EXHIBIT 6.11
DISTRIBUTORSHIP AGREEMENT
COMPANY: INTERNATIONAL FOAM SOLUTIONS, INC,
0000 XX 0xx Xxxxxx #X0
XXXXXX XXXXX, XX 00000
000-000-0000 TEL
000-000-0000 FAX
DISTRIBUTOR: DIPPY FOODS, INC.
0000 X Xxxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000
000-000-0000 TEL
000-000-0000 FAX
DATE OF AGREEMENT: JULY 8, 1999
TERRITORY; California (Exclusive re Public Schools)
Washington, Arizona, Oregon & New Mexico as
Non_Exclusive
WHEREAS, Company is engaged in the manufacture, distribution and sale of
STYRO SOLVE and THE SOLUTION MACHINES for the reduction of polystyrene hereafter
known as the Products;
WHEREAS, Distributor is engaged in, among other things, the business of
buying for resale, marketing and distributing products, and Distributor desires
to purchase for its own account certain of Company products namely:
"STYRO SOLVE" and "THE SOLUTION MACHINES" all Models for all Public
School Related Business and for resale and distribution within the
California on an Exclusive Basis; and a Non_Exclusive Basis for any
other Business Public Schools within the balance of the Territory.
WHEREAS, subject to and upon the terms and conditions herein contained, the
Company is willing to sell to Distributor for resale within the TERRITORY
certain of Company's Products and to grant to Distributor the limited right to
distribute and sell such products within the California on an EXCLUSIVE basis to
public schools only, and sell on a NON-EXCLUSIVE basis to any and all other
customers within California and the balance of the territory.
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NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Appointment. Upon the terms and subject to the conditions contained in
this Agreement, Company hereby grants to Distributor the limited right, during
the term hereof to sell the Products within the Territory on a non_exclusive
basis, and Distributor hereby accepts such appointment. It is understood and
agreed that whereas Distributor shall be, Company's limited Distributor for
Products within the Territory, Company shall not directly compete against the
distributor in their area.
2. Term. Termination.
2.1 Unless sooner terminated in accordance with the provisions of
Section 2.2 below, and with the exception of existing business at the time
of termination for which the Distributors reserves the right to continue
through fruition, this Agreement shall commence on the date of shipment of
products as per the initial order attached hereto (Appendix 1) and shall
continue for a term of twelve (12) months (the Initial Term). Prior to the
end of the Initial Term, this Agreement will be automatically renewed for
an additional twelve (12) months without written confirmation of Company.
2.2 In the event, either party hereto shall be in breach or
non-compliance with any term of this Agreement, the aggrieved party shall
give written notice of such breach in writing to the offending party. The
offending party shall have thirty (30) days from the date of such notice to
cure such breach or non-compliance. In the event, the offending party shall
fail to cure such breach or noncompliance, the agreed party at the
expiration of said thirty-day period may terminate this Agreement.
2.3 Regardless of the status of the underlying Distributorship
Agreement, Distributor herein shall remain the specific Distributor on any
contract written by Distributor during the natural term of the herein
Distributor Agreement, for so long as the Distributor services the specific
contract in a commercially reasonable manner. If Distributor is no longer
able to perform the necessary and appropriate duties required to service
the customer, the account shall be tendered to the Company who shall take
reasonable steps to continue the service of the said customer.
3. Territory. Distributor shall be responsible for achieving certain sales
goals as may be determined by mutual consent with the Company and providing
related services to the customers within the Territory of California. The sales
goals shall be established after the first year following the effective date of
this agreement for the ensuing years. Additional Territories may be added from
time to time upon the Distributor's request and the Company's approval. The
company's decision on whether or not to allow Distributor to take on additional
Territory is final and without recourse. Distributor is hereby given Option to
distribute and sell company products in the TERRITORIES of Washington, Arizona,
Oregon and New Mexico as long as
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Distributor meets or surpasses the parameters set forth for doing business
within such TERRITORIES.
4.0. Responsibilities of Company.
4.1 Marketing Assistance and Advertising. Company shall provide
reasonable quantities of promotional literature regarding the Products. Any
promotional, literature or materials required beyond this shall be made
available to the Distributor at prices and conditions as outlined on
Exhibit A. Company shall also, on request of Distributor and to the extent
practicable and reasonable as determined by Company in its sole discretion,
provide sales support and technical support to Distributor. However,
Distributor is hereby authorized to take reasonably necessary steps to
publish information and other materials regarding the Company and products
as needed by Distributor for the promotion of the business, subject to
prior approval of the Company which shall not be unreasonably withheld or
delayed. Distributor is further authorized to establish, maintain, market
and distribute the products of the Company via the World Wide Web, the
Internet and eCommerce.
