ACOSTA, INC. BROKER-CLIENT CONTRACT
XXXXXX,
INC.
THIS
Agreement is made this first day of May, 2008 by and between RHG LLC d/b/a First
Blush, herein called the CLIENT, and Xxxxxx, Inc. d/b/a Xxxxxx Sales &
Marketing Company, a corporation organized under the laws of the State of
Delaware, herein called the BROKER.
WHEREAS,
CLIENT is a manufacturer and seller, of among other things, certain merchandise
or products, as listed in Attachment No. 1 to this Agreement, and desires
to secure the services of a BROKER in the territory hereinafter described, to
negotiate the sales of said merchandise or products in CLIENT'S name and for its
account; and
WHEREAS,
BROKER is desirous of securing the exclusive right to negotiate sales of said
CLIENT'S products or merchandise in the territory.
NOW
THEREFORE, in consideration of the premises and covenants and undertakings
herein contained.
IT
IS MUTUALLY AGREED AS FOLLOWS:
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1)
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TERRITORY.
CLIENT hereby appoints BROKER, and BROKER hereby agrees to act for CLIENT,
as its (or his, as the case may be), sole and exclusive Representative for
negotiations of sales of the merchandise or products hereinabove
enumerated, subject to the terms, provisions and conditions hereof, within
the territory as described in Attachment No. 2 to this
Agreement.
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2)
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SALES
NEGOTIATIONS. All sales negotiations by BROKER for the account of
CLIENT shall be conducted in accordance with such prices, terms and
conditions as specified by CLIENT.
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3)
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INDEPENDENT
CONTRACTOR. It is further understood that BROKER shall act as an
Independent Contractor of CLIENT, that neither BROKER nor its employees
shall be considered employees of CLIENT, and neither party shall in any
event be held liable or accountable for any obligations incurred by either
party other than as specified herein, it being specifically understood
that the respective businesses of each of the parties shall be operated
separate and apart from each other.
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4)
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CONFLICTS. In
the event of product conflicts, both parties shall make every reasonable
effort to reach an agreement on a method for BROKER to represent the
products involved.
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5)
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APPLICABLE LAW.
The laws of the State of Florida shall govern the application and
interpretation of this Agreement.
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6)
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ENTIRE
AGREEMENT. It is understood that this Agreement cancels and
supersedes any and all prior agreements, oral or written, made between the
parties hereto, and can only be modified by an agreement in writing,
signed by all applicable parties.
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XXXXXX,
INC.
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7)
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ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement
shall he settled by arbitration in accordance with the rules of the
American Arbitration Association and judgment may be entered in any court
having jurisdiction thereof.
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8)
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SOLICITATION OF
EMPLOYEES. CLIENT and BROKER agree that during the term of this
Agreement and for a period of six-months thereafter, that neither party
will solicit for hire, hire or otherwise encourage an employee of the
other party to leave their current employment in any manner or for any
reason whatsoever.
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THE
CLIENT AGREES AS FOLLOWS:
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9)
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EXCLUSIVE
REPRESENTATION. BROKER shall be the sole and exclusive Sales
Representative of CLIENT for negotiating sales of the merchandise and
products herein specified in the described territory, and CLIENT will
either (a) make no sales of said merchandise and products in such
territory other than those negotiated by BROKER, or (b) in case of sales
made by CLIENT in such territory other than those negotiated by BROKER, or
on sales made otherwise for shipment of CLIENT'S merchandise or products
into the said territory for resale CLIENT will pay BROKER a commission or
brokerage on the merchandise and products so sold at the rate specified in
the following paragraph. Further, CLIENT agrees not to enter into any
contract with any other Sales Representative in the territory specified
herein during the life of this
Agreement.
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10)
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COMMISSIONS / RETAIL
SERVICE FEES. To pay BROKER 5% net on each and every sale, as
provided herein the said percentage rate of commission, or brokerage, to
be computed on the price of the merchandise or products sold after
discounts and allowances are figured, said brokerage payment to be made
promptly within 30 days after the end of each
month.
