EXHIBIT I
FORM OF SOURCING AGENCY AGREEMENT
-81-
Exhibit I
XXXXXX, INC.
ZUELLIG BOTANICALS, INC.
SOURCING AGENCY AGREEMENT
This Sourcing Agency Agreement (this "Agreement") is made as of the
[Closing Date] (the "Effective Date") by and between Xxxxxx, Inc. ("Xxxxxx"), a
Colorado corporation, and Zuellig Botanicals, Inc. ("BI"), a Delaware
corporation doing business as Botanicals International, Inc. The parties are
sometimes referred to individually as a "Party" and collectively as the
"Parties." Other terms are defined in Section 1.
RECITALS
X. Xxxxxx is in the businesses, among others, of acquiring natural
products and derivatives ("Raw Materials," as more fully defined in Section 1
(a)(5)) from sources throughout the world and processing such Raw Material in
the manufacturing and marketing of nutraceutical products. Xxxxxx maintains a
purchasing department for the purpose of enabling it to acquire Raw Materials,
which department is capable of acting a purchasing agent for BI.
B. BI is in the business of businesses, among others, of acquiring Raw
Materials from sources throughout the world and processing such natural products
and derivatives in the manufacture and marketing of botanical powders, teas, and
spices. BI does not have a purchasing department through which to acquire Raw
Materials.
C. The Parties desire that Xxxxxx be the exclusive purchasing agent for
BI with respect to Raw Materials, under the terms and conditions of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Parties agree as follows:
1. DEFINITIONS. (a) In this Agreement, the following expressions, when
capitalized as indicated, shall have the meanings ascribed to them in this
Section 1 or in another section as indicated, and cognate expressions shall have
corresponding meanings.
(1) "Affiliate," with respect to either Party, means any
individual, corporation, partnership, or other entity controlling,
controlled by, or under common control with such Party. For such purpose
the terms "controls," "is controlled by," or "is under common control with"
refers to the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of an entity, whether
through the ownership of voting securities, by contract, or otherwise.
Neither Party shall be an Affiliate of the other Party.
(2) "Business Day" means a day that is not a Saturday, Sunday,
or holiday of the Federal Government of the United States of America. If
any notice is required to be given within a stated number of Business Days,
or any other action is required to be taken within a stated number of
Business Days, then the notice shall be given, or the action taken, before
5:00 Xxxxxx Time on the last day of the stated number of Business Days.
(3) "Commission Rate" is defined in Section 3(a).
(4) "Effective Date" is defined in the first paragraph of this
Agreement.
(5) "Raw Material" means natural products and derivatives that
may be used by a Party in the manufacture or marketing of the Party's
nutraceutical products, botanical powders, teas, or spices. The term does
not include energy, office supplies, shop materials, equipment or other
such items.
(6) "Raw Material Price" means the price payable by a Party for
Raw Material, excluding amounts payable for (a) transportation, (B)
insurance covering risk of loss in delivery, or sales, use, tariff,
import/export duties, excise tax, customs duties, or other taxes or
impositions, but reduced by allowances or credits for rejections, returns,
settlements, and claims.
(7) "Raw Material Quantity" means a quantity of Raw Material,
expressed in kilograms.
(8) "Sourcer" means a person, other than a Party or an Affiliate
of a Party, who may sell Raw Materials.
(9) The "Term of this Agreement" is defined in Section 8.
(b) In this Agreement, the following expressions, whether or not
capitalized, shall have the meanings ascribed to them in this Section 1(b), and
cognate expressions shall have corresponding meanings.
(1) "Offer" means offer to purchase or offer to sell, as the
context requires.
(2) "Purchase" includes every contract of purchase of, contract
to buy, or acquisition of a thing for value. "Offer to purchase" includes
every attempt or offer to acquire, or solicitation of an offer to sell, a
thing for value.
(3) "Sale" or "sell" includes every contract of sale, contract
to sell, or disposition of a thing for value. "Offer to sell" includes
every attempt or offer to dispose of, or solicitation of an offer to
purchase, a thing for value.
(4) "Third person" excludes an Affiliate of either Party.
