DSTRBTR AGR FOR IMPORT
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
between
ＡBC CORPORATION
○○
Abeno-ku, Osaka 596-8655
Japan
and
Date:
DSTRBTR AGR FOR IMPORT
TABLE OF CONTENTS
ARTICLE 1. DEFINITION
ARTICLE 2. APPOINTMENT
ARTICLE 3. PURCHASE AND SALE; PRICE; PAYMENT; INSPECTION;
DELIVERY
ARTICLE 4. INSURANCE
ARTICLE 5. PRODUCT MODIFICATIONS; NEW PRODUCTS
ARTICLE 6. SUB-DISTRIBUTORS
ARTICLE 7. PATENTS, TRADEMARKS AND TRADENAMES
ARTICLE 8. SALES PROMOTION; TECHABCAL ASSISTANCE
ARTICLE 9. WARRANTY
ARTICLE 10. INDEMNITY
ARTICLE 11. CONFIDENTIALITY
ARTICLE 12. TERM AND TERMINATION
ARTICLE 13. FORCE MAJEURE
ARTICLE 14. GENERAL PROVISIONS
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EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT made as of __________, 199_, by and between
(full registered name of Seller) , a (country or state under which Seller is
incorporated) corporation having its principal office located at (full address of
Seller) ("SELLER"), and ABC
CORPORATION, a Japanese corporation having its principal office at
WITNESSETH:
WHEREAS, SELLER has been engaged in the manufacture and marketing of
the Products (as hereinafter defined) and desires to expand the sale of same;
WHEREAS, among other things, ABC is engaged in importing, distributing
and marketing various products in Japan and elsewhere; and
WHEREAS, ABC desires to act as, and SELLER desires to appoint ABC as,
the sole and exclusive distributor of the Products in the Territory (as hereinafter
defined).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
The following words shall have the following meanings when used in this
Agreement, unless otherwise the context requires:
1.1 "Customer(s)" shall mean intermediate and/or ultimate purchaser(s)
and user(s) of the Products, as applicable.
1.2 "Individual Contract(s)" shall mean individual contract(s) to be made
pursuant to the provisions of Article 3 hereof.
1.3 "Equipment" shall mean (general description of equipment)
and associated equipment described in Exhibit A hereof, and any and all modifications
and successor models thereof and all new devices developed by or at the direction of
SELLER to accomplish substantially the same purposes.
1.4 "Parts" shall mean replacement parts for, or components of, the
Equipment.
1.5 "Products" shall mean, as applicable, the Equipment and/or Parts
and/or other products as provided in Article 5.
1.6 "Purchase Order" shall mean ABC's standard form of purchase order
prevailing from time to time.
1.7 "Territory" shall mean Japan and (name of country) .
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1.8 "Trademarks" shall mean all trademarks, trade names and emblems
utilized in connection with the Products and identified in Exhibit C hereof and any
abbreviation or modification thereof.
ARTICLE 2. APPOINTMENT
2.1 SELLER hereby appoints ABC, and ABC accepts the appointment,
as SELLER's sole and exclusive distributor for the sale and distribution of the
Products for and in the Territory.
2.2 During the term of this Agreement, SELLER shall not directly or
indirectly (i) sell, distribute, market, lease or otherwise make available the Products
within the Territory except through ABC or (ii) grant a license to anyone other than
ABC for the manufacture and/or sale of the Products within the Territory.
2.3 SELLER shall promptly refer to ABC all inquiries for the Products
originating in or for ultimate delivery to the Territory.
2.4 The relationship between SELLER and ABC is solely that of seller
and buyer. Nothing contained herein shall be construed or deemed to make the
parties hereto joint venturers or partners or to constitute either party an agent or
employee of the other. Neither party shall at any time make any representation, either
in writing or orally, that it is an agent, partner or joint venturer with the other.
Neither party shall have the right, power or authority to assume or create any
obligation, express or implied, on behalf of the other.