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11)
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ELIGIBLE
BUYERS. To permit BROKER, consistent with the terms of this
Agreement, to negotiate sales to any and all prospective Buyers of
CLIENT'S said products throughout the entire territory defined in
Attachment 2, including all customer locations extending beyond the
defined territory where the buying office is located within the defined
territory or where the customer purchases CLIENT's products through a
wholesaler located within the defined
territory.
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12)
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SHIPMENTS. To
ship the merchandise or products sold as BROKER may specify. CLIENT shall
be given reasonable notice with respect to the required shipments. CLIENT
accepts full responsibility for granting credit to
Buyers.
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13)
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SALES AND PROMOTIONAL
POLICIES. To keep BROKER fully informed on all sales and
promotional policies and programs affecting the specified
territory.
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14)
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INDEMNIFICATION.
If any claim or action be made or filed against BROKER, claiming loss or
injury of any nature whatsoever, as a result of defect in any merchandise,
purchase or use of any product manufactured, produced, or distributed
by
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XXXXXX,
INC.
CLIENT or
for actions by any employee of CLIENT, to defend, hold harmless and indemnify
BROKER from any and all loss or damage, costs and expenses, including legal
fees, incurred by it.
THE
BROKER AGREES AS FOLLOWS:
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15)
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CLIENT'S
INSTRUCTIONS. To carryout CLIENT'S instructions with respect to the
sales of the merchandise and products specified
herein.
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16)
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COMPETITIVE
PRODUCTS. To keep CLIENT informed with respect to the
representation of a competitive product by
BROKER.
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17)
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REPORTING PURCHASE
ORDERS AND NEGOTIATIONS. To promptly report all negotiations and
purchase orders of specified merchandise and products for confirmation or
approval by CLIENT, and in negotiating sales to prospective Buyers within
the specified territory, to report negotiations to
CLIENT.
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18)
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ASSIST IN
COLLECTIONS. To assist CLIENT in effecting prompt and full payment
by Buyers for all deliveries of merchandise and products sold. The final
determination as to credit and credit terms shall be made only by
CLIENT.
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19)
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CONTACT PROSPECTIVE
BUYERS. To contact prospective Buyers in the assigned territory in
furtherance of sales of specified merchandise and products of
CLIENT.
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20)
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INDEMNIFICATION.
If any claim or action be made or filed against CLIENT, claiming loss or
injury of any nature whatsoever, as a result of actions by any employee of
BROKER, to defend, hold harmless and indemnify CLIENT from any and all
loss or damage, costs and expenses, including legal fees, incurred by
it.
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DURATION
OF AGREEMENT
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21)
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TERM/TERMINATION.
This Agreement shall continue in full force and effect from year to year,
provided that either party may terminate this Agreement for any reason by
giving 30 days written notice of such intention to the other party. Either
party may terminate this Agreement without notice in the case of default
by the other party to any of the terms of this
Agreement.
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a)
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In
the event BROKER elects to terminate this Agreement, it is understood that
BROKER will be paid commission earned, without deductions or offset, for
all shipments of CLIENT'S products through the date of
termination.
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b)
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In
the event CLIENT elects to terminate this Agreement, it is understood that
BROKER will be paid commission earned, without deductions or offset, for
all shipments of CLIENT'S products through the date of termination and for
a period of 30 days thereafter if Agreement is terminated without
cause.
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XXXXXX,
INC.
IN
WITNESS WHEREOF, the parties hereto have signed this Agreement, thereunto duly
authorized on the day and year above written.
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BROKER:
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Xxxxxx
Sales & Marketing Co.
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0000
Xxxxxxxxx Xxxxxx Xxxxxxx
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Xxxxxxxxxxxx,
XX 00000
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By
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Xxxxx
X. Xxxxxx
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V.P.
- Operational Control
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(Title)
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ACOSTA,
INC.
ATTACHMENT
# 1 - PRODUCT DESCRIPTIONS
First
Blush Juices and Teas as well other additions from time to time
Cabernet
Juice
Merlot
Juice
Syrah
Juice
Chardonnay
Juice
Cabernet
White Tea
Chardonnay
While Tea
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XXXXXX, INC.
ATTACHMENT
#2 – TERRITORY
Safeway-
All Divisions
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