and shall have deemed to have been duly given, made and
received only when delivered (personally by courier service such as Federal
Express, or by any other messenger) or when deposited in the United States
mails, registered or certified mail, postage prepaid, return receipt requested,
addressed as first set forth above. Any party may alter the address
to which communications or copies are to be sent by giving notice of such change
of address in conformity with the provisioned of this paragraph for the giving
of notice.
(d) Binding Nature of
Agreement. This Agreement shall be binding upon and inure to the benefit
of Edesia, its successors and assigns and shall be binding upon and shall inure
to the benefit of Cono and its successors and assigns. Edesia
acknowledges that the services to be rendered are unique and personal;
Accordingly Edesia may not assign or delegate any of its rights of obligations
hereunder without the prior approval of Cono.
(e) Provisions Separable.
The provisions of the Agreement are independent and separable from each other
and no provision shall be affected of rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part.
(f) Entire Agreement.
This Agreement contains the entire understanding of the parties hereto with
respect to the subject manner hereof, and supersedes all prior and contemporary
agreement and understandings, inducements or conditions, express of implied,
oral or written, except as herein contained. The express terms herein
control and supersede any course of performance and/or usage of the trade
inconsistent with the terms hereof.
(g) Paragraph Headings.
The paragraph headings in this Agreement are for convenience only and shall not
affect its interpretation.
(h) Number of Days. In
computing the number of days for purposes of this Agreement, all days shall be
counted including Saturdays, Sundays and holidays; provided however, that if the
final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be in the next day which is not a Saturday, Sunday or holiday.
(i) Modifications. This
Agreement may not be modified or amended orally but only by written agreement
signed by Authorized representatives of Edesia and Cono.
(j) Counterparts. This
Agreement may be signed in one or more counterparts each of which counterparts
shall constitute an original of this Agreement.
(k) Advice of
Counsel. EACH OF EDESIA AND CONO ACKNOWLEDGES THAT IN
EXECUTING THIS AGREEMENT, IT HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
| CONO ITALIANO, INC. | |||
|
|
By:
|
/s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
| EDESIA EMPRISE, LLC | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
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