DISTRIBUTOR AGREEMENT
This
Agreement, is made and entered into as of this 1 day of July 2006 by and between
Orbital Group, LLC, a _______ limited liability company (the "Manufacturer")
and
Emy’s Salsa Aji Distribution Company, Inc., a Nevada corporation (the
"Distributor").
The
parties hereto agree as follows:
1.
ASSOCIATION
1.1
Manufacturer
hereby appoints and grants Distributor the right to act as the exclusive
distributor of Manufacturer's products as described in attached Exhibit
A
("Products") throughout the territory described in Exhibit A (the "Territory").
Manufacturer
reserves the right, exercisable from time to time, to add or discontinue
Products in its sole discretion, but shall advise the Distributor as soon as
practicable of its intentions to do so.
1.2
Distributor
agrees not to sell or distribute the Products outside the Territory, nor to
any
third party who Distributor has reason to believe will, directly or indirectly,
sell or ship the Products outside the Territory without Manufacturer's prior
consent. Distributor shall cooperate with Manufacturer in all reasonable manners
as may be requested by Manufacturer in order to prevent sales from occurring
outside the Territory. At Manufacturer's request, Distributor shall furnish
Manufacturer with documentation by the appropriate governmental authorities
satisfactory to Manufacturer evidencing shipment of the Products into the
Territory.
1.3
Distributor
shall issue Manufacturer 3,000,000 fully-paid and non-assessable shares of
the
Common Stock, par value $0.0001 per share, of Distributor in consideration
of this Agreement.
2. PRICES
2.1
Price
lists to Distributor shall be as set forth in Exhibit B (as revised from time
to
time by Manufacturer in its sole discretion) in effect on date of shipment.
Manufacturer shall sell the Products to Distributor as set forth in the price
list (hereinafter referred to as the "Product Price List") attached hereto
as
Exhibit B. The prices of the Products are expressed in United States Dollars
("U.S. $"), F.O.B. Manufacturer's warehouse in Baltimore, Maryland, or such
other warehouse or location as Manufacturer may designate from time to time,
whether or not Manufacturer subsequently assists Distributor in shipping the
Products to Distributor or elsewhere in the Territory.
3.
DUTIES
3.1
During
the Term, Distributor, its subsidiaries, corporate parents and commonly
controlled companies shall not manufacture, distribute, sell, market or promote
any Products which compete or is likely to compete with any of the Products
without the prior written consent of Manufacturer.
3.2
In
the
event any restriction against engaging in a competitive activity contained
in
this Section shall be determined by any court of competent jurisdiction to
be
unenforceable by reason if its extending for too great a period of time or
over
too great a geographical area or by reason of its being too extensive in any
other respect, the restriction set forth shall be interpreted to extend only
over the maximum period of time for which it may be enforceable, over the
maximum geographical area as to which it may be enforceable and to the maximum
extent in all other respects as to which it may be enforceable, all as
determined by such court in such action.
3.3
Distributor
shall maintain and operate such suitable establishments and inventory in the
Territory for the promotion, advertising, distribution and sale of the Products
adequate to meet the market requirements for said Products in the Territory
and
at all times maintain an efficient and adequate staff of salespersons engaged
in
the promotion, advertising, and sale of the Products in the Territory.
Distributor shall maintain sufficient warehouse, delivery and logistical
personnel to assure customer service at the highest standard possible.
Distributor's sales organization shall be maintained at adequate levels in
terms
of absolute manpower and quality of the sales force.
3.4
Unless
specifically authorized in writing by the Manufacturer, Distributor shall
exercise its best efforts only to promote the sale of the Products in the
Territory and to further the popularity of names, brands, logos and trademarks
used in connection with the distribution and sale of the Products. Distributor
shall also use its best efforts to secure and maintain a volume of sales of
the
Products.
3.5
Distributor
shall at all times comply with and strictly observe the laws and regulations
applicable in the Territory and comply with all instructions, directions,
specifications, information and data which Manufacturer may give with regard
to
the labeling, handling, use, storage, distribution, promotion and sale of the
Products. While complying with the undertakings set forth in this Agreement
or
any agreement with subdistributors or stores, Distributor shall require that
its
employees, representatives, intermediaries and agents comply with all the laws,
regulations and applicable legislation in the Territory, including but not
limited to, the laws that regulate the labeling or packaging of the Products.
