DISTRIBUTION AND MARKETING AGREEMENT
This agreement ("Agreement") is entered into this 12th day of June,
2008, ("Effective Date") between Incoming, Inc. ("Incoming" or "the Company")
having its principal office at 0000 X.Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx and OOO "Propaganda" ("Propaganda" or "Distributor"), having its office
at Xxxxxxxxxx Xxxx, Xxx 00, Xxxxx 000,Xxxxxx, Russian Federation.
Whereas, Incoming is engaged in resale and distribution of American
Urban Streetwear and Hip Hop clothing labels ("Products");
Whereas, Propaganda is in the business of product distribution,marketing
and advertizing;
Whereas, Incoming desires to engage the Distributor for the purposes of
marketing and selling of American Urban Streetwear and Hip Hop clothing labels
in Russian Federation and former CIS countries; and
Therefore, in consideration of the following conditions set for the in
this Agreement, the parties agree to the following.
1. DEFINITIONS
"Customer" means a retail store or a local distributor of the Product.
"Products" means Hip Hop apparel including footwear and accessories and
Urban Streetwear including footwear and accessories.Incoming may add to,
delete from, or otherwise modify the Products on the Product List at any
time.
"Territory" means Russian Federation and former CIS countries.
2. PRODUCT TERMS
2.1 APPOINTMENT. Incoming hereby appoints Distributor, and Distributor
accepts such appointment, to act as a non-exclusive Distributor of Products only
to Customers located in the Territory. Sale of Products to other Distributors or
Distributor's affiliates is strictly prohibited.
2.2 PRICES. The prices paid by Distributor to Incoming for Products
shall initially be as set forth as per mutual agreement on a per item basis.
Incoming shall have the right, at any time, to change, alter, or amend Product
prices upon written notice. Distributor is eligible to receive price protection
in accordance with the guidelines determined by both parties to this Agreement.
Prices are exclusive of all taxes, insurance, and shipping and handling charges,
which are Distributor's sole responsibility.
3. ORDERING AND PAYMENT
3.1 ORDERS. Orders shall be in writing and be subject to acceptance by
Incoming. The terms and conditions of each order shall be as provided by this
Agreement, and the provisions of either party's form of purchase order,
acknowledgment or other business forms will not apply to any order
notwithstanding the other party's acknowledgment or acceptance of such form.
3.2 SHIPMENT. Shipment will be F.O.B. Incoming's specified warehouse
("Delivery Point"), freight collect, at which time title and risk of loss will
pass to Distributor. All freight, insurance and other shipping expenses from
Delivery Point, as well as any expenses related to Distributor's special packing
requests, will be borne by Distributor unless otherwise agreed to in writing by
Incoming.
3.3 PAYMENT. Subject to compliance with Incoming's credit requirements,
payments on orders will be due and payable in full ** days from the invoice
date. If Distributor is in default of its payment obligations, Incoming shall
give written notice of such default to Distributor. Upon receipt of such default
notice, Distributor shall have ** days to cure. If Distributor fails to cure
within the ** notice period, Distributor shall pay monthly service charges of
1.5% per month for any past due amounts. Incoming may in its sole discretion
change Distributor's credit terms and/or require C.O.D. payment for any
shipments.
4. DEFECTIVE PRODUCT RETURNS. Returns of defective Products will be processed
and consolidated for shipment biweekly to Incoming by Distributor. Returns of
defective Products will be paid for by Incoming when Incoming authorized
carriers are used. Return shipment charges via unauthorized carriers and all
customs or broker's fees are the responsibility of Distributor. Incoming
reserves the right to charge-back to Distributor shipping charges incurred on
those Products that were not at any point resold to Customers but were returned
as defective and no fault was found.
Distributor will be in material breach of this Agreement if it returns Products
as "defective" to Incoming when Distributor has not at any point resold such
Products to Customers, except that Distributor may return Products that were not
at any point resold to Customers that are in fact "defective."
5. DISTRIBUTOR'S OBLIGATIONS
5.1 MARKETING DEVELOPMENT. Distributor will aggressively market and
advertise the Products consistent with Distributor's marketing plans and
strategies. So long as Distributor is in compliance with this Agreement,
Distributor may participate in Incoming's Market Development Program.
5.2 INVENTORY/ SALES INFORMATION. Distributor will be required to
provide sell through and inventory information for all inventory locations via
an electronic link such as EDI or other standard data transfer and exchange
method. The method must be agreed to in advance by Distributor and Incoming.
