Exhibit 10.29
DISTRIBUTORSHIP AGREEMENT
This Agreement is entered into effective this 1st day of January, 2003, by
and between Xxxxx Foods Inc., A Cooperative, Three Concord Farms, 000 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Xxxxx'x"), and Master Distributors, Inc.
d/b/a Atlantic Beverage Company, 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
("Distributor").
WHEREAS, Xxxxx'x manufactures food products including the Products as more
fully described herein and is the owner of certain trademarks, including but not
limited to the xxxx "Xxxxx'x";
WHEREAS, Distributor desires to be appointed to sell and distribute
Xxxxx'x Products throughout the Territory pursuant to the terms and conditions
of this Agreement;
IT IS AGREED AS FOLLOWS:
1. Definitions. As used herein, the following terms shall mean:
(a) "Products" means Xxxxx'x fruit juice and fruit juice drinks packaged
in 16 fluid ounce glass or plastic bottles and other Xxxxx'x juice
products that Xxxxx'x may, at the time of order, manufacture or
market for distribution in the United States, and in particular, in
the Territory.
(b) "Proprietary Marks" means the Trademarks and the Trade Dress.
(c) "Territory" means the geographic area described in Attachment "A."
(d) "Trade Dress" means all packaging designs, graphics, layout,
coloration, vignettes, and configurations, and all of the foregoing
in relation to each other, used in connection with the Products or
developed for use in connection with the Products, including on
display or vending equipment, either prior to the execution of this
Agreement or while this Agreement is in effect and whether created
by or under the authority and direction of Xxxxx'x or another.
(e) "Trademarks" means the trademarks "Xxxxx'x" and the Xxxxx'x Banner
design, and other trademarks of Xxxxx'x used in connection with the
sale or marketing of the Products.
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2. Authorization.
(a) Subject to Xxxxx'x rights or retained authority and on the terms and
conditions of this Agreement, Xxxxx'x hereby grants to Distributor
and Distributor hereby accepts the right for the term of this
Agreement for and only in the Territory to sell and distribute, but
not to produce, the Products marketed by Xxxxx'x under the
Proprietary Marks.
(i) Subject further to Section 2(b)(iv), for 16 ounce bottled juice
products only, the right of distribution granted to Distributor
hereunder of the Products in the Territory shall be an exclusive
first opportunity for all channels of trade, except for sales to
military installations and sales to vending distributors or vending
accounts.
(ii) No further right, license, opportunity or authority is granted to
Distributor, and Distributor is not granted any right, license or
authority to produce the Products, directly or indirectly, anywhere,
or to distribute the Products, directly or indirectly, outside the
Territory, or to sell or distribute the Products to any party for
ultimate resale to consumers outside the Territory.
(b) Distributor acknowledges and agrees that Xxxxx'x has and retains the
unfettered rights, now or in the future, to
(i) Eliminate any or all of the Products from the Territory at any
time in its sole discretion, with no compensation due to
Distributor;
(ii) Sell or otherwise deal, directly or indirectly, in or with any
of the Products, except the 16 ounce bottled juice products,
anywhere, whether inside the Territory or outside; and
(iii) Sell or otherwise deal, directly or indirectly, in or with the
16 ounce bottled juice products outside the Territory
(iv) Directly sell the 16 ounce bottled juice products inside the
Territory other than with or through Distributor, subject to
crediting Distributor with an intrusion fee per case sold directly
by Xxxxx'x inside the Territory of ten (10) % of Xxxxx'x case price
of the same product to Distributor; except that, for sale by Xxxxx'x
to a National Account, Distributor shall not be entitled to an
intrusion fee but shall, have the first opportunity to fulfill that
contract as to distribution inside the Territory and receive the
contracted price per case delivered.
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3. Territory.
(a) Distributor shall not (in relation to the Products), directly or
indirectly, seek customers, establish any branch, or maintain any
distribution depot outside of the Territory.
(b) Distributor shall not, directly or indirectly, accept unsolicited
orders for Products from customers located outside the Territory.
