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This is a contract between a seller and buyer of goods whereby the buyer agrees to purchase all of its products from the seller on an exclusive basis. Particularly, this contract has been drafted for distributors or manufacturers of a product. Customize the types of products that will be sold, the term length, shipping methods, and much more. This document is ideal for small businesses that want to enter into an exclusive contract to buy or sell certain goods in bulk.
Exclusive Supply Contract This is a contract between a seller and buyer of goods whereby the buyer agrees to purchase all of its products from the seller on an exclusive basis. In particular, this contract has been drafted for distributors or manufacturers of a product. Customize the types of products that will be sold, the term length, shipping methods, and much more. This document is ideal for small businesses that want to enter into an exclusive contract to buy or sell certain goods in bulk. EXCLUSIVE SUPPLY AGREEMENT THIS EXCLUSIVE SUPPLY AGREEMENT (hereinafter referred to as the “Agreement”), made as of _______________, [Instructions: Insert the date of this agreement] by and between _______________________ [Instructions: Insert the Buyer’s name] (hereinafter referred to as the “Buyer”), with an address of _____________________________ [Instructions: Insert the Buyer’s address] and _______________________ [Instructions: Insert the Seller’s name] (hereinafter referred to as the “Seller”), with an address of _____________________________. [Instructions: Insert the Seller’s address] WHEREAS, Buyer, in the course of its business, requires a supply of _______________________ [Instructions: Insert the products subject to this agreement] (the “Required Goods”); WHEREAS, Seller is the manufacturer of the products set forth in Exhibit “A” (the “Products”), as such may be updated and modified by Seller, which are Required Goods; WHEREAS, Buyer desires to purchase its full supply of the Required Goods from Seller, and desires for the Products to be Buyer’s sole and exclusive Required Goods; and WHEREAS, subject to the terms and conditions contained herein, Seller desires to accept said exclusive supplier engagement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is hereby covenanted and agreed by the parties as follows: 1. EXCLUSIVITY The parties agree that during the Term of this Agreement, Buyer shall purchase exclusively from Seller, in accordance with the sales terms hereof, all Required Goods that Buyer requires in connection with Buyer’s business. During the term of this Agreement, Buyer agrees that it will only purchase the Products and that it will not purchase Required Goods from any vendor other than Seller, unless Seller consents in writing to such purchase. 2. SALES TERMS a. Products. Seller shall provide to Buyer an updated list of the Products. A copy of the Products available as of the date hereof is attached to this Agreement as Exhibit “A”, which may be updated and modified by Seller from time to time, at Seller’s sole discretion. Seller reserves the right, at any time, to change the specifications, functionalities, features and/or designs of the Products and/or to withdraw the availability of any Product. Seller has the right to discontinue the distribution or availability of any Product, provided that Seller provides Buyer with __________ (___) days’ [Instructions: Insert the number of days written notice required to cancel the distribution of a product] written notice. The foregoing shall not apply to orders that have previously been approved by Seller. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 b. Product Prices. Seller shall provide to Buyer an updated list of the Products, including purchase prices in U.S. Dollars (the “Product Prices”). A copy of the Product Prices in effect as of the date hereof is attached to this Agreement as Exhibit “A”, which may be updated and modified by Seller from time to time, at Seller’s sole discretion. Seller shall be entitled to vary the Product Prices at any time provided that Seller provides Buyer with __________ (___) days’ [Instructions: Insert number of days written notice required to change the price of a product] written notice of any change to the Product Prices. The foregoing shall not apply to orders that had previously been approved by Seller. All Product Prices shall be ex-works Seller’s warehouse or production premises. To the extent Seller incurs any shipping, insurance, or other charges on behalf of Buyer, such charges will be added to the invoice for Products and paid by Buyer. c. Purchase Orders. i. Purchases of Products shall be initiated by Buyer pursuant to the terms and conditions appearing on Seller’s purchase order acknowledgment. All purchase orders placed by Buyer hereunder shall be governed by the terms and conditions of this Agreement which shall supersede any different or additional terms on Buyer’s purchase orders, which different or additional terms are hereby rejected. In the event of a conflict between the provisions of this Agreement and the terms and conditions of any purchase orders, the provisions of this Agreement shall prevail and control. No order shall be binding upon Seller until accepted by Seller in writing. ii. Seller shall respond to the proposed purchase order by either accepting or reasonably rejecting the proposed purchase order in writing. In rejecting a purchase order, Seller will provide the reason for such rejection. iii. Seller shall use commercially reasonable efforts to make deliveries of purchase orders so accepted in a timely manner, but Seller shall not be liable for any delay in delivery which occurs notwithstanding such commercially reasonable efforts or any errors in filling any purchase orders. If purchase orders for the Products exceed Seller’s inventory, Seller shall allocate available inventory on a basis Seller deems equitable in its sole discretion. d. Cancellation and Rescheduling. Upon the acceptance of a purchase order by Seller, the purchase order may not be cancelled by Buyer for any reason. Upon Buyer’s request, Seller will make commercially reasonable efforts to reschedule the delivery date of an accepted purchase order. e. Shipping. All shipments shall be made ex-works Seller’s warehouse