2. XXXXXX AS PURCHASING REPRESENTATIVE FOR BI. (a) Xxxxxx shall be BI's
exclusive agent for BI's purchase of Raw Material from Sourcers.
(b) If BI desires to purchase Raw Material, it shall give notice
thereof (the "Solicitation Notice") to Xxxxxx, which Solicitation Notice shall--
(1) State the specifications for the desired Raw Material and
state such other terms and conditions, such as Raw Material Quantity,
delivery dates, Raw Material Price, and payment terms, as BI deems
necessary or appropriate to enable Xxxxxx to obtain offers from Sourcers to
sell Raw Material to BI on terms and conditions that may be satisfactory to
BI; and
(2) Instruct Xxxxxx to proceed in accordance with this
Section 2.
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BI may state any or all of its terms and conditions, including specifications,
as ranges. BI shall add to or clarify the information contained in its
Solicitation Notice as Xxxxxx may reasonably request to enable Xxxxxx to more
efficiently or more readily acquire Sourcers' offers on terms and conditions
that will be satisfactory to BI.
(c) Upon receipt of BI's Solicitation Notice and such additional or
clarifying information as Xxxxxx may request, Xxxxxx shall, as purchasing
representative for BI, use its reasonable efforts to obtain offers from
Sourcers, wherever located, matching or approximating the specifications and
other terms and conditions stated by BI in the Solicitation Notice and giving
notice of, and forwarding to BI, such Sourcers' offers as are obtained.
(d) Upon its receipt of any Sourcer's offer forwarded to it by
Xxxxxx, BI may, in its discretion, by notice given to Xxxxxx, (A) instruct
Xxxxxx to accept, as BI's purchasing agent, the Sourcer's offer (B) instruct
Xxxxxx to counteroffer, as BI's purchasing agent, to the Sourcer, or determine
not to accept the offer. If BI does not give any such notice to Xxxxxx withing
five Business Days after Xxxxxx forwarded the Sourcer's offer to BI, then BI
shall be deemed to have determined not to accept that offer and to have
instructed Xxxxxx to continue to pursue other offers pursuant to
Section 2(b).
(e) Notwithstanding the foregoing, if Xxxxxx obtains a Sourcer's
offer that matches the specifications and other terms and conditions stated in
BI's Solicitation Notice (as the same may have been added to or clarified) in
all material respects, then Xxxxxx may accept that offer on BI's behalf in lieu
of forwarding the offer to BI for its acceptance, counteroffer, or nonacceptance
under Section 2(d). Xxxxxx shall giver prompt notice to BI of such acceptance.
(f) If BI purchases Raw Material from a Sourcer (whether or not
pursuant to an offer forwarded by Xxxxxx to BI or accepted by Xxxxxx on BI's
behalf pursuant to Section 2(e)), BI shall pay to Xxxxxx a commission equal to
the product of the Commission Rate applicable at the date of delivery multiplied
by the Raw Material Quantity purchased, such commission being paid as deliveries
of the Raw Material are made to BI, whether such deliveries occur during the
Terms of this Agreement or after its termination.
(g) If, in the course of purchasing Raw Material from a Sourcer for
BI, Xxxxxx also purchases Raw Material from the Sourcer for its own purposes,
Xxxxxx shall share with BI, proportionately, any volume discount in the Raw
Material Price obtained by reason of the two purchases.
3. COMMISSION RATE. (a) The commission rate (the "Commission Rate")
payable by BI to Xxxxxx for purchases made through Xxxxxx as purchasing agent
shall be determined periodically based upon the cost to Xxxxxx of its purchasing
department and the Raw Material Quantity purchased through that purchasing
department by Xxxxxx and BI, such determination to be as provided in this
Section 3.
(b) An assumed Commission Rate of $0.05 per kilogram of Raw Material
Quantity purchased by BI shall initially be applied to Raw Material delivered to
BI during the partial calendar month, if any, in which the Effective Date occurs
and the first six full calendar months following the Effective Date.
