DISTRIBUTORSHIP AGREEMENT
Exhibit
10.3
THIS
DISTRIBUTORSHIP AGREEMENT (“Agreement”) is entered into as of this
23rd
day of
January, 2003, by and between Xxx Xxxxxx Trading Co., a Florida corporation,
(“Distributor”) and Xxx Xxxxxx Coffee Company, S.A., a Costa Rica corporation
(“Supplier”). Distributor and Supplier may sometimes be referred to individually
as the “Party” and collectively as the “Parties.”
RECITALS
WHEREAS,
Supplier is engaged in the manufacture, production, and supply of coffee (the
“Products”) and desires to grant Distributor the exclusive right to sell and
distribute the Products within the Territory (as defined in Section 1.02) on
the
terms and conditions set forth below; and
WHEREAS,
Distributor possesses the ability to promote the sale of the Products and
desires to develop demand for and sell the Products within the Territory;
and
WHEREAS,
Supplier is the owner of all right, title, and interest in and to the trademark
“Xxx Xxxxxx,” (the “Xxxx”), as more fully defined below; and
WHEREAS,
Distributor desires to acquire, in accordance with the terms and conditions
of
this Agreement the exclusive license to use the Xxxx as set forth
below.
NOW
THEREFORE, in consideration of the foregoing Recitals which are incorporated
into the operative provisions of this Agreement by this reference, and for
other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
ARTICLE
1.
GRANT
OF DISTRIBUTION RIGHTS
1.01 Exclusive
Grant.
On the
terms and subject to the conditions contained herein, Supplier hereby grants
to
Distributor the exclusive right to sell and distribute Products in the
Territory. Distributor accepts the appointment to market, sell, and distribute
Products in the Territory, and shall use its best efforts to promote the sale
and distribution of Products in the Territory. During the term of this
Agreement, Supplier shall not, either directly or indirectly, appoint or use
any
person or entity other than Distributor for the marketing, sale or distribution
of Products in the Territory.
1.02 Territory.
For
purposes of this Agreement “Territory” shall mean the United States and all
other countries and regions of the world.
1.03 Products.
For
purposes of this Agreement “Products” shall mean all products manufactured,
produced, or sold by Supplier.
1.04 Subdistributors.
Distributor may appoint subdistributors within the Territory for the
distribution and sale of Products within the Territory.
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ARTICLE
2.
PRICE
AND TERMS
2.01 Price.
The
Products and their prices shall be as set forth on Exhibit A. Supplier shall
have the right in its sole discretion to change, discontinue, or add to the
Products or to change any price for a Product listed on Exhibit A by providing
Distributor with thirty (30) days prior written notice of such change. A price
increase shall not apply to orders placed by Distributor before the notice
date
of the price increase, unless such order requests delivery more than thirty
(30)
days after the date of acceptance of the order. Distributor shall not be bound
to sell Products to its customers at the prices specified on Exhibit A, or
at
any other prices suggested by Supplier.
2.02 Orders.
Each
order submitted by Distributor shall be for no less than two hundred dollars
($200) of Products. Distributor shall order Products from Supplier by written
purchase order specifying, at a minimum, the Products ordered, the price for
the
Products, and the requested delivery date. Supplier shall use its best efforts
to deliver the Products by the delivery date stated in the purchase order,
and
shall advise Distributor in advance of any inability to make timely delivery
of
any Products ordered by Distributor.
2.03 Payment.
Distributor shall pay Supplier for Products in cash or immediately available
funds Net 30 days from date of Distributor’s receipt of Products. Distributor’s
payments for Products shall be in U.S. dollars unless the Parties have agreed
to
payment in another currency.
2.04 Taxes.
Distributor shall be solely responsible for the payment of any tax, duty or
other charge imposed by any state, locality or other governmental entity in
relation to the sale, transportation, manufacture, ownership, distribution
or
use of Products.