In
addition, Distributor shall immediately notify Manufacturer of all the
provisions and requirements set forth by any law, regulation or resolution
of
any authority in the Territory that may affect Manufacturer or the purchase,
sale or dispatch of the Products or the resale of the Products to the customers
or to others.
3.6
Distributor
agrees to adhere to and comply with Manufacturer’s policies, programs and
directives as from time to time communicated and to cooperate in all respects.
3.7
Distributor
agrees to furnish to Manufacturer, promptly upon request, such written
information as Manufacturer may, from time to time, reasonably request
concerning Distributor’s sales activities to customers in the Territory.
3.8
Distributor
will promptly deliver to Manufacturer a true, correct and complete list of
all
clients and products represented by Distributor. Such list will be revised
on
the anniversary date of this Agreement.
2
3.9
Distributor
agrees to solicit business and to bear exclusively the cost of any and all
selling and administrative expenses, including correspondence, telex, telephone,
traveling and entertainment expenses, salaries and commissions, advertising
and
sales promotion expenses and generally not to commit the Manufacturer to any
expenses in the Territory without the Manufacturer’s specific written
authorization.
3.10
Neither
Manufacturer nor Distributor is required to spend any minimum amount on
advertising and/or public relations related to the Products, however,
Distributor agrees to incur advertising and promotional expenditures to support
the Program in a manner similar to how it supports other products it
distributes.
4.
ASSISTANCE
BY MANUFACTURER
Manufacturer
agrees to furnish Distributor with Manufacturer's samples and other sales aids
as may be available from Manufacturer from time to time, in such quantities
as
Manufacturer reasonably determines necessary to facilitate the sale of Products
in the Territory.
5. PASS-ON
OF CONDITIONS
5.1
Distributor
shall effectively pass on to all of its customers Manufacturer’s conditions of
sale, including the limited warranty, limitation of remedy, the disclaimer
and
exclusion of warranties of merchantability and fitness, and the exclusion of
special and consequential damages, as well as all of Manufacturer’s warnings and
instructions on the use of the Products. Distributor shall indemnify and hold
Manufacturer harmless from and against all liabilities and expenses that result
from Distributor’s failure to effectively pass on such provisions to its
customers.
5.2
Manufacturer
may refuse to ship or delay the shipment of any Products on order if Distributor
becomes delinquent in payment of its obligations, or exceeds established credit
lines. No such refusal or delay will be deemed a termination of this Agreement
by Manufacturer.
6. MINIMUM
SALES LEVELS
6.1
Distributor
shall not be required to purchase any minimum dollar amount of Products in
the
first year following the date of this Agreement. Thereafter, this Agreement
will
terminate if Distributor has not purchased a minimum of $15,000 of Products
by
the end of each one-year anniversary of this Agreement.
6.2
Distributor
shall advise Manufacturer as to any applicable requirements in the Territory
for
the packaging of the Products. In no event may Distributor make any change,
addition or modification in or to the packaging of any Product without
Manufacturer's prior written consent. The Products shall have the weight, size
and measurements normally used in the United States of America or those that
Manufacturer may establish.
6.3
The
Distributor shall advise Manufacturer as to any applicable requirements in
the
Territory for the labeling of the Products. In no event may the Distributor
make
any change, addition or modification in or to the labeling of any Product
without Manufacturer's prior written consent. The Distributor shall comply
with
any and all requirements of Territory law in respect of the labeling of the
Products, taking into consideration that the Distributor's name, unless
expressly required by Territory regulations, shall not have a more prominent
exposure in location, color and size than Manufacturer's Trademarks or names.
Manufacturer shall sell its Products with English labels, or if otherwise
agreed, English and labels in such language as is required in the Territory,
but
all costs and expenses incurred in translating the Products' labels into any
language other than English, as well as any other costs and expenses related
to
any additional label require to be affixed to the Products or inserted into
the
packages of the Products by the Authorities (as defined hereinbelow), shall
be
exclusively borne and paid by Distributor. Distributor will not relabel the
Products other than translation and overlabel except with the express prior
written consent of Manufacturer. Distributor shall assume all responsibility
and
liability for any claims by the Authorities or by any other official agency
and/or by any party regarding or resulting from improper or unlawful labeling
and any damages resulting therefrom. Distributor shall submit for Manufacturer's
written approval all labels (with their respective English translations)
designed in accordance with Manufacturer's guidelines. No changes in labels
once
approved by Manufacturer will be made unless prior written approval has been
obtained from Manufacturer.
