MANUFACTURERS AGREEMENT FOR
PRIVATE LABEL COMPANIES
THIS CONTRACT made this Twelfth day of June, 1995 between XXXXXXXXX
FOODS CORPORATION, a New Jersey Corporation, trading as Andrea's,
hereinafter referred to as the "Manufacturer", doing business at 000
Xxxxx Xxxxxxxxx Xxxxxx, in the City of Orange, County of Essex and State
of New Jersey, on the one part, and; SILVER STAR RAVIOLI COMPANY, INC.,
X.X. Xxx 000000, Xxxxxxxx, Xxx Xxxx 00000, hereinafter called the
"Private Label Company", of the other part.
WITNESSETH, that the said party of the first part, for and in
consideration of the sum of FIVE THOUSAND ($5,000.00) DOLLARS to be paid
and satisfied as hereinafter mentioned, and also in consideration of the
covenants and agreements hereinafter mentioned, made and entered into by
the said party of the second part, agrees as follows:
The manufacturer shall make the following product lines to be
purchased by the Private Label Company for sale in the retail and/or
wholesale marketplace, by said Private Label Company:
1. Product (A) - 13 oz. Large Round Cheese Ravioli
Packed 12 Ravioli Per Bag -
24 Units Per Case, $13.85 Per Case.
2. Product (B) - 16 oz. Cavatelli
Packed One Pound Per Bag -
24 Units Per Case, $9.95 Per Case.
The prices listed in this Agreement are contingent upon the Private
Label Company's monthly sales of 7,000 cases of Product (A) and 3,000
cases of Product (B). If Private Label Company fails to purchase from
Manufacturer the above mentioned volume over a fifty-two (52) week
period, the Manufacturer reserves the right to raise prices according to
usage or lack there of.
No order by Private Label Company shall be less than 250 cases of
Product (A) or Product (B).
2. The Manufacturer shall pay for all bags, labels and
corrugated boxes as needed in its sole discretion, to manufacture and
package the product line set forth in Paragraph 1 above for the Private
Label Company, at the Manufacturer's sole cost and expense.
However, the Manufacturer shall not pay for or be responsible
for artworks, plates, dyes of any kind needed for the packaging of said
product lines. Manufacturer will not purchase more than sixteen (16)
weeks supply of packaging. The amount will initially be based on
projections made by Private Label Company. After a history of sales has
been established, the 16-week supply will be determined by the sales of
the Private Label Company.
3. If the Private Label Company "ceases to do business" for any
reason whatsoever with the Manufacturer, the Private Label Company shall
reimburse the Manufacturer for all costs and expenses incurred or
contracted for by the Manufacturer for purposes of fulfilling this
agreement such as, finished product, inventory of finished product, raw
material and supplies, paper products, manufacturing expenses, legal
fees, storage expenses, etc. "Ceases to do business" with Manufacturer
is hereby defined to be the failure by Private Label Company to purchase
7,000 cases of Product (A) and 3,000 cases of Product (B) within any one
(1) month period. If the Private Label Company "ceases to do business"
as defined herein, it shall constitute a default under this Agreement.
4. The Private Label Company shall pay the Manufacturer a
minimum retainer of Five Thousand ($5,000.00) Dollars to offset the
Manufacturer's start up costs to be put in an interest bearing account.
The interest will accumulate and paid in full yearly to Private Label
Company. If, prior to one (1) year from the date hereof, Private Label
Company elects to terminate this Agreement of Manufacture, the $5,000.00
will be returned to Private Label Company upon payment in full of all
end product, packaging, corrugated, etc. If Private Label Company does
not pay for the above mentioned costs, Manufacturer shall retain the
retainer fee in full. If the Manufacturer extends credit terms to the
Private Label Company, the $5,000.00 retainer shall be released to
Private Label Company.
5. In the event of a Default by the Private Label Company of
this Agreement, the Manufacturer shall be entitled to keep all deposit
monies paid as liquidated damages plus all other advances paid by the
Private Label Company on order given to date, plus the Private Label
Company agrees to be liable for all consequential damages resulting from
the default and/or breach of this Agreement including attorneys fees,
costs of suit and interest on amounts due and owing the Manufacturer
from the date of all open purchase orders. Damages shall also include
discharging, reloading, handling, storing or any other reasonable
services or expenses incurred in the manufacture, storage, preservation,
resale and distribution (where applicable) of the product line of the
Private Label Company. A Default by Private Label Company shall occur
upon the failure to (1) pay the orders as provided for hereunder; (2) to
make the minimum purchases; or (3) to comply with all other terms of
this Agreement.