4.2 Defects, Product Liability. Company agrees that it will, at no
cost to Distributor and as Distributor's sole remedy therefor, replace or
repair Products that are found to be defective within fifteen months of
shipment to Distributor, and to hold Distributor harmless with respect
thereto; provided, that any such product liability is not due to the
negligence or misuse of the Distributor or Distributor's customer. Company
agrees to have Distributor named as an also named insured on any Product
Liability Insurance obtained by Company.
5.0 Responsibilities of Distributor.
5.1 Distributor agrees to devote its diligent best efforts, time,
attention, and energies to the performance of its duties under this
Agreement.
5.2 During the term of this Agreement and any extension thereof and
for a period of twelve (12) months following termination of this agreement,
Distributor shall not, directly or indirectly, promote the sale of, or
market, distribute or sell Products which are competitive with, or
comparable or similar to, Company's Products for or on behalf of any
person, company or entity other than Company.
5.3 Distributor acknowledges that Company possesses valuable technical
information and know-how relating to the design 9 possesses valuable
technical in specifications, content, manufacture, Processes and all
related technology used in connection with the design, manufacture and sale
of the Products. Further, Distributor acknowledges that this information
(Proprietary Information) is confidential and includes, as part thereof,
Trade Secrets belonging to Company. Distributor that during the term of
this A and for a period of five (5) years after the termi-confidential and
includes, agrees Agreement, nation of this Agreement, it will not (i)
disclose to any third person or (ii) use for its own xxxxx-respectively,
any Proprietary Information Of Company obtained by Distributor during the
term of this Agreement, unless such Proprietary Information shall first
become publicly available from sources other than Distributor. Provided,
however, that Distributor may make
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disclosures required by a valid order or subpoena issued by a court or
administrative agency of competent jurisdiction. In such event, Distributor
shall promptly notify Company of such order or subpoena to provide Company an
opportunity to protect its interest.
6.0 Price
6.1 Subject to adjustment as hereinafter provided, sales by Company of
Products ordered by Distributor hereunder shall be at the prices and terms
specified in the Price List attached hereto as Exhibit A (the Purchase
Price).
6.2 Company shall have the right at any time and from time to time
during the term hereof, to revise the Purchase Price and or the terms of
sale of the Products upon ninety (90) days prior written notice to
Distributor. Upon any such revision, the Price List in Exhibit A shall be
modified accordingly to reflect the revised Purchase Prices and or Terms of
Sale of the Products.
6.3 The Purchase Price is F.O.B. Company's location, and includes only
standard carton packaging. The Purchase Price does not include any
applicable sales, use, revenues, excise, or other taxes imposed by any
taxing authority. All such taxes imposed by any taxing authority shall be
the sole responsibility of the Distributor. Should the Company for any
reason whatsoever be required to pay any such taxes, all such taxes will be
added to Company's invoice as a separate charge to be paid by Distributor.
6.4 The Distributor hereby agrees to make payment in full for all
purchase, of Company's Products, Sales and Marketing literature and
products and any other related items such as taxes, delivery costs and
other charges, within thirty (30) days of shipment of such products or date
of invoice as the case may be which ever is greater.
6.5 Any amounts payable to Company hereunder which are not paid when
due shall thereafter bear interest at the rate of one and one-half percent
(1.5%) per month or the maximum amount permitted by applicable law,
whichever is less. Time is of the essence for all payments due hereunder,
and in the event any payment due Company is collected at law, or through an
attorney-at-law or under advice therefrom, or through a collection agency,
Distributor agrees to pay all costs of collection, including, without
limitation, all court costs and reasonable attorneys' fees.
7. Delivery and Risk. Sales by Company to Distributor under this Agreement
shall be F.O.B. Company's location. Distributor shall bear all risks of loss or
damage to the Products after they are delivered to the carrier at Company's
facilities. Any arrangements made or expenses incurred by Company for carriage
or insurance of the Products after they are
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delivered to the carrier shall be for the account of Distributor and promptly
paid or reimbursed to Company by Distributor.
8. Partial Deliveries. Company may deliver Products in partial shipments
and reserves the right to invoice for partial deliveries. Payments for partial
deliveries shall be made in accordance with the payment terms set forth in
Section 5 above. Company shall keep Distributor advised of the necessary lead
times for orders of varying sizes so that Distributor can maintain a proper
level of inventory at the local offices, which is expected to be approximately a
30 day supply. The lead time necessary for orders of new machines is
approximately 6 to 8 weeks; and the lead time for orders of chemicals is
approximately 14 to 21 days before delivery.
9. Limitations. Distributor shall not have or acquire any right, title or
interest in any trademark service xxxx or trade name that is now owned or
hereafter acquired by Company either used alone or in conjunction with other
words or names, or in the good will thereof, expressly granted herein. If
Distributor, in spite of this provision, acquires any such right, title or
interest by operation of law or otherwise, Distributor shall convey the same to
Company,
10. Insurance. Distributor shall maintain in force at all times general
public liability and product liability insurance in the amount of two (2)
million dollars and shall have issued to Company a certificate of insurance
naming company as also named insured.