3
6.4
The
delivery of the Products to Distributor shall be subject to the terms usually
employed by and current at the time of delivery. Manufacturer shall not be
bound
to deliver any order of the Products to Distributor unless a letter of credit
is
in effect on the date of dispatch, or the parties have mutually agreed in
writing to other terms. When the Products have been delivered to Distributor's
transporter, Manufacturer shall receive all the required documentation,
including but not limited to, the xxxx of lading. Delivery of the Products
to
Distributor's transporter shall transfer title to the Products to Distributor,
and all risk of loss of such Products shall be for Distributor's account as
from
such transfer of title. Distributor shall report to Manufacturer no later than
one month from the date of Distributor’s receipt of the Products any
deficiencies in the Products which render the Products unsaleable. Distributor
shall submit one or more units of the allegedly defective Products for
Manufacturer's examination. Credit will be issued or defective goods will be
replaced with fresh Products if examination confirms Distributor's claims or
defects.
6.5
Distributor
shall place the orders for the Products to Manufacturer by email, facsimile,
overnight courier service or any similar method of written communication. It
is
nevertheless understood that Manufacturer shall not be compelled to verify
if
the orders are authentic, nor if the person executing the orders in
representation of Distributor is authorized therefor. Distributor agrees that
all orders placed shall be subject to acceptance by Manufacturer and governed
only by the terms and conditions of this Agreement and by Manufacturer's Product
Price List currently in force.
6.6
(a)
Any
order
for the Products shall be considered accepted by Manufacturer upon written
confirmation sent by Manufacturer to Distributor stating that the order has
been
accepted.
4
(b) It
is
understood that Manufacturer's acceptance of orders from Distributor shall
be
subject to availability of Products taking into consideration Manufacturer's
other commitments and that Manufacturer shall not be required to accept any
orders involving unusual quantities or packing or labeling instructions or
delivery dates that Manufacturer cannot reasonably meet. In the event
Manufacturer is unable to fully satisfy any portion of an order it has accepted,
it shall promptly notify Distributor. Distributor shall have five (5) days
after
it has received said notice to revise the order to include different Products
or
different quantities of Products. In the event this procedure is followed,
Manufacturer shall in no event be liable to Distributor if Manufacturer decides
to modify, change or discontinue any of the Products.
(c) Nothing
contained in this Agreement shall require Manufacturer to sell or deliver to
Distributor any Products which Manufacturer may determine to be inappropriate
or
unsuitable for distribution or use in the Territory.
(d) Sales
of
Products to Distributor shall be governed by this Agreement and by the United
Nations Conventions on contracts for the international sale of goods (Vienna
1980) for international sales, if any are effected by Distributor.
6.7 (a) All
payments under this Agreement shall be made in accordance with the terms set
forth on Exhibit C, as it may be amended in writing from time to time by
Manufacturer.
(b) In
the
event that Manufacturer does not receive on the Payment Date all amounts owed
by
Distributor, and without prejudice to any other action that Manufacturer may
pursue, said amount shall accrue interest over the balance due, calculated
as
from said Payment Date until the date that Manufacturer effectively receives
payment hereunder, such interest at a rate per annum of two percent over the
prime rate announced by Citibank, N.A. from time to time, such rate to change
as
and when such prior rate changes, or fifteen percent per year, as Manufacturer
may elect, to be computed on the basis of a 365-day year for the number of
days
elapsed.
(c) Any
and
all payments required to be made to Manufacturer pursuant to this Agreement
shall be made free and clear of and without deduction for any and all current
or
future taxes, levies, imposts, deductions, tariffs, customs, duties,
commissions, charges or withholdings, and any liabilities with respect thereto,
imposed by any governmental authority of the Territory (all such taxes, levies,
imposts, deductions, tariff, customs, utilities, commissions, charges or
withholdings and liabilities shall hereinafter be referred to as "Taxes").
If
any Taxes are required to be deducted or withheld from or in respect of any
sum
payable hereunder to Manufacturer (i) the sum payable shall be increased by
the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable Manufacturer shall receive
an
amount equal to the sum it would have received had no such deductions been
made,
(ii) Distributor shall make such deductions and (iii) Distributor shall pay
the
full amount deducted to the relevant governmental authority in accordance with
applicable law, provided, however, with respect to any Taxes that are required
to be deducted or withheld from or in respect of any interest payments to
Manufacturer, Distributor shall have no obligation pursuant to this
Section.