ARTICLE 3. PURCHASE AND SALE; PRICE; PAYMENT; INSPECTION;
DELIVERY
3.1 The sale and purchase of the Products hereunder shall be based on
the terms and conditions set forth herein and in the applicable Purchase Order,
provided that; (i) if any discrepancy should occur between the terms and conditions of
this Agreement and those set out in the printed portion of the Purchase Order, this
Agreement shall prevail; or (ii) if any discrepancy should occur between the terms and
conditions of this Agreement and the written or typewritten part of any Purchase
Order, the written or typewritten part of the Purchase Order shall prevail. An
Individual Contract for the Products shall be deemed to have been made when ABC
receives SELLER's acceptance of the Purchase Order, such acceptance being indicated
by SELLER's countersignature on the Purchase Order, SELLER's issuance of a sales
confirmation or similar document, SELLER's acquiescence, SELLER's delivery of the
Products or the like, provided that if any terms in such sales confirmation or similar
document conflict with, or supplement, the terms of this Agreement or the Purchase
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Order, such conflicting or supplemental terms shall be deemed null and void and the
provisions of this Agreement and the Purchase Order shall govern. In any case, each
Purchase Order shall be deemed to have been accepted by SELLER unless SELLER
rejects the order by written notice within ten (10) days after ABC has issued the order.
SELLER shall use its best efforts to timely fill all ABC’s orders and shall not
unreasonably reject such orders.
3.2 The price and payment terms for the Products set forth in each
Individual Contract shall be in accordance with the price list provided in Exhibit B
hereof. The parties may amend such price list in writing, to enable both parties to
realize fair profits on their sales by taking into consideration the normal practices of
the trade, if any, and competitive circumstances existing from time to time.
3.3 For the purpose of securing orderly shipments, ABC shall endeavor
to submit to SELLER each Purchase Order at least _______(__) days prior to the
requested shipment date of the Products[, provided that if ABC does not submit the
Purchase Order within such time, those orders shall nonetheless be binding upon
SELLER unless SELLER promptly notifies ABC of its rejection of the order].
3.4 SELLER represents that the terms and conditions of this Agreement
are at least as favorable to ABC as the terms and conditions which SELLER is
currently offering to other entities. In the event SELLER should offer to any other
entity terms and conditions which are more favorable than the terms and conditions of
this Agreement, SELLER shall promptly notify ABC in writing thereof and offer those
more favorable terms and conditions to ABC.
3.5 Upon reasonable notice to SELLER, ABC shall have the right to
inspect, randomly or otherwise, the Products at the place of manufacture prior to
packing thereof. SELLER shall timely notify ABC of the production schedules for
the Products and of the readiness of the Products for packing. Inspection of any
Products by ABC shall not constitute acceptance thereof nor shall it constitute a
waiver of any claim or right which ABC or Customers may have with respect thereto.
3.6 SELLER shall deliver and ABC shall take delivery of the Products
on (delivery term) , (delivery point) basis. Upon such delivery, title and
risk of loss to the Products shall pass to ABC. In case under any Individual Contract,
SELLER is required to arrange the shipping space, SELLER shall ship the Products by
any established route in a properly equipped seaworthy vessel owned and /or operated
by a first class shipping company satisfactory to ABC; transshipment and partial
shipment shall not be allowed.
Article 4. INSURANCE
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4.1 In case under any Individual Contract SELLER is required to provide
marine insurance, such insurance shall be provided with first class insurance
companies satisfactory to ABC for an amount equivalent to one hundred and ten
percent (110%) of invoice amount, covering Institute Cargo Clause "All Risks" and
"War and S.R. & C.C. Risks", unless otherwise agreed. Any extra costs of insurance
incurred by reason of vessel's age, flag, classification or ownership shall be for
SELLER 's account.
4.2 During the term of this Agreement and ten (10) years after the last
delivery of the Products to the Customers, SELLER shall at its own expense, obtain
and maintain product liability insurance (for amount, with insurers and in a form
approved by ABC) to cover any and all losses, damages (actual, consequential or
indirect), liabilities, penalties, claims, demands, suits or actions, and related costs and
expenses of any kind (including, without limitation, expenses of investigation, legal
fees, judgments and settlements) for injury to or death of any person or property
damage or any other loss suffered or allegedly suffered by any person or entity and
arising out of or otherwise in connection with the Products sold by SELLER to ABC.