6. The Manufacturer agrees to produce in accordance with Good
Manufacturing Practices and Federal and State Food Regulation, and will
deliver same to Private Label Company. However, the Manufacturer shall
not be liable for damages after the product has left its control or for
damages arising out of label misstatements or false advertising
statements. The Manufacturer will be liable for any short weight
product or improperly packaged product.
7. The Manufacturer disclaims any and all warranties either
express or implied warranties for a Particular Purpose or
Merchantability. The Manufacturer will provide the Private Label
Company with a certificate of insurance naming the Private Label Company
as an additional insured.
8. Payment shall be made by Private Label Company in cash,
certified check, bank check or wired to Manufacturer's bank account by
11:00 a.m. to the Manufacturer for the entire amount due and payable to
the Manufacturer one (1) day prior to shipment/pickup of end product.
This payment procedure will apply for twelve months from the first
invoice date. After six (6) months from the first invoice date, the
Manufacturer will review the payment procedure set forth in this
Agreement and will decide to alter or not alter the payment procedure.
9. The Manufacturer shall not be responsible for its failure to
meet any manufacturing product, packaging or distribution deadline
established by the Private Label Company if the Private Label Company
does not give the Manufacturer proper lead time on confirmed ads and
proper and reasonable sales projections of at least four (4) weeks in
advance.
10. All formulas and manufacturing procedures used by the
Manufacturer are proprietary to the Manufacturer and will be kept
confidential and not revealed to any party.
11. Either party may terminate this Agreement at any time by
giving the other party notice in writing of such desire of termination
at least one hundred twenty (120) days upon which date such termination
is to occur. A notice shall be supplied by certified mail return
receipt requested effective upon delivery or by hand delivery of said
notice. Effective upon termination of the Private Label Company shall
immediately pay the Manufacturer for any open outstanding invoices, if
any, and agrees to pay in full on all pending orders for said product
line.
12. During the term of this Agreement, the Private Label
Company agrees to make the Manufacturer its exclusive manufacturer and
packager of said product lines. The Private Label Company shall be
allowed, in emergent circumstances, to obtain product from any other
supplier or producer at any price, to satisfy its order requirements in
the event the Manufacturer cannot satisfy such requirements, upon
providing telephone notice to Manufacturer.
13. The decision of manufacturing and packaging of the Private
Label Company's private line of said product line shall be exclusively
that of the Manufacturer. The parties mutually agree and understand
that the price of manufacturing and packaging may escalate without
notice due to factors beyond the control of the Manufacturer. The
Private Label Company agrees to pay for any and all increases in
manufacturing and packaging costs incurred directly by the Manufacturer
upon Manufacturer giving ten (10) days written notice. Concurrently,
the Manufacturer will also pass along decreases in manufacturing and
packaging costs as they occur. The Manufacturer will review these
prices with the Private Label Company every three (3) months.
14. The Private Label Company agrees to place all outside
orders with Manufacturer . The Private Label Company agrees that the
Manufacturer shall not be responsible for the nonperformance of any
order that is not confirmed with a written acceptance of the purchase
order or be responsible for any penalties the Private Label Company may
incur as a result of nonperformance.
15. The Private Label Company represents that it is a New York
Corporation and that this contract was approved by duly authorized
corporate resolution.
16. The Private Label Company will arrange for all orders to be
picked up at the Manufacturer's plant address or its nearest storage
facility by Private Label customers. In the event that pick-up is not
made by Private Label customer, the Manufacturer will not be responsible
or liable for delivery and will not deliver product for Private Label
Company. Consequently, the Private Label Company will be solely
responsible to arrange for pick-up of product by any means necessary.
17. This Agreement shall be governed by the laws of New Jersey.
Private Label Company does hereby submit to the jurisdiction of the New
Jersey courts and agrees it may be served with a Complaint by certified
mail.
18. All Notices shall be in writing and shall be by certified
mail, return receipt requested, to the party at the addresses stated in
this Agreement, attention to the party signing the Agreement.
19. This Agreement sets forth the understanding of the parties
and there are no oral agreements. This Agreement may only be modified
by a written agreement signed by the parties.
20. This Agreement shall be binding on the parties and their
successors and assigns.
WITNESSETH: XXXXXXXXX FOODS CORPORATION
A New Jersey Corporation,
Manufacturer
/s/ Rose Xxxxx Xxxxxxxxx BY: /s/ Xxxxxxx Xxxxxxxxx
-------------------------- -----------------------------
ROSE XXXXX XXXXXXXXX XXXXXXX XXXXXXXXX,President
Assistant Secretary
WITNESSETH: SILVER STAR RAVIOLI COMPANY, INC.
/s/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxx Xx.
------------------------- ----------------------------
XXXXXXX XXXXXX, President XXXXXXX XXXXXX XX., C.E.O.
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