5
6.8 (a) Title
to
the Products shall be transferred to Distributor at the time Manufacturer
delivers the Products to Distributor's transporter at Manufacturer's
distribution center located in Baltimore, Maryland, USA, or such other
distribution center as Manufacturer may use from time to time. At such time,
all
risks of the loss of the Products shall be transferred to Distributor.
Manufacturer reserves the right to change the place of transfer of Products
and/or risk of loss of the Products to Distributor, through notification served
on Distributor in writing with fifteen days advance notice.
(b) At
all
times throughout the term of this Agreement, Distributor shall procure and
maintain comprehensive general liability insurance, written on an occurrence
form, with appropriate limits to be mutually agreed upon by the parties hereto,
and which shall name Manufacturer as an additional named insured. Such insurance
shall provide coverage for any damages arising out of or in any way resulting
from Products furnished under this Agreement, including, without limitation:
(i)
bodily injury, sickness or disease, including death; (ii) property damage;
and
(iii) contractual assumption of liability under this Agreement. All insurance
policies shall provide that any cancellation, lapse, expiration, reduction
in
amount or material -change in the coverage, shall be not be effective as to
Manufacturer until at least 30 days after receipt by Manufacturer of written
notice by such insurers of such cancellation, lapse, expiration, reduction
or
change. Each policy required by this section shall provide that such insurance
shall be primary insurance without any right of contribution from any other
insurance carried by Manufacturer. All insurance required by this section shall
be procured and maintained in financially sound and generally recognized
responsible insurance companies authorized to write such insurance. On or before
the date of this Agreement, Distributor shall deliver to Manufacturer duplicate
copies of insurance policies, binders or certificates of insurance evidencing
compliance with the requirements of this section. At least 15 days prior to
the
expiration of any such policy, Distributor shall furnish Manufacturer with
evidence that such policy has been renewed or replaced.
7. PRODUCTS
REGISTRATION.
Distributor
shall inform Manufacturer of any and all permits, licenses or other governmental
or non-governmental authorizations that are necessary to sell, distribute or
promote the Products in the Territory, and it shall be the responsibility of
Distributor to obtain all such approvals, registrations and permissions and
otherwise to comply with all laws and governmental regulations with respect
to
the sale of the Products within the Territory.
8.
INTELLECTUAL
PROPERTY RIGHTS
8.1
Manufacturer hereby grants to Distributor, and Distributor hereby accepts,
during the Term of this Agreement and within the Territory, the non-exclusive
and non-transferable license (without the right to sublicense, except as may
be
approved by Manufacturer in advance, in writing) to use and employ the
trademarks, trade dress, logos, and copyrights as more fully described on
Exhibit A hereof (the “Marks”) and the goodwill and selling processes, which
Manufacturer has for the packaging, labeling, warehousing, using, advertising,
marketing and selling (hereinafter referred to as "Intellectual Property
Rights") of the Products solely in connection with the exercise of Distributor's
rights to sell Products hereunder. Nothing herein shall be construed as a grant
by Manufacturer to Distributor of any right to sublicense the Intellectual
Property Rights.
6
8.2
Distributor
shall, at its own cost, comply with all of Manufacturer 's technical
specifications and instructions related to the packaging, labeling, warehousing,
using and selling of the Products. Distributor agrees to conform to the
standards of quality which Manufacturer shall from time-to-time establish.
(a)
Distributor acknowledges the ownership of the Marks by Manufacturer, agrees
that
it will do nothing inconsistent with such ownership, and that all use of the
Marks and of the Intellectual Property Rights by Distributor and all good will
developed therefrom shall inure to the benefit of and be on behalf of
Manufacturer. Distributor agrees that nothing in this Agreement shall give
Distributor any right, title, or interest in the Marks or the Intellectual
Property Rights other than the right to Use the Marks and the Intellectual
Property Rights in accordance with this Agreement and Distributor agrees that
it
will not attack the title of Manufacturer to the Marks or the Intellectual
Property Rights, the validity of the Marks or the Intellectual Property Rights,
any rights of Manufacturer that may have arisen from this Agreement, or the
validity of this Agreement.
