Missing Graphic Reference] EXCLUSIVE DISTRIBUTION AGREEMENT
[Missing
Graphic Reference]
This
Exclusive Distribution Agreement is made and entered into this 18th day
of
July,
2003, by
and between International Food Products Group, Inc. ("IFPG") at 000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 and Silverado Corporation
K.K.
Ltd of Minato-Ku, Tokyo Japan.
Whereas
Manufacturer desires Distributor to act as its sole and exclusive independent
sales agent for sales of the Manufacturer’s IQF and Coffee Products (as defined)
to Japanese Club Stores, and Supermarket Retailers to act as Manufacturer’s sole
independent sales agent for sales of the Products within Japan.
Now
Therefore,
in
consideration of the mutual promises and covenants set forth herein, and
intending to be legally bound, the Parties agree as follows:
1. Grant
of Exclusive Rights.
1.1
Manufacturer
hereby appoints Distributor as its exclusive sales agent for the Manufacturer’s
IQF and Coffee Products (as hereafter defined) within the Country of Japan.
Manufacturer shall permit Distributor to use Manufacturer’s Products' name for
promotion and advertisement in the sale of the Products. While this Agreement
remains in effect, Manufacturer will not, directly or indirectly, sell or
otherwise exploit the Products within the Territory and will not permit anyone
else, either directly or indirectly, to sell or otherwise exploit the Products
within the Territory. The Distributor will not represent, promote, market,
distribute similar products in Japan.
1.2 Distributor
will comply with all applicable laws, rules and regulations in selling and
otherwise exploiting the Products and in otherwise dealing with the
Products.
2. Duties
and Responsibilities of Manufacturer.
2.1
Manufacturer
shall provide training to Distributor, including its agents or independent
contractors, regarding the sale, promotion and use of the Products.
2.2 Manufacturer
shall provide literature and/or advertising and promotional materials, displays,
and samples to Broker to assist Distributor in its distribution of the Products.
Manufacturer shall further provide consultation, on a commercially reasonable
basis, covering specific field problems encountered by Distributor in relation
to the Products.
2.3 Upon
receipt of a customer order from Distributor, Manufacturer will ship Products
directly to the customer site designated in the order.
3. Duties
and Responsibilities of Distributor.
3.1
Distributor
shall use its best efforts, in a commercially reasonable manner, to sell
Manufacturer’s Products to existing and prospective customers within the
Territory.
3.2
Distributor
will limit its claims and representations regarding the Products to those made
by Manufacturer in its published literature or promotional materials, or as
otherwise authorized by Manufacturer.
3.3 Distributor
will maintain adequate support staff, whether as employees of Distributor or
independent contractors or sub-distributors of Distributor, necessary to perform
its obligations under this Agreement.
3.4 Distributor
will guarantee a minimum of $2.5 Million in sales by 4th
Qtr.
2006 as a condition of retaining the exclusive rights and increases of 20%
annually for each year after.
4. Compensation.
4.1 Distributor
will receive a commission of three percent (3%) of the gross sales price for
all
Products sold by Distributor within the Territory. For purposes of this section,
“gross sales price” shall mean the invoice price of the Products to the customer
after any discounts or rebates. The Distributor will arrange for all products
to
be purchased by the Importer under an irrevocable letter of credit payable
at
sight and payable to IFPG.
4.2 Distributor’s
commission will be payable by Manufacturer to Distributor, seven (7) days after
Manufacturer receives payment under the letter of credit. Distributor shall
have
the right to inspect and audit, upon three (30) days written notice,
Manufacturer’s books and records related to customer orders, shipment, invoicing
and payments for the Products sold within the Territory pursuant to this
Agreement.
4.3 Distributor
agrees to cooperate with Manufacturer in making certain letter of credit is
opened based on terms outlined by IFPG.
4.4 Distributor’s
right to compensation will continue and will survive termination of this
agreement as set forth in section 7 below.
5. Manufacturer’s
Warranty and Indemnity.
5.1 Manufacturer
warrants to Distributor that (i) the Products and the packaging are and will
be
safe, the units of the Products sold to customers under this Agreement will
be
properly, adequately and safely packaged and labeled, and the Products and
any
supplemental materials comply and will comply with all applicable laws, rules
and regulations as required in Japan, (ii) there is not any and there will
not
be any defect in the design of the Products or in any units of the Products
sold
to customers under this Agreement, (iii) the Products do not and will not
violate any patent, copyright, trademark, service xxxx or other right and do
not
and will not contain any item, part or material which Manufacturer is not
authorized to use.
5.2
Manufacturer
will maintain product liability insurance in commercially reasonable amounts
and
will include Distributor as an additional insured on its policy.
5.3. Manufacturer
will indemnify Distributor against any liability and will hold Distributor
harmless from any loss, damage, cost and expense (including, without
limitations, legal fees and expenses) which Distributor incurs arising out
of or
in connection with any claim alleging facts that would constitute a breach
by
Manufacturer of any of its warranties under Section 5.1 or because of a breach
by Manufacturer of any of such warranties. It will not be a defense to any
of
the provisions of this Section 5 that Distributor is familiar with the Product.