SELLER shall furnish ABC with a certificate of insurance evidencing such coverage,
which insurance shall not be cancelled, modified or reduced without prior written
consent of ABC.
The foregoing shall be in addition to, and without affecting the liability of
SELLER under Article 9 and 10 hereof, and shall survive the expiration or termination
of this Agreement.
ARTICLE 5. PRODUCT MODIFICATIONS; NEW PRODUCTS
5.1 SELLER shall notify ABC sufficiently in advance of any planned or
proposed modification in the design or specifications or of any withdrawal of any
Products.
5.2 Any new products (and components thereof) developed or handled
by SELLER in the future which are similar to or competitive with the Products shall
be included in the term "Products" and shall be subject to the terms and conditions of
this Agreement, except for the price therefor, which shall be mutually agreed.
ARTICLE 6. SUB-DISTRIBUTORS
ABC is hereby granted the right to appoint sub-distributors within the
Territory pursuant to terms determined by ABC at its own discretion.
ARTICLE 7. PATENTS, TRADEMARKS AND TRADENAMES
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7.1 SELLER hereby grants to ABC and its sub-distributors the sole and
exclusive right and license to use the Trademarks in connection with the sale and
distribution of the Products in the Territory.
7.2 If SELLER adopts any other trademarks, tradenames and the like in
connection with the Products in the future, ABC shall have the right to request that the
same be included in the definition "Trademarks". Such request shall not be
unreasonably refused by SELLER.
7.3 At SELLER's sole expense, SELLER shall duly register and keep
effective in the Territory all registerable Trademarks and the exclusive license granted
to ABC and its sub-distributors with respect to such registerable Trademarks,
provided, however, that ABC shall, at its option, have the right, in ABC’s name and at
its expense, to duly register and keep effective in the Territory all registerable
Trademarks and the exclusive license granted to ABC and its sub-distributors with
respect to such registerable Trademarks.
ARTICLE 8. SALES PROMOTION; TECHABCAL ASSISTANCE
8.1 ABC agrees to exert its best efforts to promote the sale of the
Products in the Territory.
8.2 Upon SELLER's request, ABC shall furnish SELLER with reports
relating to the sale of the Products. Each party shall furnish the other party with
information which may be necessary or helpful with respect to the sales promotion of
the Products.
8.3 Upon ABC’s request, SELLER shall provide to ABC, free of charge,
a reasonable number of samples, catalogs, brochures and other promotional materials
which may be useful to promote the sale of the Products in the Territory. ABC shall
have the right to translate any such materials into other languages and shall own the
copyright in any such translations.
8.4 At ABC’s request, SELLER shall; (i) at no costs to ABC, provide
ABC with such techABCal advice and information as may be desirable for a full
understanding of the Products and (ii) provide training for a reasonable period of time
for a reasonable number of personnel dispatched by ABC to SELLER's facilities.
Any costs to be incurred as a result of such training, shall be borne as mutually agreed
on a case by case basis.
8.5 If requested by ABC, SELLER shall promptly provide techABCal
support (including the dispatch of SELLER's qualified personnel) to ensure the proper
installation, calibration and use of the Products and to provide advice, training and
assistance to ABC's and Customers' personnel and shall visit potential customers with
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ABC to promote the sale and proper use of the Products. SELLER shall provide such
personnel at a rate to be mutually agreed.
ARTICLE 9. WARRANTY
9.1 SELLER hereby warrants that it has the right to appoint ABC as the
exclusive distributor of the Products in the Territory.