Xxxxx'x shall include a similar prohibition in all its Distribution
Agreements for 16 ounce bottled juice products.
(c) Distributor shall make reasonable efforts to refer to Xxxxx'x any
and all such unsolicited orders from customers located outside the
Territory, with no right to compensation therefor.
(d) It is understood and agreed that the purpose of describing the
Territory is to assure Xxxxx'x of obtaining complete geographic
coverage of the Products, to encourage Distributor to engage in
promotional activities and to provide service necessary for the
efficient marketing of the Products, to enable Xxxxx'x to control
and monitor the distribution of the Products in compliance with any
applicable statutory developments and general legal principles, and
to establish an area in which Xxxxx'x can evaluate Distributor's
performance of this Agreement.
(e) In the event of Distributor's direct distribution, shipment,
transfer or sale of the Products outside the Territory or indirect
distribution, shipment, transfer or sale of the Products outside the
Territory where Distributor knew or should have known that such
activity was occurring, Distributor shall pay to Xxxxx'x a fee as
liquidated damages equal to the sum of (I) the amount of marketing
and promotional allowance paid to Distributor by Xxxxx'x for such
transshipped cases, and (II) the number of such transshipped cases
multiplied by $2.00 per 12 pack case, or $4.00 per 24 pack case. The
foregoing liquidated damages are acknowledged as reasonable by the
parties and as a method of compensating Xxxxx for the additional
administrative expense of investigating, monitoring and remedying
transshipments of the Products outside of the Territory and its
damages resulting from such transshipment. Distributor's payment of
liquidated damages shall not affect Xxxxx'x right of termination
provided for elsewhere in this Agreement. Nothing in this provision
or elsewhere in this Agreement shall provide Distributor any claim
against Xxxxx'x for damages arising from the sale in the Territory
of any Products by a party other than Xxxxx'x.
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4. Term.
(a) This Agreement shall be effective as of January 1, 2003 and unless
sooner terminated in accordance with the provisions of this
Agreement, this Agreement shall continue in effect for an initial
term ending December 31, 2005 (the "Initial Term").
(b) Subject to Section 9 and further subject to agreement on a Marketing
Plan for the next Renewal Term in accordance with Section 6, this
Agreement shall be automatically renewed for successive periods of
two (2) years ("Renewal Term"), not to exceed two (2) Renewal Terms,
each expiring on December 31, provided that, for each renewal,
Distributor has complied with all of the terms and conditions of
this Agreement and any amendments thereto.
(c) Renewal, or the absence of notice of nonrenewal, shall not be a
waiver of any breach or failure to perform any obligation of this
Agreement.
5. Sale and Purchase of Products.
(a) Distributor shall purchase all of its requirements for the Products
from Xxxxx'x. The Products will be sold by Xxxxx'x to Distributor
and delivered to Distributor's warehouse(s) at the prices and in
accordance with the terms of shipment determined by Xxxxx'x from
time to time. Attachment A hereto sets forth the current prices and
terms of shipment for the sale of the Products to Distributor.
Xxxxx'x, however, reserves the right to change the prices and terms
of shipment upon sixty (60) days' written notice to Distributor.
(b) The terms of payment for all sales of the Products to Distributor
shall be net thirty (30) days after the date of invoice, provided,
however, that payment may be required prior to shipment if Xxxxx'x
reasonably deems itself insecure in respect of Distributor's ability
to pay for the Products ordered. Without waiving any right or remedy
Xxxxx'x may otherwise have, Xxxxx'x reserves the right to refuse to
sell Products to Distributor during any period of time in which
there are overdue invoices outstanding from Xxxxx'x to Distributor.
(c) All sums due or payable by Distributor to Xxxxx'x shall be paid in
Concord, Massachusetts (or at such other place designated by Xxxxx'x
in written advice to Distributor) and shall be paid on or before the
due date without any reduction or diminishment on account of claims,
set-offs, counterclaims or the like. All payments not received in
full according to such terms shall bear a post-maturity charge of
fifteen percent (15%) per annum.