(c) During the seventh full calendar month following the Effective
Date, Xxxxxx shall determine and give BI notice of the following items,
determined for the first six full calendar months following the Effective Date--
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(1) The accountable cost ("Department Cost") of Xxxxxx'x
purchasing department, including salaries, space, share of general and
administrative expenses, and all other costs properly allocated to the
purchasing department;
(2) The aggregate Raw Material Quantity purchased through the
purchasing department for BI (the ""BI Weight");
(3) The aggregate Raw Material Quantity purchased through the
purchasing department for Xxxxxx, for any of its Affiliates, and for
third person (if any)(the "Xxxxxx Weight");
(4) The product obtained by multiplying the Department Cost by
a fraction the numerator of which is the BI Weight and the denominator
of which is the sum of the BI Weight and the Xxxxxx Weight (such
product being referred to as the "BI Department Cost").
(5) The quotient obtained by dividing the BI Department Cost
by the BI Weight.
Xxxxxx shall also provide BI with such supporting information as Xxxxxx
reasonably deems necessary or appropriate to confirm its determination, and
such additional information as BI may reasonably request for that
confirmation.
(d) The quotient determined pursuant to Section 3(c)(5) shall be
the actual Commission Rate applicable to deliveries of Raw Material made
during the partial calendar month, if any, in which the Effective Date occurs
and the first six full calendar months following the Effective Date. The
Parties shall adjust for any difference between the assumed Commission Rate
stated in Section 3(b) and the actual Commission Rate by (1) BI paying to
Xxxxxx any additional commission earned at the actual Commission Rate over
commissions theretofore paid at a lower assumed Commission Rate or (2) Xxxxxx
repaying to BI any excess of actual commissions theretofore paid at a higher
assumed Commission Rate over the commissions actually earned at the actual
Commission Rate, as the case may be.
(e) The quotient determined pursuant to Section 3(c)(5) shall also
be the assumed Commission Rate applicable to deliveries of Raw Material made
during the second period of six full calendar months following the Effective
Date, and in the calendar months following the end of that second period,
Xxxxxx shall make determinations of the Department Costs and aggregate
kilograms delivered, for such second period, as if Section 3(c) applied to
that second period. The Parties shall then apply Section 3(d) to determine
the actual Commission Rate for that second period and shall make the
adjustments in commissions paid that contemplated by the Section 3(d), in
each case as if Section 3(c) and Section 3(d) applied to that second period.
The Parties shall thereafter repeat these procedures with respect to each
successive six calendar month period thereafter so long as deliveries are
made to BI of Raw Materials purchased through Xxxxxx.
4. TIME FOR ACTIONS; COOPERATION. (a) The Parties acknowledge that
this Agreement does not always provide specific time periods for the making
of offers and acceptances or the taking of other actions. The Parties agree
that each such action for which a specific time period is not provided shall
be taken reasonably promptly considering the circumstances as are then known
to the Party taking or required to take the action.
(b) Each Party will cooperate with the other Party in its
performance under this Agreement, to the end that the offers, acceptances,
purchases, and sales contemplated herein may be
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facilitated Without limiting the generality of the foregoing, each Party shall
promptly provide to the other such detailed information as the other Party
may request from time to time regarding the specifications of Raw Material
that is sought or offered and the terms and conditions of purchases or sales
sought or offered regarding Raw Material, in order that each Party may have a
complete understanding of such specifications, terms and conditions. In the
event Xxxxxx is under a duty under Section 2 to seek offers from Sourcers to
sell Raw Material to BI, and Xxxxxx determines in good faith that the Raw
Material is not available on terms and conditions that would be acceptable to
BI, it may so inform BI and decline to expend further efforts to obtain such
offers unless and until BI modifies its terms and conditions.
(c) In the event the Parties do not otherwise provide with respect
to any particular purchase of Raw Material by one Party from the other Party
pursuant to this Agreement, payment of the Raw Material Price by one Party to
the other Party shall be made within thirty days after the invoice date for
the Raw Material.
5. PLANNING, FORECASTING, REVIEWING, (a) Xxxxxx and BI shall meet
periodically to forecast BI's needs for Raw Materials and anticipated
availabilities of Raw Materials, including such matters as availability of
Raw Material, Sourcer location, prices, qualities and the like, and to
develop plans for the acquisition of Raw Materials meeting BI's needs. It is
anticipated that such meeting shall e quarterly, but each such meeting shall
be held at a date, time, and place specified by either Party in a notice to
the other.
