Exclusivity Agreement

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					Exclusivity Agreement
This Exclusivity Agreement can be used between a small business and a contractor or
vendor that provides goods/services whereby the small business agrees it will use the
contractor exclusively for such goods/services. Customize the information of the parties,
the goods/services the contractor provides, the termination procedure, delivery
procedure, and much more. This agreement is ideal for individuals or small businesses
that want to exclusively provide goods/services for a business.
                                   EXCLUSIVITY AGREEMENT

THIS EXCLUSIVITY AGREEMENT (hereinafter referred to as the “Agreement”), is made
on ______________________ [Instructions: Insert the date] by and between
___________________ [Instructions: Insert the Company’s name] (hereinafter referred to as
the “Company”) of _____________________________________ [Instructions: Insert the
Company’s address] and ___________________ [Instructions: Insert the Contactor’s name]
(hereinafter referred to as the “Contractor”) of _____________________________________.
[Instructions: Insert the Contractor’s address]

WHEREAS, Company, in Company’s regular course of business, requires a significant amount
of ______________________________________ [Instructions: Insert the general category of
goods/services Contractor provides] (“Company’s Requirements”);

WHEREAS, Contractor provides the deliverables set forth in Exhibit “A”, attached hereto and
incorporated herein, as such may be updated and modified by Contractor (“Contractor’s
Deliverables”).

WHEREAS, Contractor’s Deliverables meet Company’s Requirements; and

WHEREAS, Company desires to engage Contractor to provide Contractor’s Deliverables as the
sole and exclusive source of Company’s Requirements; and subject to the terms and conditions
contained herein, Contractor desires to accept said exclusive 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, Company shall purchase exclusively
from Contractor, in accordance herewith, all of Company’s Requirements in connection with
Company’s business. During the term of this Agreement, Company agrees that it will only
purchase Contractor’s Deliverables and that it will not purchase Company’s Requirements from
any vendor other than Contractor, unless Contractor consents in writing to such purchase.

2.       SALES TERMS

        a.      Contractor’s Deliverables. Contractor shall provide to Company an updated list
of Contractor’s Deliverables. A copy of Contractor’s Deliverables available as of the date hereof
is attached to this Agreement as Exhibit “A”, which may be updated and modified by Contractor
from time to time, at Contractor’s sole discretion. Contractor reserves the right, at any time, to
change any aspect of Contractor’s Deliverables. Contractor has the right to withdraw the
availability of any of Contractor’s Deliverables, provided that Contractor provides Company
with __________ (___) [Instructions: Insert the number of days notice Contractor must
provide Company if they want to withdraw from any deliverables] days written notice. The
foregoing shall not apply to orders that have previously been approved by Contractor.


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       b.      Purchase Prices. Contractor shall provide to Company an updated list of
Contractor’s Deliverables, including purchase prices in U.S. Dollars (the “Purchase Prices”). A
copy of the Purchase Prices in effect as of the date hereof is attached to this Agreement as
Exhibit “A”, which may be updated and modified by Contractor from time to time, at
Contractor’s sole discretion. Contractor shall be entitled to vary the Purchase Prices at any time
provided that Contractor provides Company with __________ (___) [Instructions: Insert the
number of days notice Contractor must provide Company if they want to change the
purchase price of any deliverable] days written notice of any change to the Purchase Prices.
The foregoing shall not apply to orders that had previously been approved by Contractor. To the
extent Contractor incurs any charges on behalf of Company; such charges will be added to the
invoice for Contractor’s Deliverables and paid by Company.

         c.       Purchase Orders.

              i.       Purchases of Contractor’s Deliverables shall be initiated by Company
pursuant to the terms and conditions appearing on Contractor’s purchase order acknowledgment.
All purchase orders placed by Company hereunder shall be governed by the terms and conditions
of this Agreement which shall supersede any different or additional terms on Company’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 Contractor until accepted by Contractor in writing.

             ii.       Contractor shall respond to the proposed purchase order by either
accepting or reasonably rejecting the proposed purchase order in writing. In rejecting a purchase
order, Contractor will provide the reason for such rejection.

              iii.     Contractor shall use commercially reasonable efforts to make deliveries of
purchase orders so accepted in a timely manner, but Contractor 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 Contractor’s Deliverables exceed Contractor’s
inventory, Contractor shall allocate available inventory on a basis Contractor deems equitable in
its sole discretion.

       d.      Cancellation and Rescheduling. Upon the acceptance of a purchase order by
Contractor, the purchase order may not be cancelled by Company for any reason. Upon
Company’s request, Contractor will make commercially reasonable efforts to reschedule the
delivery date of an accepted purchase order.