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(d) Distributor shall pay all fees, excise, use, sales, or other taxes
that may be due or imposed upon the sale of the Products by Xxxxx'x
to Distributor or otherwise in connection with Distributor's
performance of this Agreement.
(e) In the event of any inconsistency between the terms set forth in
this Agreement and any terms of sale appearing in any other
documentation between the parties, the terms of this Agreement shall
control.
(f) Xxxxx'x will attempt to ship all orders from Distributor for the
Products on the shipment date(s) requested. If, however, at the time
of Xxxxx'x receipt of Distributor's order, Xxxxx'x is unable to meet
the requested shipment date(s) due to a backlog of previously
accepted but unfilled or incomplete orders or due to any other
circumstance beyond the reasonable control of Xxxxx'x, then Xxxxx'x
may choose not to accept such order for the requested shipment date
by so notifying Distributor and providing an alternative shipment
date.
(g) No order shall be binding upon Xxxxx'x until accepted by it.
(h) Distributor shall be solely responsible for the delivery of Product
to, submission of bills to, and collection of all sums due from, all
of its customers and accounts.
6. Agreements by Distributor.
(a) Sales and Marketing Plan.
(i) Distributor agrees to vigorously develop and increase the sale
of Xxxxx'x 16 ounce bottled juice products throughout the entire
Territory, to secure extensive distribution of such products, and to
develop and maintain the goodwill of customers and prospective
customers and their acceptance of the Products.
(ii) During the Initial Term, or the first year of the Initial Term
if the Initial Term exceeds one year in duration, Distributor shall
achieve a minimum sales volume in the Territory of 250,000 cases of
the Products. Within thirty (30) days of the execution of this
Agreement, Xxxxx'x and Distributor will agree upon a Marketing Plan
for the Initial Term, or the first year of the Initial Term if the
Initial Term exceeds one year in duration (the "Annual Marketing
Plan"). The Annual Marketing Plan will include the above minimum
sales volume as well as a description of Distributor's marketing
activities in furtherance of this Agreement and a description of
Xxxxx'x marketing activities in support.
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(iii) No later than sixty (60) days before expiration of the first
year of the Initial Term and each year thereafter during the Initial
or any Renewal Term, if any, Xxxxx'x and Distributor in good faith
shall endeavor to agree upon a Marketing Plan for the following
calendar year for sale and distribution of 16 ounce bottled juice
products inside the Territory. The Marketing Plan will include a
description of Distributor marketing activities in furtherance of
this Agreement, a description of Xxxxx'x marketing activities in
support of Distributor's marketing activities, and a minimum sales
volume for Distributor for the Territory for the following Renewal
Term. If the parties fail to reach agreement on a new minimum sales
volume, one will be determined by adjusting the existing sales
volume by an amount equal to the percent change in performance
experienced for the balance of Xxxxx'x Distributor Network (other
than Distributor) over the previous 12 months. For purposes of
establishing this new minimum sales volume, only distributors who
have carried Xxxxx'x for at least 12 months will be used.
Distributor shall achieve such minimum sales volume for the
Territory for that Term.
(iv) If Distributor does not achieve the minimum sales volume for
the Territory set forth in the Annual Marketing Plan for any year of
the Initial Term or any Renewal Term, Xxxxx'x may, at its option and
in its sole discretion, elect to either terminate this Agreement
during the Initial Term or not to renew this Agreement for any
Renewal Term, provided that Xxxxx'x has provided the marketing
support described in the then- current Annual Marketing Plan.
(b) Product Mix. Distributor agrees to carry, at all times during the
term of this Agreement (including any renewal thereof) a minimum of
seven (7) Product flavors in 16 oz. bottles.