2.05 Delivery.
Supplier shall deliver all goods to Distributor’s designated carrier for
transportation to Distributor’s designated destination. All costs of
transportation shall be borne by Distributor, and all risks of loss or damage
shall pass to Distributor when the goods are delivered to Distributor at
Distributor’s destination.
ARTICLE
3.
TERM
AND TERMINATION
3.01 Term.
This
Agreement shall commence on the date first written above (the “Effective Date”)
and shall extend for a period of five years. Following the initial term, this
Agreement shall be renewed automatically in five year terms, with no further
action of the Parties necessary, unless either Party terminates by written
notice to the other no less than ninety days before the end of a
term.
3.02 Termination.
In the
event that either Party is in default of any term or condition of this Agreement
or fails to perform any obligation under this Agreement and such default or
failure continues unremedied for fifteen (15) days after receipt of written
notice, the other Party may terminate the Agreement on written
notice.
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3.03 Automatic
Termination.
This
Agreement terminates automatically, with no further act or action of either
Party, if a receiver is appointed for the other Party or its property, or the
other Party makes an assignment for the benefit of its creditors, or any
proceedings are commenced by, for or against the other Party under any
bankruptcy, insolvency or debtor's relief law, or Supplier is liquidated or
dissolved.
3.04 Effect
of Termination.
In the
event of termination, this Agreement shall remain applicable to any orders
for
Products that Distributor has previously placed and to any other orders that
may
be executed subsequent to the effective date of termination.
ARTICLE
4.
INSPECTION
AND WARRANTY
4.01 Inspection.
Distributor shall inspect the Products immediately on their arrival and shall
within thirty (30) days of their arrival give written notice to Supplier of
any
claim that the Products are defective, damaged or in short supply. If
Distributor shall fail to give such notice, the Products shall be deemed to
conform with the terms of the Agreement, and Distributor shall be bound to
accept and pay for the Products in accordance with the terms of the Agreement.
Supplier shall have the option in its sole discretion to request either the
return or the destruction of any Product found upon inspection to be damaged
or
defective. Returns of defective or damaged Products shall be at Supplier’s
expense. Supplier shall replace any such defective or damaged products or make
whole any short shipment within thirty (30) days of Distributor’s written
notice. Replacement Products shall be shipped to Distributor at Supplier’s
expense.
4.02 Limited
Warranty.
Supplier warrants that the Products shall be free of defects in materials and
workmanship for a period of one year from date of delivery to Distributor.
THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING
THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.03 Limitation
of Liability.
IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, SUSTAINED OR INCURRED
IN
CONNECTION WITH THE PRODUCTS OR CAUSED BY PRODUCT DEFECTS, REGARDLESS OF THE
FORM OF ACTION, WHETHER BY BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE
AND
STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN
OR
UNFORESEEN.
4.04 Indemnifications.
Distributor shall defend, indemnify and hold Supplier harmless from and against
any and all claims, costs, damages and liabilities (including attorneys’ fees)
incurred by Supplier as a result of any breach of this Agreement by Distributor
or any negligence by Distributor, its employees or agents. Supplier shall
defend, indemnify and hold Distributor harmless from and against any and all
claims, costs, damages and liabilities (including attorneys’ fees) incurred by
Distributor in relation to any breach of this Agreement by Supplier, any
negligence of Supplier, any claims of product liability, or any claims that
a
Product violates the copyright, trademark or trade secret rights of any third
party. Such defense, indemnification, and holding harmless shall include direct
payment or immediate reimbursement of all reasonable legal fees and other costs
incurred by the indemnified Party and its attorneys in defending against any
such claims.
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ARTICLE
5.
GENERAL
TERMS
5.01 Assignment.
This
Agreement may not be transferred or assigned by either Party without the prior
written consent of the other Party. Subject to the foregoing, the provisions
of
this Agreement shall inure to the benefit of the Parties’ successor and
assigns.
5.02 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with the laws of
the
State of California, notwithstanding any choice of law provisions to the
contrary.
5.03 Jurisdiction.
The
parties submit to the jurisdiction of the Courts of the County of Orange, State
of California or a Federal Court empanelled in the State of California for
the
resolution of all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration
award.