(b) Distributor
shall not use the Marks in any way except as expressly set forth herein without
the prior, express written consent of Manufacturer. Under no circumstances
shall
Distributor, at any time, directly or indirectly, use the Marks (or any designs
of the Products) or other proprietary information as part of Distributor's
corporate or trade name. Upon termination of this Agreement, Distributor shall
remove all references to Manufacturer from its letterheads, advertising
literature and places of business, and shall not thereafter use, directly or
indirectly, any similar or deceptive name or trademark intending to give the
impression that there is any relationship between the parties or that the
Distributor has the right to utilize in any way, shape or form any Marks or
other Intellectual Property Rights.
(c) Manufacturer
has the right to use any Products designed and used by Distributor and/or
Manufacturer as part of Distributor’s obligation under this Agreement in any
manner Manufacturer may deem beneficial to the exploitation of the Marks
anywhere in the world, including, but not limited to, the production, sale
and
distribution of the Licensed Products through a third party contractor or a
new
Distributor, should this License expire or terminate for any reason (with no
right to a Winding Up Period) prior to the fulfillment of any outstanding orders
or as otherwise necessary to protect the reputation and goodwill of the Marks.
Distributor shall be entitled to reimbursement for actual out-of-pocket expenses
associated with the duplication of art work, designs, patterns, etc. developed
by Distributor (which shall be duplicated and forwarded to Manufacturer promptly
after requested by Manufacturer) for use as set forth in this
paragraph.
(d)
Manufacturer shall be deemed the author, with the right but not the obligation
in its sole discretion, to register a claim to any copyright within an art
work
or a writing that is developed by Distributor as part of the obligations of
Distributor toward the Products. Distributor agrees that all such copyrighted
artwork and writings are a work for hire, and shall be protected as the sole
and
exclusive property of Manufacturer. In the event any such artwork and writings
are deemed to not be works for hire, Distributor hereby assigns all copyright
rights in and to the artwork and writings to Manufacturer. Distributor agrees
to
execute such documents as may be requested by Manufacturer to give effect to
this provision. Distributor shall place a legally sufficient copyright notice
which protects the rights of Manufacturer on each and every design, style,
garment, creation or writing which is capable of protection pursuant to the
copyright laws of the appropriate jurisdiction. Any public distribution of
goods
bearing copyrightable works of Manufacturer by Distributor without a copyright
notice as required above, if not authorized, is a violation of this
Agreement.
7
(e)
CONFIRMATION OF OWNERSHIP: Whenever requested by Manufacturer, whether during
the Licensed Term or thereafter, Distributor shall execute such documents or
applications as Manufacturer may deem necessary to confirm Manufacturer’s
ownership of all their rights, to maintain the validity of the Marks and the
copyright(s) referred to above in Section 7.2, and to obtain, or maintain any
registration thereof.
(f)
LABELS/PACKAGING: Except as otherwise expressly set forth herein, Distributor
shall not relabel or repackage the Products, or add or delete any label, hangtag
and/or packaging thereto. Distributor understands the importance of maintaining
the security and integrity of all labeling used on the Products, and Distributor
agrees to use its best efforts to maintain a strict, accurate and current
inventory of all labels throughout the manufacturing process of the Products
so
as to preclude any diversion of the labels, and, if any such diversion occurs,
Distributor agrees to notify Manufacturer in writing immediately upon discovery
thereof.
(g)
TRADEMARK REGISTRATION: In the event the Territory includes countries in which
one or more of the Marks has not yet been registered, Manufacturer has the
right, but not the obligation, to obtain trademark registration of any of the
Marks in such countries. Manufacturer makes no representation or warranty that
the Marks will be registered or are registerable in the Territory, and the
failure to obtain or maintain registrations thereof shall not be deemed a breach
hereof by Manufacturer. Notwithstanding Manufacturer’s failure to seek
registration of any Marks in any country, Distributor shall have no right to
seek any such registration, nor shall Distributor acquire any right, title
or
interest in any of the Marks as a result of the rights granted to it
herein.
(h)
Distributor shall notify Manufacturer promptly of any actual or threatened
infringements, imitations, or unauthorized use of the Marks by third parties
of
which Distributor becomes aware. Manufacturer shall have the sole right, at
its
expense, to bring any action on account of any such infringements, imitations
or
unauthorized use, and Distributor shall cooperate with Manufacturer, at
Manufacturer’s expense, as Manufacturer may reasonably request, in connection
with any such action brought by Manufacturer. Manufacturer shall retain any
and
all damages, settlement and/or compensation paid in connection with any such
action brought by Manufacturer. In no event shall Manufacturer be responsible
to
Distributor for any damages that may result from said
infringement(s).