6. INSURANCE. Each Party shall maintain the following insurance
coverage, either (a) during the Term of this Agreement with claims-incurred
coverage or (b) during the Term of this Agreement and for a period following
the Term of this Agreement sufficient to cover all claims which may be for
events occurring during the Terms of this Agreement with claims-made coverage;
(1) Comprehensive general liability insurance, endorsed to
provide for contractual liability, with limits of $1,000,000 combined
single limit each occurrence; and
(2) Professional liability (also covering errors and
omissions), with limits of, with limits of $1,000,000 combined single
limit each occurrence.
All policies for such coverage shall be endorsed to waive subrogation in
favor of the other Party, and policies referred to in Section 6(b)(1) shall
name, as additional insureds, (except (e) above), Company, it's the other
Party and its officers, directors and employees. Each Party shall provide to
the other Party, at the other Party's request from time to time, certificates
of insurance evidencing the required coverage on terms reasonably acceptable
to the other Party. Each Party shall require its insurance carriers to give
the other Party thirty days' written notice prior to the cancellation of any
policies required hereunder.
7. BI INDEMNITY. BI shall indemnify and hold Xxxxxx harmless from any
damage resulting to Xxxxxx by reason of BI's failure to perform its
obligations with respect to any Sourcer's offer to sell, or any counteroffer
to purchase, that BI has made on BI's behalf, as contemplated herein.
8. TERM AND TERMINATION. (a) The term of this Agreement (the "Term of
this Agreement") shall begin on the Effective Date and shall continue until
terminated on the earliest of any of the following dates:
(1) Such date, on or after the second anniversary of the
Effective Date, that either Party may state as the date for termination
of the Term of this Agreement in notice given to the other Party at
least three months before the stated date;
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(2) Such date as the Parties may state as the date for
termination of the Term of this Agreement in a writing signed by both
Parties (which writing may be in counterparts);
(3) Such date as Xxxxxx may state in a notice given to BI
stating that the Term of this Agreement is terminated as of such date
because control of BI has changed, if such notice is given before the
date that is sixty days after Xxxxxx receives notice from BI of a change
of control of BI, which notice identifies the person or persons who have
acquired control of BI in the change of control that constitutes the
basis for Xxxxxx'x termination under this provision;
(4) Such date as either Party (the "Noticing Party") may
state in a notice given to the other Party (the "Other Party") at least
thirty days before such date, which notice states that the Term of this
Agreement will terminate as of that date by reason of a material breach
of this Agreement by the Other Party--which breach is identified in the
notice with sufficient specificity to enable the Other Party to
understand the nature of the breach and what, if anything, must be done
to cure it--if the Other Party has not cured such breach before that date.
(5) Such date as either Party (the "Noticing Party") may
state in a notice given to the other Party (the "Other Party") stating
that the Term of this Agreement is terminated because (A) the Other
Party has made an assignment for the benefit of creditors; (B) the Other
Party has admitted insolvency; (C) the Other Party has instituted
voluntary proceedings in bankruptcy; (D) involuntary proceedings in
bankruptcy or other insolvency proceedings have been instituted against
the Other Party, if such proceedings have not been dismissed within
sixty days after their institution; or (E) an application has been made
for receivership with respect to the Other Party or any material part of
its assets or business, if such application has been granted or has not
been dismissed within sixty days after the filing thereof.
(b) Notwithstanding the termination of the Term of this Agreement
for any reason, all obligations of a Party that have accrued prior to such
termination shall remain due and owing in accordance with the terms of this
Agreement, and the provisions of this Agreement that by their nature are to
continue after the termination of the Term of the Agreement shall remain in
full force and effect, including Section 6 through Section 22.
9. INDEPENDENT CONTRACTOR; NO AGENCY; NO DELEGATION. Nothing herein
shall be construed to make either Party a partner, agent, or employee of the
other Party. Each Party shall in all respects be an independent contractor of
the other Party in its performance under this Agreement and neither Party
shall in any way represent itself to third persons to be a partner, agent, or
employee of the Other Party.