(c) Competinq Products. Distributor agrees that during the term of this
agreement it shall neither sell nor distribute any other brand of
noncarbonated beverages containing fruit juice, except that
Distributor may sell or distribute products sold under the brand
name "Apple & Eve, Fairlee, Switch and Maaza". Furthermore,
Distributor agrees not to manufacture, sell, or distribute, directly
or indirectly, any product whose trademark, tradename or other
description imitates, simulates or could be confused with the
Proprietary Marks.
(d) Pallet Exchange. The Products will be delivered to Distributor
packed on standard CHEP 40 X 48 GMA pallets or other pallets
(collectively "Pallets"). Distributor shall be solely responsible
for returning to CHEP or other pallet company the same number of
Pallets in the same size and of the same quality and condition,
ordinary wear and tear excepted, as the Pallets Distributor received
with the delivery of the Products. Distributor agrees to
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pay any charges assessed against Xxxxx'x as a result of
Distributor's failure to timely return the Pallets.
(e) Customer Field Service. Distributor shall perform field services for
the Products in the Territory as required by Distributor's customers
including, without limitation, the stocking of Distributor's
customers with properly rotated supplies of the Products.
(f) Use of Proprietary Marks. Distributor shall not publish, cause to be
published, or distribute any advertising or other materials which
describe or pertain to any Products or contain the Proprietary Marks
unless the materials are furnished or approved in writing by
Xxxxx'x. Further, Distributor shall not use the Proprietary Marks on
Distributor's trucks or stationery except upon Xxxxx'x advance
written approval. Xxxxx'x reserves the right, on notice to
Distributor, to withdraw any such approvals and to request changes
with respect to any previously approved use by Distributor of the
Proprietary Marks.
(g) Inspection. Distributor shall permit inspection of its operation and
methods and of the equipment and materials used in the advertising,
selling or distribution of the Products at its plant, warehouse or
other facility by Xxxxx'x agents or representatives on reasonable
notice during normal business hours. Distributor agrees to maintain
a place of business that is sanitary, clean and suitable for the
business conducted by Distributor.
(h) Records and Reports. Distributor shall maintain complete and
accurate records of its performance under this Agreement, including
without limitation sales records, tax receipts, shipping documents
and government approvals. Distributor shall permit such records to
be examined and verified by Xxxxx'x representatives at all
reasonable times during the term and following any termination of
this Agreement, with or without prior notice, and shall retain such
records for at least three (3) years following the close of the
calendar year to which they pertain. At least ninety (90) days prior
to the destruction of any such records, Distributor shall notify
Xxxxx'x that it intends to destroy such documents and shall permit
Xxxxx'x to collect the original copies of any such documents or to
make photocopies or extracts of same. If requested by Xxxxx'x,
Distributor shall furnish, at no cost to Xxxxx'x, suitable office
space on its premises for temporary use by Xxxxx'x representatives
during any examination period.
Distributor agrees to provide Xxxxx'x with such periodic sales data
as Xxxxx'x may request from time to time, including without
limitation, the amount of sales for each Product flavor.
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(i) Leqal Compliance. Distributor and Xxxxx'x shall comply with all
local, state and federal laws, ordinances, rules and regulations now
in effect or enacted hereafter pertaining to the conduct of their
respective businesses and the advertisement, sale or distribution of
the Products. Distributor shall inform Xxxxx'x of any such
ordinances, rules and regulations that may affect Distributor's
performance of this Agreement.
(j) Advertisements. Distributor shall not use, publish or distribute any
advertisements or other materials describing or pertaining to the
Products without first providing a reasonable number of samples of
such materials to Xxxxx'x and obtaining Xxxxx'x written approval
therefor. Xxxxx'x reserves the right, on notice to Distributor, to
withdraw any such approvals and to request changes with respect to
advertisements or other materials describing or pertaining to the
Products or Xxxxx'x.
(k) Sales by Distributor. Products shall be sold by Distributor for its
own account. Distributor shall have full responsibility for all
matters relating to such sales for its own account, including,
without limitation, all collection and credit risks.