8
8.3
Distributor
hereby recognizes that Manufacturer and Manufacturer's Intellectual Property
Rights, have an established and highly respected prestige and reputation by
both
business and the public. Therefore, it is essential to this Agreement and to
Manufacturer that in the import, distribution, marketing, promotion and sale
of
the Products, the high quality standards and excellent reputation established
by
Manufacturer and its affiliated entities are maintained at all times.
Distributor hereby agrees not to harm or discredit in any way the reputation
and
the prestige of Manufacturer and Manufacturer’s Intellectual Property Rights and
the Products.
9. CUSTOMER
SERVICING
Distributor
shall maintain in the Territory sufficient inventory of the Products so as
to
permit filling and shipping against current customer orders normally shipped
from Distributor's warehouse stock for a minimum of one (1) month. Distributor
agrees to notify Manufacturer if it opens any new offices or branches or closes
or ceases to operate through one of its offices or branches.
10.
ORDERS/ACCEPTANCE/PRICE
AND TERMS
10.1
All
orders from Distributor are subject to approval and final acceptance by
Manufacturer. For nonstandard Products which are sold to Distributor for resale,
the price shall be as quoted to Distributor at time of inquiry, provided that
the inquiry is within thirty (30) calendar days of order entry.
10.2
All
payments to Manufacturer by Distributor shall be in United States currency.
11.
WARRANTY
AND FORCE MAJEURE
11.1 Manufacturer
warrants that all Products delivered hereunder shall be of Manufacturer's
standard quality. MANUFACTURER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED:
THERE ARE NO IMPLIED WARRANTIES INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
11.2 Manufacturer
shall not be liable for damages resulting from delays in shipment or inability
to ship due to normal production and shipment delays or those resulting from
acts of God, fires, floods, wars, sabotage, accidents, labor disputes or
shortages, plant shutdown or equipment failure, voluntary or involuntary
compliance with any law, order, rule or regulation of governmental agency or
authority; or inability to obtain material (including power and fuel), equipment
or transportation, or arising from any other contingency, circumstances or
event
beyond the control of the Manufacturer.
11.3 Distributor
shall not be penalized for its failure to meet sales objectives resulting from
delays in shipment or inability to ship due to normal production and shipment
delays or those resulting from acts of God, fires, floods, wars, sabotage,
accidents, labor disputes or shortages, plant shutdown or equipment failure,
voluntary or involuntary compliance with any law, order, rule or regulation
of
governmental agency or authority; or inability to obtain material (including
power and fuel), equipment or transportation, or arising from any other
contingency, circumstances or event beyond the control of the
Distributor.
9
12. LIMITATION
OF LIABILITY
12.1 No
claims
of any kind, whether as to materials delivered or for nondelivery of materials
from Manufacturer, and whether arising in tort or contract, shall be greater
in
amount than the purchase price of the Products in respect of which such damages
are claimed; and the failure to give notice of the claim to Manufacturer where
the order was placed within sixty (60) calendar days from the date fixed for
delivery shall constitute a waiver by Distributor of all claims in respect
of
such Products. In no event shall Manufacturer be liable for special, indirect
or
consequential damages. Any claim with respect to defective Products or breach
of
warranty must be promptly made and shall apply to Products properly used,
stored, applied and maintained.
13. RELATIONSHIP
BETWEEN MANUFACTURER AND DISTRIBUTOR
Distributor
is not an agent, employee or legal Distributor of Manufacturer, but an
independent contractor. Distributor does not have any authority to assume or
create any obligation or responsibility on behalf of Manufacturer or bind
Manufacturer in any manner whatsoever. The relationship between manufacturer
and
Distributor is that of vendor and vendee. Distributor further agrees to defend,
indemnify and hold Manufacturer harmless including without limitation,
reasonable attorneys’ fees, from and against any and all claims of third parties
that would not have arisen but for an act or omission by Distribution that
is
contrary to the above-acknowledged relationship or any other term
hereof.
14. TERM/CANCELLATION
14.1
This
Agreement shall become effective as of the date hereof upon execution by an
officer or other authorized representative of the Manufacturer in the United
States and by an officer or other authorized representative of Distributor
and
shall remain in effect thereafter for a period of one (1) year unless previously
terminated by either party for any reason upon not less than thirty (30)
calendar days prior written notice to the other party. The Agreement shall
automatically renew for successive periods of one (1) year each (provided either
party may terminate for any reason upon not less than thirty (30) days prior
written notice to the other party), unless either party provides written notice
to the other that it does not wish the Agreement to renew no more than thirty
(30) days prior to the end of the then in effect period.