10. CONFIDENTIALITY. (a)(1) Subject to Section 10(a)(2), "Confidential
Information" means any information that related to a Party or any of its
Affiliates (the Party or such Affiliate, or both, as the context may
require, being herein referred to as the "Discloser") or to the
business, property, products, services, operations, sales, customers,
history, or prospects of the Discloser, whether or not such information
is written or contained in tangible form, patented or patentable, or
copyrighted or subject to copyright. The term "Confidential Information"
shall include, without limitation, any and all developments;
inventories; discoveries; ideas; conceptions; creations; improvements;
trade secrets; business secrets; production or manufacturing techniques;
systems; processes; methods; formulae; experimental works; engineering
data or drawings; test results; survey results; sales or marketing data;
accounting or financial data; business information; information concerning
third person sources of intellectual property; and product or service
descriptions or information which relates to the Discloser or to the
business, property, products, services, operations, sales, customers,
licensees,
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licensors, history, or prospects of the Discloser. The term "Confidential
Information" shall also include any information of any other person
(herein, the "Third Person Discloser") which has come into the possession
of the Discloser in circumstances which, as such circumstances are known to
BI, should reasonably cause BI to conclude that a duty of confidentiality
was imposed upon the Discloser in favor of the Third Person Discloser.
(2) Notwithstanding Section 10(a)(1), the term "Confidential
Information" shall not include information which a Party shows
(A) Is now in or hereafter comes into the public domain
through no fault of that Party; or
(B) Was known to that Party prior to February 1, 1998; or
(C) Is acquired by that Party or any of its Affiliates
from persons who are not employed or engaged by, and who are not under
any duty of confidentiality for the benefit of, the Discloser or the
Third Person Discloser.
It is understood that some Confidential Information may, at least in part,
consist of a synthesis of information that is in the public domain; and it
is, therefore, understood that no exclusion contained in clause
10(a)(2)(A), 10(a)(2)(B), or 10(a)(2)(C) shall operate to exclude from the
definition of "Confidential Information" such synthesis of otherwise public
domain information, unless it can be shown that such synthesis is itself in
the public domain.
(b) The Party receiving Confidential Information shall (1) use
the Confidential Information only for purposes of performing its obligations
under this Agreement, and (2) shall not disclose any Confidential Information
in any form to any person other than to its and its and its Affiliates'
employees and agents who have a need to know the Confidential Information in
order that it can perform its obligations under this Agreement, each of whom
is under the same restrictions regarding use and disclosure of the Confidential
Information as is the Party under this Section 10.
(c) This Section 10 shall apply only to information that is
disclosed by a Discloser to the other Party during the Term of this Agreement.
This Section 10 shall continue to apply to covered information so long as the
same remains Confidential Information in fact, notwithstanding the earlier
termination of the Term of this Agreement.
(d) In the event that a Party breaches this Section 10, the
Discloser shall be entitled to injunctive relief, to such damages as it may
actually sustain as a result of such breach, and to all costs and expenses,
including attorneys' fees, incurred in enforcing this Section 10 and its rights
hereunder. The remedies provided in this Section 10 are cumulative, and not
exclusive, and are in addition to all remedies otherwise provided by law.
11. FORCE MAJEURE. (a) For purposes of this section, a "Force Majeure
Event" shall be any event or condition that (1) is not known to the Excused
Party (as defined below), as of the Effective Date, to exist, (2) is not
reasonably foreseeable as of the Effective Date, and (3) is not reasonably
within the control of the Excused Party. Without limiting the preceding
sentence, any of the following shall constitute a Force Majeure Event if the
same meets the conditions expressed in clause (2) of that sentence: natural
disaster; fire; flood; storm; war; riot; civil disturbance; malicious damage;
epidemic; accident; breakdown of plant or machinery; strike; lockout; labor
action; material shortage of, or material increase in the expense of
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obtaining, or other circumstances materially affecting the supply of,
workers, materials, transport, raw materials, or energy; or acts of
governmental authority.