(l) Indemnity and Insurance. Distributor hereby assumes full
responsibility for and shall indemnify and hold Xxxxx'x harmless
from any liability, loss, expense (including reasonable attorneys'
fees and disbursements) fine or claim paid or incurred by Xxxxx'x
involving or arising out of: (i) a failure by Distributor to meet
any obligation to Xxxxx'x; (ii) any injury or death to any persons
or injury or damage to any property or business resulting from or in
connection with the storage, handling, distribution, sale, or
transportation of the Products; and/or (iii) any third party claim
that Distributor misrepresented its authority or made any
contractual commitment not expressly authorized by this Agreement;
provided, however, that Distributor's obligation hereunder shall in
no way require defense or indemnification regarding any liability,
loss, expense or claim to the proportional extent that the same
arises proximately from any act or omission of Xxxxx'x with respect
to any of the Products, for which Xxxxx'x shall indemnify
Distributor. Xxxxx'x reserves the right to participate by counsel of
its own choosing in any defense which is being provided to Xxxxx'x
under the terms of this Paragraph.
At its own expense, Distributor shall maintain, with insurers
acceptable to Xxxxx'x, commercial general liability insurance to
include products liability and contractual liability coverages as
well as vendors coverage. Minimum coverage limits will be a combined
single limit of $1,000,000. Xxxxx'x shall be named an additional
insured. Commercial auto liability insurance shall also be
maintained with combined single limits of $1,000,000. Distributor
shall also maintain statutory workers' compensation coverage
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and employers liability coverage with a minimum limit of $100,000.
Certificates of insurance shall contain a 30 day prior written
notification clause to Xxxxx'x for cancellation or material changes
in coverage. Distributor shall send the certificates of insurance to
Xxxxx'x Risk Management Department within (60) days of execution of
this Agreement.
(m) Recall or Withdrawal of Product from Customer Location. Distributor
agrees to promptly implement any recall or withdrawal of Product
delivered by Distributor that may be ordered by Xxxxx'x or any
regulatory agency. Xxxxx'x reserves the right o designate
disposition of the recalled or withdrawn Products. Xxxxx'x will
reimburse Distributor for the actual costs of such implementation
directly attributable to manufacturing quality problems with the
Products.
7. Intangible Property Rights.
(a) Ownership. Distributor acknowledges Xxxxx'x exclusive right, title
and interest in and to the Proprietary Marks, the validity of all
registrations thereof, that Xxxxx'x is the sole owner of the same
and all goodwill relating thereto and that Distributor shall not, by
reason of this Agreement or otherwise, acquire any right, title or
other ownership interest therein other than the limited privilege of
use contemplated by this Agreement. The use by Distributor of any of
the Proprietary Marks and all goodwill arising therefrom shall inure
solely to the benefit of Xxxxx'x. Distributor agrees and undertakes
not to contest, challenge or infringe the Proprietary Marks either
during or after the termination of this Agreement.
Distributor shall not do or permit to be done any act calculated to
prejudice, affect, impair, or destroy Xxxxx'x title and interest in
and to the Proprietary Marks. Distributor shall notify Xxxxx'x of
any infringement of the Proprietary Marks by any person, firm or
corporation and shall cooperate fully with Xxxxx'x in the defense
and protection of the Proprietary Marks. Xxxxx'x is solely
responsible for the protection of the Proprietary Marks and
Distributor will not take any action in this regard without the
express written consent of Xxxxx'x. Distributor shall notify Xxxxx'x
of any potential infringements of Xxxxx'x intangible property
rights. Distributor undertakes fully, and without reservation
whatsoever to render to Xxxxx'x assistance in connection with any
matter pertaining to the protection of its Proprietary Marks.
Xxxxx'x does not warrant or represent that the use of the
Proprietary Marks in the Territory will not infringe the rights of
any third party. Xxxxx'x shall not be liable in any way if for any
reason any one or more of the Proprietary Marks may no longer be
used or any one or more of the Products may not longer be sold in
the Territory.