9.2 SELLER hereby warrants to ABC and to the Customers that the
Products shall (i) strictly conform to the specifications, drawings, data and samples
thereof, and to all governmental regulations and safety standards in the Territory, (ii)
be free from defects in design, material, workmanship, instruction manuals, labeling,
warning instruction or the like, and (iii) be of merchantable quality and fit for the
ordinary purposes for which the Products are used and ABC's and the Customers'
intended uses thereof and (iv) shall be packed properly and delivered timely. This
warranty shall survive any inspection, delivery, acceptance or payment by ABC.
ABC shall have no obligation to provide any warranty to the Customers with respect to
the Products.
9.3 With respect to any and all claims alleged by ABC on the
above-mentioned warranty for a period of [twelve (12)] months from the date of
original installation or [eighteen (18)] months from the shipment date to ABC of the
Products, whichever is longer, SELLER shall, at ABC’s option, either promptly repair,
replace (with freight, insurance and all charges prepaid to the Customer's location at
SELLER’s account) or refund the purchase price of any Products which do not comply
with SELLER's warranty and shall reimburse ABC for any and all costs, expenses,
losses and damages arising in connection therewith. SELLER represents that it shall
promptly and diligently comply with all its warranty obligations.
9.4 The foregoing obligations hereunder shall survive the expiration or
termination of this Agreement.
ARTICLE 10. INDEMNITY
10.1 SELLER shall indemnify and hold ABC, its subsidiaries and
affiliates and their directors, officers and employees harmless from any and all losses,
damages, obligations, liabilities, costs and expenses (including, without limitation,
legal fees and expenses) arising out of or in connection with (i) any claim of a third
party regarding any breach of warranty or representation or any defect in the design,
materials or workmanship of Products regardless of whether such defect is caused by
the negligence of SELLER, (ii) any claim of a third party with respect to the Products,
including, without limitation any claim or infringement of trademarks, trade names,
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emblems, designs, patents, copyrights and other intellectual property arising or in
connection with ABC’s sale and distribution of the Products in the Territory and (iii)
any claim, suit or action of a third party for injury to or death of any person or property
damage or any other loss suffered or allegedly suffered by any person or entity and
arising out of or otherwise in connection with Products sold by SELLER to ABC.
10.2 In complying with the provision of above Section, SELLER shall
actively and at its own expense defend against any such claim, provided that if in
ABC’s sole opinion SELLER fails to mount an adequate defense to such claim, ABC
shall have the right to so defend or, its sole discretion, to make any settlement of such
claim, and SELLER shall cooperate with such efforts (including, without limitation,
techABCal and other information, documents, data, materials and witnesses as may be
requested by ABC in its opinion necessary for such defense to such claim) and shall
indemnify ABC therefor as provided in the above Section.
10.3 SELLER shall, upon ABC’s request, cooperate with ABC to recall
any and all Products in the event such recall is required by law or is considered
necessary or prudent at ABC’s sole discretion.
10.4 In case any claim is made (whether or not against ABC, and whether
or not made in the Territory) in relation to a product which is same or similar to the
Products, then notwithstanding anything else in this Agreement:
(a) SELLER shall, at ABC’s request, stop delivery of the Products to ABC,
and
(b) ABC shall have no obligation to purchase or take delivery of the Products
until ABC shall be satisfied that (i) the Products are free from such alleged
claim, and (ii) all causes of such claim have been completely corrected or
eliminated, and
(c) If SELLER is unable to satisfy ABC in such manner as stipulated in above
Paragaraph (b) within [30] days after such claim is made, ABC may upon
written notice to SELLER terminate this Agreement and/or any Individual
Contract without any liability. Upon such termination, ABC shall be
released from any obligation to purchase or accept delivery of any
Products remaining undelivered under any Individual Contract, and
SELLER shall, at ABC’s request, buy-back any and all ABC's stock of the
Products at the same price as paid by ABC and at the place where such
Products are located.
10.5 SELLER’s indemnity obligations hereunder shall survive the
expiration or termination of this Agreement.