(b) Any period of time in which a Party (the "Excused Party")
must perform any obligation under this Agreement shall be extended by the period
of time that a Force Majeure Event prevents such performance in whole or in
material part or renders such performance so difficult or costly that such
performance is commercially unreasonable, and the Excused Party shall not be
liable for loss or damage incurred by the other Party by reason of any delay in
such performance during such period of extension. If the Force Majeure Event is
of such a nature that the performance of the obligation will reasonably require
an additional period of time following cessation of the Force Majeure Event,
then the period of time in which the Excused Party must perform the obligation
shall be further extended by such additional period of time, and the Excused
Party shall not be liable for loss or damage incurred by the other Party by
reason of any delay in such performance during such additional period of time.
(c) The Excused Party shall promptly notify the other Party in
writing of the commencement and termination of the Force Majeure Event and shall
document any evidence of the commencement, existence, and termination of the
Force Majeure Event and of its effect on the ability of the Excused Party to
perform its obligation under this Agreement.
(d) If the period of time in which a Party must perform any
material obligation hereunder is extended for a period of more than six
consecutive months pursuant to the preceding provisions of this section, either
Party may terminate this Agreement, without liability to the other Party for
such termination, by giving notice of termination given to the other Party
prior to the end of the period of extension.
(e) The foregoing provision of this section shall not excuse
any obligation to pay any amount which becomes due under this Agreement prior
to termination of this Agreement, but payment for any performance the time
for which is extended pursuant to such provisions may be suspended until such
performance is rendered.
12. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereof.
13. NOTICES. (a) Each notice and other communication to be given to a
recipient Party under or with respect to this Agreement (including instruments
tendered as full satisfaction of debts and other communications concerning
disputed debts) shall be in writing (including by telegraph, telex, telecopier,
and other available communication facilities providing written copy to the
recipient Party) and shall be effective--
(1) when actually delivered (A) to the individual whom
the recipient Party had last identified by notice as being authorized to
receive notices and communications under this Agreement (such individual
being referred to as the "Notice Individual"), wherever that Notice
Individual may be found, or (B) to the attention of the Notice Individual
at such address as the recipient Party last designated by notice (such
address being referred to as the "Notice Address") (any notice transmitted
by telegram, telex, telecopy or other such communication facility shall
also be delivered by mail or courier as is also permitted under this
section but shall be deemed to have been given when telegram, telex,
telecopy, or other such communication has been transmitted if that
transmission is the earliest date of delivery);
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(2) on the day delivery is guaranteed by the courier
services, after receipted delivery to a courier service which guarantees
delivery by a stated day, under circumstances in which such guaranty is
applicable, if the notice or other communication is addressed to the
Notice Individual at the Notice Address;
(3) on the earlier of (A) delivery or (B) three Business
Days after mailing by United States certified mail, postage and fees
prepaid, if the notice or other communication is addressed to the Notice
Individual at the Notice Address.
(b) Actual delivery of a notice or other communication to a
recipient Party, if made at the Notice Address for the recipient Party, shall
be deemed to have been made to the Notice Individual if (A) the Notice
Individual is identified on the notice or communication (or on a label on the
exterior of any envelope or package containing the notice or communication, as
the case may be) and (B) the delivery is made to an individual whom the
noticing or communicating Party reasonably believes is likely to transmit the
notice or communication to the Notice Individual. Delivery of a notice or
other communication to the recipient Party at a place other than the Notice
Address shall be effective only if it is to the Notice Individual for the
recipient Party. The initial Notice Addresses, and the initial designations
of Notice Individuals are as follows:
For Xxxxxx:
Xxxxxx, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Chief Operating Officer
Facsimile: 000-000-0000
Confirming telephone: 000-000-0000
For BI:
Botanical International, Inc.
0000 Xx Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, President
Facsimile: 000-000-0000
Confirming telephone: 000-000-0000
14. INTERPRETATION OF GOVERNING LAW; JURISDICTION AND SERVICE OF PROCESS.
Agreement shall be construed as though prepared by both of the Parties. This
Agreement, and the performances of the Parties hereunder, shall be governed by
the laws of the State of Colorado without giving effect to the principles of
conflicts of laws that would otherwise provide for the application of the
substantive law of another jurisdiction. Subject to Section 12, any action or
proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement must be brought against either Party in the courts of
the State of Colorado or, if it has or can obtain jurisdiction, in the United
States District Court for such state, and each Party hereby consents for itself
and its successors and assigns to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred
to in this section may be served on either Party anywhere in the world,
whether within or without the State of Colorado, and may also be served upon
either Party in the manner provided above for giving notices to a Party under
this Agreement.