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(b) Use by Distributor. Distributor shall sell Products only in the
original unaltered packaging provided by Xxxxx'x and Distributor
shall not by means of over-labeling, re-packaging or otherwise
change, alter or amend the Product or the packaging without the
prior written consent of Xxxxx'x. Distributor shall not distribute
or sell any Product that is stale, obsolete, damaged, adulterated or
otherwise defective.
The only permitted use of the Proprietary Marks by Distributor shall
be those approved by Xxxxx'x in writing in accordance with Sections
6(f) and 6(j) of this Agreement. Examples of uses that may be
approved include use in advertisements and display materials, on
Distributor's trucks, and on Distributor's stationery and business
cards. Any such materials that incorporate any of the Proprietary
Marks shall clearly indicate Xxxxx'x ownership thereof. Distributor
agrees that it will not include any of the Proprietary Marks as part
of the trade or business name of Distributor's company. Distributor
shall comply with requirements issued from time to time by Xxxxx'x
with respect to the use of the Proprietary Marks and shall not
release or permit the release of any advertising, promotional or
other material using the Proprietary Marks without the prior written
consent of Xxxxx'x. Distributor shall not at any time either during
or after the termination of this Agreement use, or authorize others
to use, any other xxxx or name in conjunction with the Proprietary
Marks or any other trademark, service xxxx or trade name confusingly
similar to the proprietary Marks.
8. Confidential Information.
Distributor shall at all times keep confidential and not use for any
purpose, other than the performance of services on Xxxxx'x behalf pursuant
to this Agreement, information concerning the terms of this Agreement and
all information pertaining to Xxxxx'x, its products, affairs and its
actual or potential customers obtained in connection with Distributor's
performance of this Agreement. Xxxxx'x expressly reserves the right, in
addition to the recovery of damages, to enjoin Distributor from disclosing
or using for its own purposes any confidences, secrets and any other such
trade or other information of Xxxxx'x.
9. Termination.
(a) By Either Party. Either Xxxxx'x or Distributor may terminate this
Agreement effective immediately if:
(i) The other party shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent or shall file any petition or
answer seeking reorganization, arrangement, liquidation or similar
relief or shall file an
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answer admitting the material allegations of a petition against it
for any such relief; or
(ii) The other party becomes insolvent or fails to pay its debts
when they come due; or
(iii) Within 60 days after the commencement thereof, any proceeding
against the other party seeking reorganization, arrangement,
liquidation or similar relief shall not have been dismissed; or
(iv) The other party terminates its existence or ceases to do
business; or
(v) The other party commits a breach of any Obligation imposed upon
it by this Agreement and does not cure such breach to the
satisfaction of the terminating party within thirty (30) days after
receiving written notice thereof.
(b) By Xxxxx'x. Without waiving any right or remedy Xxxxx'x may
otherwise have and notwithstanding Section 4, Xxxxx'x may terminate
this Agreement effective immediately:
(i) Upon any breach by Distributor of Section 7 or Section 10.B of
this Agreement; or
(ii) Upon any breach by Distributor of any other term or condition
of this Agreement, including all monetary obligations to Xxxxx'x,
provided Distributor did not cure the breach within thirty (30) days
of being notified of the breach; or
(iii) Upon any sale, transfer, lease, assignment or other
disposition, whether by operation of law or otherwise, of more than
fifty (50) percent of Distributor's stock or assets or upon the
occurrence of any transaction which results in a change of ownership
or control of Distributor, unless Xxxxx'x has expressly consented in
writing hereto; or
(iv) If Distributor commits any act or fails to take any action that
adversely and/or substantially affects the interest of Xxxxx'x with
respect to the promotion, importation, distribution, sale or
exploitation of the Products or the Proprietary Marks.
(c) In the event that Xxxxx'x terminates this Agreement for reasons
other than those specified in subsections (a) and (b) of this
Section 9, Xxxxx'x shall provide Distributor with 90 days
termination notice and shall pay to Distributor as liquidated
damages an amount equal to one dollar ($1.00) per case (regardless
of the case size or configuration then in effect) for each case of
Xxxxx'x 16 oz. Products sold to distributor by Xxxxx'x in the 12
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month period immediately preceding the month in which Xxxxx'x
provided Distributor notice of termination.