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ARTICLE 11. CONFIDENTIALITY
Neither party shall disclose to any person, firm or corporation the existence of
this Agreement or any knowledge or information pertaining to, or discerned in
connection with, this Agreement or the conduct or details of the business of the other
party, unless and until such knowledge or information becomes part of the public
domain [for a period of ___ years after the termination or expiration of this
Agreement]. It is agreed that ABC may disclose such information to its agent,
sub-distributors and Customers which may be necessary in connection with the
performance of this Agreement, or if required by law or regulation, to relevant
government agencies.
ARTICLE 12. TERM AND TERMINATION
12.1 This Agreement shall commence as of the date first above written
and shall have an initial term of five (5) years, and shall thereafter be automatically
renewed for successive terms of five (5) years each, unless not less than six (6) months
prior to the expiration of the then current term either party gives the other party written
notice terminating this Agreement upon the expiration of the then current term.
12.2 This Agreement may be terminated by either party upon written
notice to the other party; if (i) the other party fails to fulfill its material obligations
hereunder or under any Individual Contract and such failure is not cured within fifteen
(15) days after its receipt of a written notice requesting a remedy thereof; or (ii) the
other party becomes insolvent or any voluntary or involuntary petition in bankruptcy is
filed by or against such party or a trustee, receiver or similar person is appointed with
respect to any of the assets of such party, or a liquidation proceeding is commenced by
or against such party or if such party discontinues its business, or (iii) there is a
substantial change in the ownership or control of the other party.
12.3 Termination of this Agreement shall not relieve either party of its
obligations incurred prior thereto, or any rights or obligations which by their terms
survive or take effect upon termination. Regardless of the reasons for termination of
this Agreement, all outstanding credits and liabilities under the warranty provisions
hereof shall continue to remain in force. ABC shall have the option to accept
delivery under, or cancel, in whole or in part, any Individual Contracts which are
outstanding at the time of termination of this Agreement. Notwithstanding
termination, ABC may continue to sell any unsold Products and use the Trademarks in
connection therewith.
12.4 All goodwill developed within the Territory in connection with the
sale and distribution of the Products shall remain the property of ABC.
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[(Seller側が任意に契約を解除できる条項等が入る場合に本条項を挿入
すること)12.5 The parties agree that ABC shall expend substantial efforts and costs
to develop and maintain a market for the Products. Therefore, in the event this
Agreement is terminated by SELLER, ABC shall be compensated as follows:
[select one or combination of following options:]
(a) [a one time lump sum of $____________][such as, if the term of contract
was 0-2 years, a one time lump sum of $_____, if the term was 2-4 years
$_______, etc.]; and/or
(b) [___ percent (__%) of the aggregate purchase amount of the Products
which ABC purchased from SELLER during twelve (12) months prior to
the termination].
All amounts payable pursuant to this Section shall be due and payable in cash
within thirty (30) days after the termination [upon notice of termination and this
Agreement shall not be deemed terminated without ABC’s receipt of such amount in
full].
[12.6 SELLER agrees that for at least ten (10) years after the expiration or
termination hereof SELLER shall make available and offer for sale Parts at a
reasonable price and service the Products at a reasonable cost.]
ARTICLE 13. FORCE MAJEURE
Neither party shall be responsible for nonperformance or delay in
performance under this Agreement and/or any Individual Contract due to acts of God,
civil commotion, war, riots, strikes, lockouts, severe weather, fires, explosions,
governmental actions or other similar causes beyond the control of such party,
provided that the party so affected shall promptly give notice thereof to the other party
and shall continue to take all action reasonably within its power to comply herewith as
fully as possible. In any event the time for performance hereunder shall only be
extended for the duration of the delay. Should such conditions continue for more
than one (1) month, ABC shall have the right to terminate forthwith all or any part of
this Agreement and /or any Individual Contract by giving notice thereof to SELLER
without any liability.
ARTICLE 14. GENERAL PROVISIONS
14.1 This Agreement constitutes a personal contract and, except as
provided herein, is not assignable by either party in whole or in part without the prior
written consent of the other party, which consent shall not be unreasonably withheld,
and any attempted assignment or participation without such consent shall be null and
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void, provided that ABC may assign or transfer its rights under this Agreement to any
of its subsidiaries and sub-distributors, without SELLER's consent but with written
notice to SELLER.