5.3 DISTRIBUTOR COVENANTS. Distributor will: (i) conduct business in a
manner that reflects favorably at all times on Products and the good name,
goodwill and reputation of Incoming; (ii) avoid deceptive, misleading or
unethical practices that are or might be detrimental to Incoming or Incoming
Products; (iii) make no false or misleading representations with regard to
Incoming or Incoming Products; (iv) not publish or employ, or cooperate in the
publication or employment of, any misleading or deceptive advertising material
with regard to Incoming or Incoming Products; and (v) make no representations,
warranties or guarantees to customers or to the trade with respect to the
specifications of Incoming Products that are inconsistent with information
distributed by Incoming.
5.4 USE OF TRADEMARKS AND PROPRIETARY NOTICES.
5.4.1 TRADEMARKS OF THE PARTIES TO THIS AGREEMENT. During the
term of this Agreement, Distributor may use the trademarks,
trade names, logos and designations used by Incoming for
Incoming Products solely in connection with Distributor's
advertisement and promotion of Incoming Products, in
accordance with Incoming's then-current trademark usage
policies. Distributor shall not remove or destroy any
copyright notices, trademarks or other proprietary markings on
the Products, or other materials related to the Products. Upon
termination of this Agreement Distributor may continue to
advertise and promote the Products using Incoming's trademarks
and trade names until inventory depletion. Incoming may not
use Distributor's trade names, trademarks or service marks
without first obtaining Distributor's express approval.
5.4.2 OTHER'S TRADEMARKS. Each party shall use the other's
Trademarks in accordance with sound trademark and trade name
usage principles and in compliance with all applicable laws
and regulations of the United States (including without
limitation all laws and regulations relating to the
maintenance of the validity and enforceability of such
Trademarks) and shall not use the Trademarks in any manner
that might tarnish, disparage, or reflect adversely on the
Trademarks or the owner of such Trademarks. Each party shall
use, in connection with the other's Trademarks, all legends,
notices and markings required by law. No party may alter the
appearance of another's Trademarks in any advertising,
marketing, distribution, or sales materials, or any other
publicly distributed materials without the prior written
consent of the other party.
6. TERM AND TERMINATION
6.1 TERM. This Agreement shall commence on the Effective Date and
continue for twelve (12) months thereafter unless terminated earlier as provided
herein. The Agreement may be renewed for additional twelve (12) months upon
mutual agreement by the Parties to this Agreement.
6.2 TERMINATION WITHOUT CAUSE. Distributor or Incoming may terminate
this Agreement without cause, at any time, by written notice to the other party
not less than thirty (30) days prior to the effective date of termination. All
unfilled orders pending at the time of the date of such notice of termination
shall be deemed cancelled, and Incoming and Distributor hereby waive all claims
against the other in connection with the cancellation of such orders.
6.3 TERMINATION FOR BREACH. Incoming may terminate this Agreement, for
cause, by written notice to Distributor not less than ten (10) days prior to the
effective date of such notice in the event that: (i) Distributor fails to pay
past due invoices within thirty (30) days after notice that invoices are past
due; (ii) Distributor fails to resolve and remove from Incoming unauthorized
debits after a remedy period of 15 business days from date of debit, Distributor
violates any other material provision of this Agreement; or (iv) control of
Distributor is acquired, directly or indirectly, by a third party, or
Distributor is merged with a third party. Upon giving its notice of termination,
Incoming may alter its terms of sale, including credit terms, and take such
other action as may be consistent with the termination of Distributor as an
authorized Incoming Distributor.
6.4 TERMINATION FOR INSOLVENCY. At the option of Incoming or
Distributor, this Agreement shall terminate immediately if: (i) a receiver is
appointed for the other party or its property; (ii) the other party becomes
insolvent or unable to pay its debts as they mature or ceases to pay its debts
as they mature in the ordinary course of business, or makes an assignment for
the benefit of creditors; (iii) any proceedings are commenced by or for the
other party under any bankruptcy, insolvency or debtors' relief law; (iv) any
proceedings are commenced against the other party under any bankruptcy
insolvency or debtor's relief law, and such proceedings have not been vacated or
set aside within sixty (60) days from the date of commencement thereof; or (v)
the other party commences to dissolve under applicable corporate law statutes.
6.5 TERMINATION/EXPIRATION ACCOUNTING. All amounts payable by
Distributor to Incoming shall survive termination and become immediately due and
payable. In addition, Incoming shall have the right to repurchase unsold
Products in Distributor's inventory. Within ten (10) days following termination,
Distributor shall furnish Incoming with an inventory of unsold Products. Within
ten (10) days after receipt of such inventory, Incoming shall notify Distributor
in writing whether or not Incoming intends to repurchase from Distributor all or
part of such inventory at the original invoice price (less discounts, price
protection or other credits previously granted). Incoming shall pay all
transportation and other costs connected with shipping such Products to
Incoming.