14.2
Without
limitation, the following events shall constitute grounds for termination by
Manufacturer upon ten (10) days prior written notice:
10
(a)
if
Distributor shall file or have filed against it a petition in bankruptcy or
insolvency or if Distributor shall make an assignment for benefit of its
creditors of if Distributor's viability as a going concern should, in
Manufacturer's judgment, become impaired;
(b)
if
Distributor fails to provide and maintain a proper and sufficient sales
force;
(c)
if
Distributor degrades and places in bad repute the name and reputation of
Manufacturer expressly or by virtue of its methods of handling and/or promoting
the Products;
(d)
if
Distributor fails to meet any other of its obligations hereunder;
(e)
upon
a change of control of Distributor (defined to be mean change in a majority
of
the board of directors, of issuance or transfer to stockholders who are not
stockholders on the date of this Agreement of shares representing in excess
of
fifty (50%) percent of the voting stock of Manufacturer, or
(e)
if
Distributor fails to purchase from Manufacturer more than $10,000 of Products
in
any three consecutive month period.
14.3
Except
as
may be otherwise determined pursuant to the laws of the jurisdiction where
Distributor has its principal office, Manufacturer shall have no liability
to
Distributor by any reason of any termination or cancellation of this Agreement
by Manufacturer, including without limitation, liability for direct or indirect
damages on account of loss of income arising from anticipated sales,
compensation, or for expenditures, investments, leases or other commitments
or
for loss of goodwill or business opportunity or otherwise.
14.4
Upon
termination by either Manufacturer of Distributor, Manufacturer shall have
the
option, but shall not be obligated, to buy back from Distributor any new unsold
Products purchased from Manufacturer, at the prices charged to Distributor,
less
Manufacturer's then applicable restocking charge, if any, and less any
additional expenses incurred by Manufacturer arising out of termination by
Distributor
15. NONDISCLOSURE
All
information transferred or otherwise revealed to Distributor by Manufacturer
under this Agreement, including but not limited to, engineering information,
manufacturing information, technology, know-how and price books or lists, will
at all times remain Manufacturer's property. Distributor shall at all times
hold
such information confidential and shall not disclose any such information if
not
otherwise within the public domain. Upon any termination of this Agreement,
or
as Manufacturer directs from time to time, Distributor shall promptly return
all
such information to Manufacturer, together with any copies or reproductions
thereof. Distributor's obligations under this section shall survive any
termination of the Agreement.
11
16. CERTAIN
PRACTICES
(a) Distributor
acknowledges that certain laws of the United States impose fines or penalties
on
Manufacturer in the event Manufacturer makes payments to foreign government
officials for the purpose of influencing those officials in making a business
decision favorable to Manufacturer. In addition, Manufacturer and Distributor
may be subject to similar laws or requirements of the country of destination
of
the Products. Distributor agrees upon reasonable request by Manufacturer to
give
Manufacturer reasonable written assurance that the Distributor has done nothing
to cause liability to Manufacturer under the above-mentioned laws.
(b) Distributor
shall indemnify and hold harmless Manufacturer for any damage incurred by
Manufacturer as a result of any violations of Sections 3.5 or 16
hereof.
17. NOTICES
All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been served or delivered:
(a)
when
personally served or delivered to one party by the serving or delivering party;
or
(b) when
deposited in the mail, postage prepaid by the serving or delivering party
addressed to the other party at the addresses set forth on the first page of
this Agreement.
The
parties may amend the person and address to which notice is provided by written
notice to the other party from time to time.
18.
VARIOUS
18.1
This
Agreement constitutes the entire and only agreement between the Manufacturer
and
Distributor with respect to its subject matter and there are no understandings
or representations of any kind, express, implied, oral, written statutory or
otherwise, not expressly set forth herein. No alteration or modification of
this
Agreement shall be binding unless in writing and signed by the party to be
bound
thereby.
18.2
This
Agreement is not assignable in whole or in part by Distributor without the
express written consent of Manufacturer.
18.3
If
Distributor consists of either two or more individuals or partners, each shall
execute this Agreement on behalf of Distributor and each individual signing
shall be jointly and severally liable to Manufacturer with respect to the
obligations of Distributor under this Agreement.