        e.     Shipping. All shipments shall be made ex-works Contractor’s warehouse or
production premises. Accordingly, delivery and the relevant risk of loss or damage to
Contractor’s Deliverables shall be deemed effected and transferred to Company at Contractor’s
premises with the loading of Contractor’s Deliverables onto the means of transport of the carrier
entrusted therewith, subject to Contractor’s rights of stoppage in transit and reclamation. In the
event that Company has not identified the carrier to transport Contractor’s Deliverables within



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the applicable purchase order, Contractor may select the carrier and shall purchase on behalf of
Company appropriate shipping insurance. To the extent Contractor incurs any shipping,
insurance, or other charges on behalf of Company, such charges will be added to the invoice for
Contractor’s Deliverables and paid by Company. Company shall pay all costs of transportation,
insurance, export and import fees, customs brokerage expenses and similar charges. Company,
at its expense, shall make and negotiate any claims against any carrier, insurer, customs broker,
freight forwarder or customs collector.

        f.     Acceptance.      Company shall have a period of __________ (___) days
[Instructions: Insert the number of days Company has to inspect the goods/services
provided] after receipt of Contractor’s Deliverables (the “Acceptance Period”) to inspect
Contractor’s Deliverables for any shortages, damages, defects or substantial non-conformity
(individually or collectively referred to herein as “Non-conformities”). During the Acceptance
Period, Company may reject Contractor’s Deliverables with Non-conformities, provided that,
prior to the end of the Acceptance Period, Company provides Contractor with written notice of
rejection that specifies in reasonable detail the Non-conformities that are the basis for the
rejection. Any of Contractor’s Deliverables that are not specifically rejected by Company during
the Acceptance Period shall be deemed accepted by Company and such acceptance may not be
revoked. Company shall return all rejected Contractor’s Deliverables to Contractor, subject to
Contractor’s reasonable shipping and insurance instructions. If Contractor’s examination of the
returned Contractor’s Deliverables confirms the existence of Non-conformities, Contractor shall
be obligated to, at Contractor’s sole option to: (i) repair or replace Contractor’s Deliverables
within __________ (___) [Instructions: Insert the number of days Contractor has to replace
non-conforming goods] days after receipt thereof from Company, (ii) refund amounts paid for
such Non-conforming Contractor’s Deliverables, or (iii) issue a credit to Company in an amount
equal to the amounts paid for such Non-conforming Contractor’s Deliverables.

         g.       Payment.

              i.       The total amount payable for Contractor’s Deliverables 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 Contractor’s
Deliverables into the Territory. In addition to foregoing, Company shall pay, indemnify and
hold Contractor 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 Company to Contractor under this
Agreement or any Contractor’s Deliverables to be delivered by Contractor under this Agreement.

             ii.       Payment shall be due and payable within __________ (___) [Instructions:
Insert the number of days Company has to pay an invoice] days after the date of Contractor’s
invoice thereof. Payment will be made only in United States Dollars, by wire transfer to the
bank designated by Contractor or other means satisfactory to Contractor. Payments made by
Company, even if marked to indicate payment in full, will be deposited by Contractor or
otherwise accepted by its bank notwithstanding such markings and such deposit and/or
acceptance shall not indicate Contractor’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



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accrue interest daily at the highest rate permissible by law on the unpaid balance until paid in
full.

             iii.     In the event that Company fails to pay any amounts due and such failure
extends beyond __________ (___) [Instructions: Insert the number of days Company’s
invoice payment must be late to allow the Contractor to suspend deliveries] in Contractor’s
sole discretion and without any liability to Company, suspend production, shipments and/or
deliveries of Contractor’s Deliverables, and demand such other terms or conditions or security
arrangements for Company’s due performance, as Contractor, in its sole discretion, deems
appropriate, including without limitation requiring full payment be made prior to shipment of
Contractor’s Deliverables 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 the termination date of this
agreement] (the “Initial Term”). Subsequently, this Agreement shall automatically renew for
successive __________ (___) [Instructions: Insert the number of months/years this
agreement will automatically renew] [Instructions: Choose one month OR year] renewal
terms (each, a “Renewal Term”), unless, at least __________ (___) days [Instructions: Insert
the number of days notice a party must provide to not renew this agreement] 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 __________ (___) [Instructions Insert the number of days
notice a party must provide to terminate this agreement] days written notice (or in the case of
payment breaches, upon __________ (___) [Instructions Insert the number of days notice a
party must provide to terminate this agreement due to payment breach] days 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 a bankruptcy proceeding must last to allow the
opposing party to terminate this agreement] after commencement.