7. WARRANTY
7.1 CUSTOMER WARRANTY. Incoming provides a Limited Warranty Statement to
Customers. Distributor will make available to Customers a copy of the Limited
Warranty Statement and will not make any representations or statements
inconsistent with such Limited Warranty Statement. Distributor shall have the
right to return at Incoming's expense and for full credit (if there are
sufficient funds to offset) or refund of the purchase price any products for
which the sale is prohibited by applicable local, state, or federal law,
ordinance, rule or regulation.
7.2 EXPRESS DISCLAIMER. INCOMING MAKES NO WARRANTIES OR REPRESENTATIONS
AS TO THE PRODUCTS, EXCEPT AS SET FORTH ABOVE. ALL IMPLIED WARRANTIES AND
CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE HEREBY DISCLAIMED.
8. LIMITATION OF LIABILITY. THE LIABILITY OF INCOMING AND ITS SUPPLIERS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY OF PRODUCTS HEREUNDER, SHALL
BE LIMITED TO THE ACTUAL AMOUNTS PAID BY DISTRIBUTOR TO INCOMMING FOR THE
PRODUCTS GIVING RISE TO SUCH DAMAGES, AND SHALL IN NO EVENT INCLUDE LOSS OF
PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INCOMING OR ITS SUPPLIER
IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9. CONFIDENTIALITY. The parties to this Agreement agree to maintain the
confidentiality of information relating to products, sales data, and other
business information shared by the parties and not generally known to the
public.
10.FORCE MAJEURE. Incoming and Distributor shall not be liable for delays or
failure to fulfill the terms of this Agreement due to causes beyond their
reasonable control. Such causes may include, but are not restricted to Acts of
God, fires, floods, strikes, accidents, riot, war, government interference,
rationing allocations and embargoes. In the event of a delay, the date or dates
for performance of this Agreement shall be extended for a period equal to the
time lost by reason of delay, provided that either party who is not affected by
any of such causes may terminate the Agreement immediately upon written notice
to the other party should any of such causes last over 45 days.
11.GENERAL
11.1 ASSIGNMENT. Neither party may assign, delegate, or transfer the
Agreement, or any of its rights or duties hereunder, without the prior written
consent of the other party. Any attempted assignment or delegation in violation
of this section shall be void. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties, their successors and permitted
assigns. Notwithstanding the foregoing, Incoming may assign its rights and
duties hereunder in connection with a merger, consolidation, spin-off, corporate
reorganization, acquisition, or sale of all or substantially all the assets of
Incoming.
11.2 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Nevada (other than its conflicts of law principles), excluding the
United Nations Convention on Contracts for the International Sale of Goods. The
parties hereby consent to the exclusive jurisdiction of and venue in the federal
and/or state courts located in the State of Nevada.
11.3 INDEPENDENT CONTRACTORS. In performing their respective duties
under this Agreement, each of the parties will be operating as an independent
contractor. Nothing contained herein will in any way constitute any association,
partnership, or joint venture between the parties hereto, or be construed to
evidence the intention of the parties to establish any such relationship.
Neither party will have the power to bind the other party or incur obligations
on the other party's behalf without the other party's prior written consent.
11.4 MODIFICATION AND WAIVER. No modification to this Agreement, nor any
waiver of any rights, will be effective unless assented to in writing by the
party to be charged, and the waiver of any breach or default shall not
constitute a waiver of any other right hereunder or any subsequent breach or
default.
11.5 NOTICES. Any required or permitted notices hereunder must be given
in writing at the address of each party set forth below, or to such other
address as either party may substitute by written notice to the other in the
manner contemplated herein, by one of the following methods: registered,
express, or certified mail, return receipt requested, postage prepaid; or
nationally-recognized private express courier. Notices will be deemed given on
the date received.
Incoming: 0000 X.Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Propaganda: Xxxxxxxxxx Xxxx, Xxx 00, Xxxxx 000
Xxxxxx, Xxxxxxx Federation
11.6 SEVERABILITY. If for any reason any provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions of this Agreement shall remain in full
force and effect.
11.7 LIMITATION OF ACTION. Any legal action arising out of this
Agreement shall be barred unless commenced within one (1) year of the act or
omission giving rise to the action. Such limitation shall not apply to any
actions asserted against Distributor by Incoming arising from any delinquencies
in payment for Products.
11.8 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto
constitute the entire and exclusive agreement between the parties hereto with
respect to the subject matter hereof and supersede any prior agreements between
the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective authorized representatives as of the date first above
written.
Incoming, Inc. OOO "Propaganda"
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
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Xxxx Xxxxxxxx, President Xxxxxx Xxxxxxx, CEO