5.04 Authority.
Each
Party executing this Agreement warrants his authority to execute this
Agreement.
5.05 Relationship
of the Parties.
Distributor’s relationship with Supplier during the term of this Agreement shall
be that of an independent contractor. Neither Party shall have any authority,
express or implied, to assume or create any obligations, responsibility, or
liability on behalf of the other or to bind the other in any way whatsoever.
Each Party shall conduct its business in its own name and be solely responsible
for its acts, conduct and expenses, and the acts, conduct and expenses of its
employees and agents.
5.06 Notices.
Any
notice, request, instruction, or other document required by the terms of this
Agreement, or deemed by any of the Parties hereto to be desirable, to be given
to any other party hereto shall be in writing and shall be given by personal
delivery, overnight delivery, or mailed by registered or certified mail, postage
prepaid, with return receipt requested, to the addresses of the Parties as
follows:
|
(a)
|
To: “Supplier”
|
Xxx Xxxxxx Coffee Company, S.A.
POB 1217-1007
Centro Colon
Costa Rica
Attn: Xxxx X. Xxxxxx
|
|
| (b) | To: “Distributor” |
Xxx Xxxxxx Trading Co.
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx
X. Xxxxxxx, President
|
|
| (c) | With Copy To: |
Xxxxxx & Yap
00000
Xxxx Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Fax:
(000)
000-0000
Attn:
Xxxxx
Xxxxxx, Esq.
|
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The
persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by personal delivery or overnight
delivery in accordance with the provisions of this Section, said notice shall
be
conclusively deemed given at the time of such delivery provided a receipt is
obtained from the recipient. If notice is given by mail in accordance with
the
provisions of this Section, such notice shall be conclusively deemed given
upon
receipt and delivery or refusal.
5.07 Attorneys’
Fees.
If any
legal action, arbitration or proceeding is brought for the enforcement of this
Agreement or in relation to this Agreement, the prevailing Party shall be
entitled to recover reasonable attorneys’ fees and other costs incurred, in
addition to any other relief to which such Party may be entitled.
5.08 Nonwaiver.
The
failure of either Party at any time to require performance of the other Party
of
any provision of this Agreement shall not affect in any way the full right
to
require such performance at any time thereafter.
5.09 Entire
Agreement.
This
Agreement constitutes the complete and entire Agreement between Supplier and
Distributor, and there are no other oral agreements, understandings,
representations or warranties, express or implied, between the Parties. No
modification or amendment of this Agreement shall be binding upon the Parties
unless executed in writing by the Parties hereto.
5.10 Independent
Counsel.
The
Parties hereby acknowledge and agree that they have had the opportunity to
have
this Agreement reviewed by their own independent counsel and therefore agree
that this Agreement shall be deemed to have been jointly drafted and shall
not
be construed in favor of or against either Party.
5.11 Severability.
The
provisions of this Agreement shall be severable. In the event that any provision
is held to be invalid, void or otherwise unenforceable, by a court or
arbitration panel of competent jurisdiction, the remaining provisions shall
remain enforceable to the fullest extent permitted by law.
5.12 Counterparts.
This
agreement may be executed in counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
5.13 Facsimile
Signatures.
The
Parties hereto agree that this Agreement may be executed by facsimile signatures
and such signatures shall be deemed originals. The Parties further agree that
within ten days following the execution of this Agreement, they shall exchange
original signature pages.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
first written above.
|
DISTRIBUTOR:
Xxx Xxxxxx Trading Co.
a Florida corporation
|
SUPPLIER:
Xxx Xxxxxx Coffee Company, S.A.,
a Costa Rica corporation
|
|
/s/ Xxxx X.
Xxxxxxx
By: Xxxx
X. Xxxxxxx
Its: President
|
/s/ Xxxx X.
Xxxxxx
By: Xxxx X. Xxxxxx
Its:
President
|
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Exhibit
A
PRODUCTS
AND PRICE LIST
|
Product
|
Price
|
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