(d) Effect of Termination. On termination of this Agreement for any
reason, including expiration:
(i) Any indebtedness which may then be owing or which is to become
due and owing by Distributor to Xxxxx'x shall become due and payable
immediately;
(ii) Distributor shall immediately discontinue the use of the
Proprietary Marks in connection with the Products, its corporate or
other business names and any other manner or use whatsoever;
(iii) If Distributor has trucks bearing the Proprietary Marks,
Distributor will immediately repaint such trucks in colors which
cannot be confused with the color scheme of the Proprietary Marks
and will be immediately removed from such trucks all Proprietary
Marks;
(iv) Distributor hereby acknowledges that it shall not be entitled
to any payment or compensation from Xxxxx'x, including, without
limitation, any payment in respect of the advertising or sales
promotion of the Products or the loss of any goodwill attributable
to this Agreement. Distributor hereby agrees that the resale prices
it charges its customers for the Products shall constitute its full
and exclusive compensation;
(v) Xxxxx'x shall have the option to buy back from Distributor, at
the price that Distributor purchased such Products from Xxxxx'x, any
or all unused Products that Distributor may have in inventory,
except that Xxxxx'x shall be obligated to so buy back unused
Products in marketable condition upon expiration of the final
Renewal Term of this Agreement;
(vi) All permitted advertising and promotional materials relating to
the Products that Distributor has in its possession or under its
control shall be returned to Xxxxx'x. Only if this return is upon
expiration of the final Renewal Term of this Agreement, Xxxxx'x will
reimburse Distributor for Distributor's cost of acquiring these
materials;
(vii) All copies of any written confidential information pertaining
to Xxxxx'x, its products, affairs and its actual or potential
customers that Distributor has obtained in connection with its
performance of this Agreement shall be returned to Xxxxx'x.
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(viii) Xxxxx'x may proceed to sell and distribute the Products in
the Territory in such manner as Xxxxx'x may xxxx appropriate,
including without limitation transactions with Distributor's
accounts.
10. Miscellaneous Provisions.
(a) Warranties by Xxxxx'x. The Products sold to Distributor shall when
shipped be fit and wholesome for human consumption and salable by
Distributor in the ordinary course of business. THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
On any breach of warranty by Xxxxx'x, Distributor's exclusive remedy
shall be replacement of defective Products or a credit for the
landed cost thereof to Distributor. XXXXX'X SHALL NOT BE LIABLE FOR
ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES AND THE SAME ARE
HEREBY EXPRESSLY EXCLUDED.
(b) Assignment. Since this Agreement requires the performance of
personal services by Distributor, neither this Agreement nor any
part thereof nor interest therein shall be sold, assigned,
transferred, pledged, mortgaged, leased, licensed, or in any other
way or manner encumbered, or disposed of, in whole or in part, by
Distributor, nor shall this Agreement pass by operation of law or in
any other manner. In the event of the sale of all of Distributor's
stock or assets where the purchaser desires to maintain the Xxxxx'x
distributorship, Distributor and purchaser will (i) seek Xxxxx'x
consent to an assignment of this Agreement; (ii) cooperate fully
with any review Xxxxx'x may desire to make of purchaser's
capability, experience, resources, business activities or other
considerations; and (iii) make no assignment without Xxxxx'x prior
written consent, which consent will not be unreasonably withheld.
Any assignment by Distributor in violation of this section shall be
null and void and shall entitle Xxxxx'x, at its sole discretion, to
terminate this Agreement effective immediately.