5.4. Distributor
will notify Manufacturer of any claim described in Section 5.2 which is asserted
against Distributor. Manufacturer may, at its expense, defend and settle any
such claim; and if Manufacturer assumes such defense, it will notify Distributor
thereof and thereafter Manufacturer will not except as provided in the next
sentence, be obligated to pay any expenses of Distributor in connection with
such claim. Distributor will cooperate in the defense of any such claim, and
Manufacturer will pay any costs incurred by Distributor in connection therewith.
6. Term
and Termination.
6.1 This
Agreement shall continue until terminated by either Party upon thirty (30)
days
notice to the other Party.
6.2 If
any
amount owing under this Agreement is not paid when due, such amount will bear
interest at the rate of 18% per annum. The provisions of this Section will
survive termination of this Agreement.
6.3 This
Agreement will terminate upon the filing of a petition in bankruptcy, whether
voluntary or involuntary, by either Party.
7. Rights
following Termination of Agreement.
7.1 Termination
of this Agreement for any reason will be without prejudice to the rights and
obligations accrued to the date of termination.
7.2 For
all
customer accounts introduced by Distributor to Manufacturer, Broker will
continue to be paid at the commission rate stated in this Agreement as long
as
Manufacturer is making sales of Products to that customer. By way of example,
and not limitation, if Broker successfully introduces the Products to
Carefour
Japan
Club
Stores, then as long as the Manufacturer makes sales to Carefour, regardless
of
whether this Agreement is still in effect, Distributor will be paid the stated
commission rate on each sale. For purposes of this section, Manufacturer will
not be considered to be “making sales” to a customer if the customer has not
ordered any Products from the Manufacturer for a period of 12 consecutive
months.
8. General
Provisions.
8.1 Invalid
or unenforceable provisions. If
any
provision of this Agreement, or its application to any person or circumstance,
is invalid or unenforceable, then the remainder of this Agreement or the
application of those provisions to other persons or circumstances shall not
be
affected thereby.
8.2 Notices.
All
notices hereunder shall be sent by hand delivery, facsimile (with original
sent
regular mail), overnight receipted delivery, or by registered or certified
mail
to Parties as follows:
Manufacturer:
International
Food Product Group, Inc.
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Fax:
000-000-0000
Distributor:
Xxxx
Xxxxxxxxx
0-0-0
Xxxxxxxxx, Xxxxxx-xx, Xxxxx Xxxxx
011-81-3-576-1850
Either
Party may change the address and/or fax number above by written notice to the
other Party. Any time periods under this Agreement will run from the date of
actual delivery of the notice. If any notice is sent under this Agreement by
certified mail, the notice will be presumed delivered three days from the date
of mailing.
8.3 Applicable
law.
This
Agreement shall be governed in all respects and aspects by the laws of the
State
of California, and the Parties hereby agree that any legal action concerning
this Agreement shall be brought in a court of competent jurisdiction, in the
County of Orange in California.
8.4 Terminology.
All
terms
and words used in this Agreement, regardless of the number and gender in which
they are used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as
the
context or sense of this Agreement or any section, paragraph or clause in this
Agreement may require, as if the work had been fully and properly written in
the
appropriate number and gender.
8.5
Amendment
and assignment of Agreement.
This
Agreement shall not be modified or amended except by written agreement executed
by both Parties. This Agreement is assignable by Distributor with the consent
of
the Manufacturer, such consent to not be unreasonably withheld. Manufacturer
may
transfer and assign its rights and obligations under this Agreement to any
entity which succeeds to all or substantially all of Manufacturer’s business and
assets.
8.6
Costs
and Expenses of enforcement.
The
prevailing Party shall recover the reasonable costs and expenses, including
reasonable attorney's fees, incurred by that Party in connection with any legal
proceeding involving the enforcement of any of the provisions of this
Agreement.
8.7
Headings.
The
paragraph headings throughout this Agreement are for convenience and reference
only, and the words contained therein shall not be held to expand, modify,
amplify or aid in the interpretation, construction or meaning of this
Agreement.
8.8
Entire
Agreement.
No
representation, promise, guarantee or warranty was made to induce the execution
hereof or in connection herewith which is not expressly contained in this
Agreement. Distributor recognizes that neither the Manufacturer nor any other
person can guarantee Distributor success in the business. By the Execution
and
acceptance of this Agreement, the Parties acknowledge that they have read the
same and understand each provision hereof.
8.9
Date
of Effectiveness.
This
Agreement shall be effective as of the date set forth below.
9. Territory.
The
Country of Japan.
10. Products.
The
Products included in this Agreement consist of the following: Coffee, Tea,
and
IQF Products.
Additionally,
all Products developed by Manufacturer in the future that are similar to the
existing Products shall be considered Products subject to this
Agreement.
IN
WITNESS WHEREOF, the Parties have duly executed this Agreement.
Dated:
07/27/03
Broker:
Silverado
K.K. Ltd.
/s/
Xxxx Xxxxxxxxx
By:
_______________________________
Xxxx
Xxxxxxxxx
Its:
__President_____________________
Manufacturer:
IFPG
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000
/s/
Xxxxxxx Xxxxxx
By:
_______________________________
Printed
Name___Richard Damion____________________
Its:
_President______________________________