11. Polygel Pick-up. Distributor shall arrange entirely at its expense to
pickup from its customers the reduced polystyrene (Polygel) and store at its
premises until such time that it has accumulated a minimum of ten (10) pallets
at which time Distributor shall so advise the Company or its designated
representative to have such polygel picked up at its premises. The Company or
its designated representative will make arrangements to have the polygel removed
from the Distributors premises within ten days of such notification. The polygel
is a non-hazardous material, and if any customer or the Distributor wants to
keep they may do so.
12. Warranty. All products sold hereunder shall be sold subject to
Company's standard terms of warranty in effect on the date of delivery.
13. Relationship of the Parties. The relationship between Company and
Distributor shall be that of independent distributor. Distributor shall not be
the agent of Company and shall have no authority to act on behalf of Company in
any manner except in the manner and to the extent that Company may expressly
agree to in writing. Persons retained by Distributor as employees or agents
shall not solely by reason thereof be deemed to be employees or agents of
Company. Distributor agrees to indemnify and hold Company harmless from and
against any and all liability or expense arising by its employees or agents.
reason of any act or omission of Distributor or
14. Governing Law. Regardless of the place of execution, place of
performance or otherwise, this Agreement and all amendments, modifications,
alterations or sup
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plements hereto, and the rights of the parties hereunder, shall be governed by
and construed and enforced in accordance with the laws of the State of
California for all arbitration proceeding (American Arbitration Rules), and
formal litigation in accordance with the laws of the State of Florida in the
county of Palm Beach.
15. Miscellaneous.
15.1. Contract Non-Assignable. This Agreement may not be assigned or
transferred by either party hereto, in whole or in part, without the prior
written consent of Company.
15.2 Notice. All notices, requests, demands or other communications,
required or permitted to be given or made hereunder shall be in writing and
delivered personally or sent by first class, certified or registered mail,
or by facsimile addressed to the intended recipient thereof at the address
and facsimile number set forth above (or to such other address or facsimile
number as either party may from time to time duly notify the other.) Any
such notice, demand Of communication shall be deemed to have been duly
given immediately (if given or made by confirmed facsimile), or three (3)
days after mailing, and in proving same it shall be sufficient to show that
the envelope containing the notice, demand or communication was duly
addressed, stamped and posted or that receipt of a facsimile message was
confirmed by a confirming facsimile message from the recipient.
15.3 Partial Invalidity. All rights and restrictions contained herein
may be exercised and shall be applicable and binding only to the extent
that they do not violate any applicable laws and are intended to be limited
to the extent necessary so that they will not render this Agreement
illegal, invalid or unenforceable. If any term of this Agreement shall be
held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the remaining terms
hereof shall constitute their agreement with respect to the subject matter
hereof and all such remaining terms shall remain in full force and effect.
To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid provision which
will implement the commercial purpose of the illegal, invalid or
unenforceable provision. In the event that any provision essential to the
commercial purpose of this Agreement is held to be illegal, invalid or
unenforceable and cannot be replaced by a valid provision which will
implement the commercial purpose of this Agreement, this Agreement shall be
void and of no force or effect.
15.4 Waiver. No failure on the part of any party hereto to exercise,
and no delay in exercising any right, power, or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or remedy by any such party preclude any other or further
exercise thereof or the exercise of any other right, power, or remedy. No
express waiver or assent by any party hereto to any breach of or default in
any term or condition of this Agreement shall constitute a waiver of or an
assent to any succeeding breach of or default in the same or any other term
or condition hereof.
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15.5 Successors. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
15.6 Headings. The headings as to the contents of particular
paragraphs are inserted only for convenience and shall not be construed as
part of this Agreement or as a limitation on the scope of any of the terms
or provisions of this Agreement.
15.7 Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter
hereof and this Agreement contains the sole and entire agreement between
the parties with respect to the matters covered hereby. This Agreement
shall not be modified or amended except by an instrument in writing signed
by or on behalf of the parties hereto. By way of illustration and not by
way of limitation, all orders submitted by Distributor for Products
hereunder shall be deemed to incorporate without exception all of the terms
of this Agreement notwithstanding any order form containing additional or
contrary terms and conditions.
IN WITNESS WHEREOF, Company and Distributor have caused this Agreement
to be executed by their duly authorized representatives as of the day and
year first above written.
COMPANY: DISTRIBUTOR:
INTERNATIONAL FOAM SOLUTIONS, INC. DIPPY FOOD'S, INC.
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BY: /s/ Xxxxxxx Xxxxxx BY: /s/ Xxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxx Xxxxxxxxx
Title: COO Title President