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15. INUREMENT AND ASSIGNMENT. This Agreement shall be binding upon, and
shall inure to the benefit of, the Parties and their heirs, personal
representatives, successors, and assigns, but neither Party may assign this
Agreement or any right or obligation hereunder to any person without the
written consent of the other Party. No assignment of this Agreement or of any
right or obligation hereunder shall relieve the assignor of its obligations
hereunder without the written consent of the other Party.
16. NO THIRD PERSON BENEFICIARIES. This Agreement creates no rights
benefitting third persons, and no third person shall have any right to
enforce any provision hereof, except as may be specifically provided herein.
If any right benefitting a third person is specifically provided herein, the
same may be amended (including deletion) by the Parties in the manner provided
herein for amendments of this Agreement, without the consent of such third
person, notwithstanding that the third person may have justifiably changed
position in reliance on such provision prior to such amendment; and the third
person shall be bound by such amendment effective as of the date specified by
the Parties or, if no date is specified, as of the date of this Agreement.
17. MODIFICATION AND WAIVER. This Agreement may not be modified except
by a writing signed by the Party or Parties to be burdened by the effects of
the modification. Neither Party shall be deemed to have waived any right or
remedy under or with respect to this Agreement unless such waiver is expressed
in a writing signed by such Party. No waiver of any right or remedy under or
with respect to this Agreement by a Party on any occasion or in any circumstance
shall be deemed to be a waiver of any other right or remedy on that occasion
or in that circumstance nor a waiver of the same or of any other right or
remedy on any other occasion or in any other circumstance.
18. REMEDIES CUMULATIVE. The remedies provided in this Agreement are
cumulative, and not exclusive, and are in addition to all remedies otherwise
provided by law.
19. SEVERABILITY. If any provision in this Agreement is held to be
invalid or unenforceable on any occasion or in any circumstance, such holding
shall not be deemed to render the provision invalid or unenforceable on any
other occasion or in any other circumstance nor to render any other provision
hereof invalid or unenforceable, and to that extent the provisions of this
Agreement are severable; provided, however, that this provision shall not
preclude a court of competent jurisdiction from refusing so to sever any
provision if severance would be inequitable to one or more of the Parties.
20. HEADINGS AND INTERPRETATION. Headings and captions contained in
this Agreement are solely for the convenience of the Parties and are not to
be considered in interpreting or construing this Agreement or the Parties'
rights, remedies, and obligations hereunder. The words "herein", "hereof", and
"hereunder", when used in this Agreement, refer to the Agreement in its
entirety. The word "include" and its derivations mean by way of example and
not by way of exclusion or limitation. Words in the singular include the
plural and words in the plural include the singular, according to the
requirements of the context. Words importing a gender include all genders. All
references to days shall be calendar days unless otherwise expressly stated.
When the last day prescribed for performing an act falls on Saturday, Sunday or
a legal holiday, the performance of such act shall be considered timely if it
is performed on the next succeeding day which is not a Saturday, Sunday or legal
holiday. All dollar amounts referred to in this Agreement are in lawful
money of the United States of America.
21. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof and supersedes
all prior oral or written agreements between the Parties with respect to the
subject matter hereof. This Agreement is one of several "Transaction Documents"
as that term is defined in that certain "Acquisition Agreement" between Xxxxxx
and Xxxxxxx North America, Inc.
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22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which together shall be deemed to constitute but one and the same instrument.
This Agreement shall be effective if each Party has executed and delivered at
least one counterpart hereof.
[Signatures follow]
IN WITNESS WHEREOF, the Parties have executed and delivered this Sourcing
Agency Agreement as of the date first stated above.
XXXXXX, INC. ZUELLIG BOTANICALS, INC.
By: _______________________________ By: ___________________________________
Title: ____________________________ Title: ________________________________
Printed name: _____________________ Printed name: _________________________
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