4.       WARRANTIES; DISCLAIMERS; WAIVERS; INDEMNITY

        a.     Contractor’s Warranty. Contractor warrants that Contractor’s Deliverables will
be free of defects in material and workmanship for a period of one (1) year after the delivery date
thereof to Company (“Warranty Period”). Company’s sole and exclusive remedy arising out of



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or relating to such warranty shall be to return the defective Contractor’s Deliverables to
Contractor within the Warranty Period for repair or replacement, refund or credit as set forth in
this Agreement. The foregoing shall be Company’s sole remedy, and Contractor’s sole liability,
with respect to any Contractor’s Deliverables not meeting the warranty set forth in this
paragraph.

     b.   Disclaimer. EXCEPT AS SET FORTH HEREIN, CONTRACTOR 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. CONTRACTOR NEITHER ASSUMES, NOR
AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY WARRANTY OR
OTHER LIABILITY IN CONNECTION WITH CONTRACTOR’S DELIVERABLES,
INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING CONTRACTOR’S
DELIVERABLES’ PERFORMANCE OR RESULTS OBTAINED FROM USE OF
CONTRACTOR’S DELIVERABLES, OR LIABILITY ARISING OUT OF THE DELIVERY,
INSTALLATION, OPERATION OR USE OF CONTRACTOR’S DELIVERABLES. IN
ADDITION TO, BUT WITHOUT LIMITING THE FOREGOING, CONTRACTOR
PROVIDES ANY OF CONTRACTOR’S DELIVERABLES “AS IS” WITHOUT ANY
WARRANTY, GUARANTEES OR ASSURANCES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY THAT CONTRACTOR’S DELIVERABLES ARE FIT
FOR THE PURPOSE FOR WHICH CONTRACTOR’S DELIVERABLES ARE USED, OR
THAT CONTRACTOR’S DELIVERABLES ARE ERROR FREE.

     c.   Consequential Damages Waiver. IN NO EVENT SHALL CONTRACTOR BE
LIABLE TO COMPANY 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 COMPANY OR ANY THIRD PARTY INCLUDING ANY END USER,
EVEN IF CONTRACTOR 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, CONTRACTOR’S AGGREGATE LIABILITY TO COMPANY OR ANY THIRD
PARTY FOR CLAIMS RELATING TO THIS AGREEMENT, OR CONTRACTOR’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 CONTRACTOR UNDER THIS AGREEMENT
PRECEDING COMPANY’S INITIAL WRITTEN NOTICE TO CONTRACTOR OF ANY
CLAIM OR POTENTIAL CLAIM HEREUNDER. FURTHERMORE, CONTRACTOR
SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES OF ANY KIND




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WHATSOEVER FOR DELAYS IN MANUFACTURE, ASSEMBLY, SHIPMENT OR
FURNISHING OF CONTRACTOR’S DELIVERABLES.

        e.     Indemnity.     Company shall defend, indemnify and hold Contractor and
Contractor’s affiliates, directors, officers, agents employees and contractors (“Contractor
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 Contractor Indemnitee as a result of: (i)
negligence, misrepresentation, misconduct, error or omission on the part of Company or its
agents, employees or contractors or other representatives relating to or concerning Contractor’s
Deliverables, including their installation, operation, use, maintenance, servicing or repair; or (ii)
Company’s breach of this Agreement.

5.       MISCELLANEOUS

        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. Company shall comply with all
applicable foreign and domestic laws and regulations relating to the importation or exportation of
Contractor’s Deliverables and relating to this Agreement, including without limitation, those
laws and regulations applicable to Company’s marketing, promotion, advertising, distribution
and sale of Contractor’s Deliverables hereunder. In addition to the foregoing, Company shall at
all times maintain those permits, licenses, registrations and authorizations that are required to be
obtained and maintained in order for Company 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.




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        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.

       h.     Choice of Law. 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.

COMPANY:                                                         CONTRACTOR:
__________ [Instructions: Insert name]                           __________ [Instructions: Insert name]



__________________________                                       __________________________
By: Authorized Signatory                                         By: Authorized Signatory




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                                                   EXHIBIT “A”

                                    CONTRACTOR’S DELIVERABLES

      Deliverable                                 Description                   Purchase Price
                                                                          (effective as of __/__/____)
_____________                  _____________                              $_____________


_____________                  _____________                              $_____________


_____________                  _____________                              $_____________


_____________                  _____________                              $_____________


_____________                  _____________                              $_____________


_____________                  _____________                              $_____________


_____________                  _____________                              $_____________




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DOCUMENT INFO
Description: This Exclusivity Agreement can be used between a small business and a contractor or vendor that provides goods/services whereby the small business agrees it will use the contractor exclusively for such goods/services. Customize the information of the parties, the goods/services the contractor provides, the termination procedure, delivery procedure, and much more. This agreement is ideal for individuals or small businesses that want to exclusively provide goods/services for a business.