or production premises. Accordingly, delivery and the relevant risk of loss or damage to the Products shall be deemed effected and transferred to Buyer at Seller’s premises with the loading of the Products onto the means of transport of the carrier entrusted therewith, subject to Seller’s rights of stoppage in transit and reclamation. In the event that Buyer has not identified the carrier to transport the Products within the applicable purchase order, Seller may select the carrier and shall purchase on behalf of Buyer appropriate shipping insurance. To the extent Seller incurs any shipping, insurance, or other charges on behalf of Buyer, such charges will be © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 added to the invoice for Products and paid by Buyer. Buyer shall pay all costs of transportation, insurance, export and import fees, customs brokerage expenses and similar charges. Buyer, at its expense, shall make and negotiate any claims against any carrier, insurer, customs broker, freight forwarder or customs collector. f. Acceptance. Buyer shall have a period of __________ (___) days [Instructions: Insert the number of days buyer has to inspect the goods] after receipt of the Products (the “Acceptance Period”) to inspect the Products for any shortages, damages, defects or substantial non-conformity (individually or collectively referred to herein as “Non-conformities”). During the Acceptance Period, Buyer may reject Products with Non-conformities, provided that, prior to the end of the Acceptance Period, Buyer provides Seller with written notice of rejection that specifies in reasonable detail the Non-conformities that are the basis for the rejection. Any Products not specifically rejected by Buyer during the Acceptance Period shall be deemed finally accepted by Buyer and such acceptance may not be revoked. Buyer shall return all rejected Products to Seller in their original packing, subject to Seller’s reasonable shipping and insurance instructions. If Seller’s examination of the returned Products confirms the existence of Non- conformities, Seller shall be obligated to, at its sole option, (i) repair or replace the Products within fifteen (15) days after receipt thereof from Buyer, (ii) refund amounts paid for such non- conforming Products, or (iii) issue a credit to Buyer in an amount equal to the amounts paid for such non-conforming Products. g. Payment. i. The total amount payable for the Products shall be the Product Price included on the applicable purchase order together with any and all costs, fees, charges and expenses related to the shipping, transportation and importation of the Products into the Territory. In addition to foregoing, Buyer shall pay, indemnify and hold Seller harmless from any sales, use, excise, import or export, value added or similar tax, and any penalties or interest associated with any of the taxes, imposed by any governmental authority with respect to any payment to be made by Buyer to Seller under this Agreement or any Products to be delivered by Seller under this Agreement. ii. Payment shall be due and payable within of __________ (___) days [Instructions: Insert the number of days after an invoice that payment will be due] after the date of Seller’s invoice thereof. Payment will be made only in United States Dollars, by wire transfer to the bank designated by Seller or other means satisfactory to Seller. Payments made by Buyer, even if marked to indicate payment in full, will be deposited by Seller or otherwise accepted by its bank notwithstanding such markings and such deposit and/or acceptance shall not indicate Seller’s acceptance of the payment as payment in full unless the remittance actually constitutes payment of all sums owed. All sums not paid when due shall accrue interest daily at the highest rate permissible by law on the unpaid balance until paid in full. iii. In the event that Buyer fails to pay any amounts due and such failure extends beyond forty-five (45) days after the applicable invoice date, Seller may, at any time thereafter, in Seller’s sole discretion and without any liability to Buyer, suspend production, shipments and/or deliveries of Products, and demand such other terms or conditions or security © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 arrangements for Buyer’s due performance, as Seller, in its sole discretion, deems appropriate, including without limitation requiring full payment be made prior to shipment of the Products or termination the Agreement. 3. TERM AND TERMINATION a. Term. The term of this Agreement shall commence as of the date hereof and continue until __________ [Instructions: Insert Date] (the “Initial Term”). Subsequently, this Agreement shall automatically renew for successive __________ (___) [Instructions: Insert Amount] [Instructions: Choose One month OR year] renewal terms (each, a “Renewal Term”), unless, at least __________ (___) days [Instructions: Insert Amount] prior to the beginning of any Renewal Term, either party gives the other party written notice of its intent not to renew this Agreement. b. Termination. i. Notwithstanding anything to the contrary contained herein, either party may terminate this Agreement upon __________ (___) days’ [Instructions: Insert the number of days written notice required to terminate this agreement] written notice (or in the case of payment breaches, upon __________ (___) days’ [Instructions: Insert the number of days written notice required to terminate this agreement] written notice) of a material breach of this Agreement by the other party, if such breach is not cured within such period. ii. Either party may terminate this Agreement immediately upon written notice if the other party becomes insolvent or fails to pay its obligations as they arise, files for bankruptcy, or if a proceeding by or against the other party under any law providing relief to the other party as debtor is commenced and is not dismissed within __________ (___) days [Instructions: Insert the number of days after the commencement of a bankruptcy action that the case may be dismissed without affecting this agreement] after commencement. 