12
18.4
This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Maryland, without reference to principles of conflicts of
laws.
18.5
Any
controversy or claim arising under or in relation to this Agreement, or the
breach thereof, or the relations between Distributor and Manufacturer shall
be
settled by arbitration by one arbitrator in the City of Baltimore, Maryland
administered by the American Arbitration Association under the then applicable
General Commercial Arbitration Rules, and judgment on the award rendered by
the
arbitrator may be entered in any court having jurisdiction thereof; provided
however, that the arbitrator shall be bound by the laws of the State of Maryland
and shall have no power to extend this Agreement beyond its termination date,
nor to order reinstatement or other continuation of the parties' relationship
after termination, nor to award punitive, consequential, multiple, incidental
or
any other damages in excess of the economic damages actually sustained by the
claimant. If, and only if, the arbitrator shall determine that either party's
position in arbitration was not maintained in good faith, then the arbitrators
shall award the other party a reasonable attorney's fee. Any judgment shall
state the basis for the judgment. The choice of law governing any and all
questions and issues in any way related to this Agreement, except as set forth
in the above paragraph) shall be the laws of the State of Maryland.
18.6
Distributor
recognizes that the Products possess a special, unique and extraordinary
character which makes difficult the assessment of monetary damages which
Manufacturer might sustain by an unauthorized use. Distributor agrees that
irreparable injury would be caused by Distributor by such unauthorized use,
and
that injunctive relief would be appropriate in the event of breach of this
Agreement. The loser of said action shall pay any and all reasonable costs,
expenses, attorney's fees and disbursements incurred by the other party with
respect thereto.
18.7
In
addition, if after notice to Distributor, Distributor fails to take any action
which Distributor is obligated to take hereunder the Manufacturer shall have
the
right and option, but not the duty, to bring an action for specific performance
to compel such action. Each of Manufacturer and Distributor shall pay all of
its
own costs and expenses incurred in connection with any action for specific
performance under this Section 18.7.
This
Section 18.7 shall be an exception to the mandatory arbitration provision set
forth above.
18.8
The
failure of a party to insist upon strict adherence to any provision of this
Agreement on any occasion shall not be considered or deemed to be a waiver
nor
considered or deemed to deprive that party of the right thereafter to insist
upon strict adherence to that provision or any other provision of this
Agreement. Any waiver must be in writing.
13
18.9
This
Agreement is a complete statement of all agreements among the parties with
respect to the subject matter hereof. Any amendment, modification, alteration,
change or waiver must be in writing.
18.10
If
any
provisions of this Agreement is for any reason declared to be invalid or
unenforceable, the validity of the remaining provisions shall not be affected
thereby.
18.11
The
recitals, Schedules and Exhibits are hereby incorporated in this Agreement.
Paragraph headings are used solely for convenience and should not be given
any
weight in the interpretation of this Agreement.
18.12
The
parties each warrant the following: (1) that the delivery of this Agreement
has
been duly authorized by all requisite corporate action of its company; (2)
that
the execution and delivery of this Agreement does not violate its Articles
of
Incorporation or By-laws, or any contract or commitment to which it is a party
or by which it is bound; and (3) that it is not a party to any suit, action,
administrative proceeding, or investigation which, if successful, would have
a
material, adverse effect on its properties, financial conditions or
business..
18.13
This
Agreement's terms and conditions were freely negotiated. Manufacturer drafted
the Agreement for the convenience of the parties only. As such, the language
shall be interpreted without regard to any rule, law or presumption requiring
the language to be construed, interpreted or applied against
Manufacturer.
18.14
Manufacturer
reserves all rights not specifically granted to Distributor
hereunder.
18.15
The
parties hereto represent that they have each consulted with counsel of their
own
choosing in connection with the negotiation and execution of this agreement
or
have knowingly chosen not to do so.
ORBITAL
GROUP, LLC.:
By:___________________________
Name:
Xxxxxx Xxxxx
Title:
Manager
EMY’S
SALSA AJI DISTRIBUTION COMPANY, INC.:
By:___________________________
Name:
Xxxx Xxxxx
Title:
Vice President
14
Exhibit
A
Products
Line:
Mild
Salsa
Spicy
Salsa
Territory:
New
York
New
Jersey
Connecticut
Vermont
Massachusetts
Maine
Rhode
Island
15
Exhibit
B
Distributor
Price List
16
Exhibit
C
Payment
Terms and Conditions
17