(c) Relationship of the Parties. Distributor's relationship to Xxxxx'x
is that of independent contractor. Nothing in this Agreement shall
create between Xxxxx'x and Distributor the relationship of principal
and agent, joint venturers, partners, or any other similar or
representative relationships, and Distributor shall not hold itself
out as an agent, representative, partner or joint venturer of
Xxxxx'x. Distributor shall not make for or on behalf of Xxxxx'x, or
subject Xxxxx'x to, any contract, agreement, warranty, guarantee,
representations, assurance or other obligation.
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(d) Remedies Cumulative. Neither failure nor delay on the part of
Xxxxx'x or Distributor to exercise any right, remedy, power or
privilege provided for herein or by statute or by law, or in equity
or otherwise shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power or privilege
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
(e) Notices. Any notice, request, demand and other communication
hereunder shall be in writing and shall be deemed to have been duly
given if delivered by hand or by guaranteed overnight delivery
service with receipt, or mailed by first class, registered or
certified mail, return receipt requested, postage and registry fees
prepaid, addressed:
If to Distributor: If to Xxxxx'x:
Master Distributors, Inc. Xxxxx Foods Inc., A Cooperative
0000 Xxxxxxx Xxxxx 0 Xxxxxxx Xxxxx
Xxxxxx, XX 00000 000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Legal Department
(f) Force Majeure. Whenever performance by a party of any of its
obligations hereunder, other than the payment of money due, is
substantially or completely interrupted or prevented by reason of an
act of God, strike, lockout, labor trouble or other industrial
disturbance, transportation dislocation, shortage of supply,
casualty, civil strife or a circumstance beyond the reasonable and
good faith control of the party required to act, such performance
shall be excused for the period during which such state of affairs
continues, provided, however, that if such state of affairs
continues beyond a period of one hundred eighty (180) days, this
Agreement may be terminated at the option of the party whose
performance is not affected.
(g) Entire Agreement. This Agreement and the Attachments hereto which
are incorporated in this Agreement by reference constitute the
entire agreement and understanding between the parties and supersede
and cancel all prior agreements with respect to the subject matter
hereof. No change or modification of any of the provisions of this
Agreement shall be effective unless in writing signed by the duly
authorized representatives of the parties and any such change or
modification shall not be effective until executed by both parties.
The provisions of this Agreement shall not be binding on either
party unless and until this Agreement has been signed by both
parties.
(h) Governing Law; Jurisdiction. The validity, construction and effect
of this Agreement and any dispute between the parties with respect
to the subject
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matter hereof (and all performance related thereto) shall be
governed, enforced and interpreted under the laws of the
Commonwealth of Massachusetts applicable to agreements made and to
be performed therein. Any controversy or claim arising out of or
relating to this Agreement which cannot be resolved informally
between the parties shall be commenced in the state court located in
Cambridge Massachusetts or the federal court located in Boston,
Massachusetts and both parties agree that they shall be subject to
personal jurisdiction in these courts.
(i) Headings. The headings contained in this Agreement are not to be
used for interpretation of this Agreement, but rather have been
placed herein solely for the convenience of the parties.
(j) Severability. If any condition, term or covenant of this Agreement
shall at any time be held to be void, invalid, or unenforceable,
such condition, covenant or term shall be construed as severable and
shall not in any way affect or render void, invalid or unenforceable
any other condition, covenant or term of this Agreement, which shall
remain in full force and effect.
Master Distributors, Inc. By: Xxxxx Foods Inc., A Cooperative
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
----------------------- ------------------------
Title: President/CEO Name: Xxxxx X. Xxxxxxxxx
Name: Xxxxxx Xxxxxxx Title: Senior Vice President, Sales and
Date: June 24, 2003 Marketing
Date: July 2, 2003
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Attachment A
Territory of Atlantic Beverage Company
In the State of Maryland, the counties of Harford, Baltimore, Xxxx Arundel,
Prince George's, Xxxxxxxxxx, Xxxxxx, Xxxxxxx, Xxxxxxxxx, plus the City of
Baltimore;
In the state of Virginia, the counties of Prince Xxxxxxx, Fairfax, Arlington,
Loudon (25%), and the city of Alexandria;
and the District of Columbia.
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