14.2 Any notice made in relation to this Agreement or performance
thereunder shall be in English language and sent by prepaid certified airmail (return
receipt requested), telefax or telex (confirmed with a copy by prepaid certified airmail)
to the following addresses or such other address as the intended recipient previously
shall have designated in writing:
If to SELLER:
(full name of SELLER)
(full address of SELLER)
Attn: President [or General Manager, _________________ Department]
Telefax No.: (country code) (area code) - _______________
Telex No.:
If to ABC:
ABC Corporation
2-○○, Abeno-ku, Osaka 596-8655, Japan
Attn: General Manager, _________________ Department
Telefax No.: (81) 3-596-______
Telex No:
All notices hereunder shall be made upon receipt and shall be deemed received, if sent
by airmail seven (7) days after the date of posting, and if sent by telefax or telex on the
following business day. Rejection or other refusal to accept or the inability to deliver
because of change of address of which no notice was given shall be deemed to be
receipt of the notice sent.
14.3 This Agreement shall be governed by and construed in accordance
with the laws of Japan. The trade terms under this Agreement and any Individual
Contract, unless the context requires otherwise, shall be governed by and interpreted
under the provisions of the International Rules for the Interpretation of Trade Terms
(INCOTERMS) and its Supplements prevailing at the shipment date of the subject
Products.
14.4 Any dispute, controversy and/or difference which may arise between
SELLER and ABC out of or in relation to or in connection with this Agreement and/or
Individual Contract, or the breach thereof, which cannot be settled by mutual accord
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without undue delay, shall be finally settled by arbitration in Osaka, Japan in
accordance with the Commercial Arbitration Rules of the Japan Commercial
Arbitration Association. The award thereof shall be final and binding upon the
parties hereto and enforceable through entry in any court of competent jurisdiction.
14.5 The provisions of this Agreement shall be deemed to be severable,
and the invalidity of any provision of this Agreement shall not affect the validity of the
remaining provisions of this Agreement.
14.6 Any failure of either party hereto to enforce at any time any of the
provisions hereof shall not be construed to be a waiver of such provisions or of the
right of such party thereafter to enforce such provisions.
14.7 The headings used herein are for ease of reference only and are not to
be utilized in construing or interpreting this Agreement.
[14.8 SELLER shall reimburse ABC for all expenses, including, without
limitation, reasonable attorneys' fees and other expenses, incurred or paid by it in
exercising or protecting its interests, rights or remedies under this Agreement, plus
interest thereon at the highest rate permitted by applicable law.]
14.8 No provision of this Agreement shall be construed against or
interpreted to the disadvantage of either party hereto by any court or governmental or
judicial authority by reason of such party having or being deemed to have structured or
dictated such provision.
14.9 Whenever the approval or consent of SELLER is required hereunder,
such approval or consent shall not be unreasonably withheld.
14.10 This Agreement constitutes the entire agreement and understanding
of the parties hereto with respect to the subject matter of this Agreement[, except
(existing agreement or letter etc which must survive, if any) ], and supersedes all
prior discussions, agreements and understandings between the parties with respect to
such matter. No representation or statement not contained in this Agreement shall be
binding on either party as warranty or otherwise. No amendment or modification of
this Agreement shall be binding on the parties unless made in writing expressly
referring to this Agreement and signed by duly authorized officers or representatives of
both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate as of the date first above written.
DSTRBTR AGR FOR IMPORT
[SELLER]
By:
Name:
Title:
ABC CORPORATION
By:
Name:
Title:
DSTRBTR AGR FOR IMPORT
EXHIBIT A
DESCRIPTION OF THE PRODUCTS; SPECIFICATIONS
[EXHIBIT B]
PRICE SCHEDULE
PAYMENT TERMS
[EXHIBIT C]
DESCRIPTION OF THE TRADEMARKS
Instructions re use of the Trademarks