4. WARRANTIES; DISCLAIMERS; WAIVERS; INDEMNITY a. Seller’s Warranty. Seller makes warrants that the Products will be free of defects in material and workmanship for a period of one (1) year after the delivery date thereof to Buyer (“Warranty Period”). Buyer’s sole and exclusive remedy arising out of or relating to such warranty shall be to return the defective Products to Seller within the Warranty Period for repair or replacement, refund or credit as set forth in this Agreement. The foregoing shall be Buyer’s sole remedy, and Seller’s sole liability, with respect to any Products not meeting the warranty set forth in this paragraph. b. Disclaimer. EXCEPT AS SET FORTH HEREIN, SELLER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. SELLER NEITHER ASSUMES, NOR © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY WARRANTY OR OTHER LIABILITY IN CONNECTION WITH THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING THE PRODUCTS’ PERFORMANCE OR RESULTS OBTAINED FROM USE OF THE PRODUCTS, OR LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, OPERATION OR USE OF THE PRODUCTS. IN ADDITION TO BUT WITHOUT LIMITING THE FOREGOING, SELLER PROVIDES ANY PRODUCT “AS IS” WITHOUT ANY WARRANTY, GUARANTEES OR ASSURANCES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT THE PRODUCT IS FIT FOR THE PURPOSE FOR WHICH IT IS USED, OR THAT IT IS ERROR FREE. c. Consequential Damages Waiver. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER THIRD PARTY, UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA OR USE INCURRED BY BUYER OR ANY THIRD PARTY INCLUDING ANY END USER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. d. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, SELLER’S AGGREGATE LIABILITY TO BUYER OR ANY THIRD PARTY FOR CLAIMS RELATING TO THIS AGREEMENT, OR SELLER’S PERFORMANCE OR NON- PERFORMANCE HEREUNDER, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE INCLUDING STRICT LIABILITY, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL PAYMENTS ACTUALLY RECEIVED BY SELLER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING BUYER’S INITIAL WRITTEN NOTICE TO SELLER OF ANY CLAIM OR POTENTIAL CLAIM HEREUNDER. FURTHERMORE, SELLER SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER FOR DELAYS IN MANUFACTURE, ASSEMBLY, SHIPMENT OR FURNISHING OF THE PRODUCTS OR ANY SERVICES. e. Indemnity. Buyer shall defend, indemnify and hold Seller and its affiliates and its and their respective directors, officers, agents employees and contractors (“Seller Indemnitees”), harmless from and against any and all damages, losses, costs, liabilities, expenses (including reasonable attorneys’ fees and costs of litigation and investigation regardless of outcome) and settlement amounts incurred in connection with any suit, claim or action by any third party (including any end-user) against a Seller Indemnitee as a result of: (i) negligence, misrepresentation, misconduct, error or omission on the part of Buyer or its agents, employees or contractors or other representatives relating to or concerning the Products, including their installation, operation, use, maintenance, servicing or repair; or (ii) Buyer’s breach of this Agreement. 5. MISCELLANEOUS © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6 a. Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever. b. Import/Export; Compliance with Laws. Buyer shall comply with all applicable foreign and domestic laws and regulations relating to the importation or exportation of the Products and relating to this Agreement, including without limitation, those laws and regulations applicable to Buyer’s marketing, promotion, advertising, distribution and sale of Products hereunder. In addition to the foregoing, Buyer shall at all times maintain those permits, licenses, registrations and authorizations that are required to be obtained and maintained in order for Buyer to carry out its activities and meet its obligations under this Agreement in accordance with all applicable laws and regulations. c. Notices. Any notice required hereunder shall be in writing and shall be deemed to be properly given: when delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid. All notices shall be sent to the party and address set forth in this Agreement (or to such other address or person as may be designated by a party by giving written notice to the other party). d. Assignment. Neither party may, without the prior written consent of the other party, assign, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement and/or any of its rights or obligations hereunder. Any attempted or purported assignment or other transfer not complying with the foregoing shall be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and bind the successors and assigns of the parties. e. Severability. If any term, provision, covenant or condition of this Agreement is held by a court or arbitral panel of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. f. Further Actions. Each party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement. g. Entire Agreement. This Agreement and Exhibit “A” hereto contain the entire understanding of the parties with respect to the subject matter of this Agreement and merges and supersedes all prior and contemporaneous agreements and understandings between the parties, whether oral or written, with respect to the subject matter of this Agreement. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by the authorized representatives of both parties. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 7 h. Choice of Law; Venue; Jurisdiction. This Agreement shall be governed in accordance with the laws of the State of _______________________ [Instructions: Insert the state’s laws that will govern this agreement] applicable to agreements to be wholly performed therein, without giving effect to its laws governing conflict of laws. i. Attorney’s Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs. IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date first written above. BUYER __________________________ By: Authorized Signatory SELLER __________________________ By: Authorized Signatory © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 8 EXHIBIT A PRODUCTS Product Product Name Description Product Price Number (effective as of __/__/____) _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ _____________ _____________ _____________ $_____________ © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 9
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