VIEWS: 10,065 PAGES: 22 CATEGORY: Creating a Sales Agreement POSTED ON: 1/27/2010
This International Distribution Agreement is an agreement between a manufacturer and an international distributor outlining terms such as their respective responsibilities about manufacturing, distribution, ownership and title to products and other intellectual property rights, minimum performance standards, product liability and recall, and restrictive covenants such as non-disclosure and non-competition. This document contains standard language used in this type of agreement; however, the parties may add additional terms and conditions, making it fully customizable to suit the contracting parties’ unique needs. Use this form if one is an manufacturer wanting to enter into an arrangement with an international distributor so that the manufacturer's goods will be distributed in a respective territory.
This International Distribution Agreement is an agreement between a manufacturer and an international distributor outlining terms such as their respective responsibilities about manufacturing, distribution, ownership and title to products and other intellectual property rights, minimum performance standards, product liability and recall, and restrictive covenants such as non-disclosure and non-competition. This document contains standard language used in this type of agreement; however, the parties may add additional terms and conditions, making it fully customizable to suit the contracting parties’ unique needs. Use this form if one is an manufacturer wanting to enter into an arrangement with an international distributor so that the manufacturer's goods will be distributed in a respective territory. INTERNATIONAL DISTRIBUTION AGREEMENT This International Distribution Agreement (hereinafter “the Agreement”) is entered into and effective as of [insert date] by and between by and between the following parties: [Insert Name of Manufacturer] (hereinafter “Manufacturer”) with a principal business address of _________________________; and [Insert Name of Distributor] (hereinafter “Distributor”) with a principal business address of _______________________ _______ ____,collectively referred to as the “Parties.” WHEREAS, Manufacturer manufactures ______________________________________ [insert what the Manufacturer manufactures]; WHEREAS, Distributor desires the right to distribute such products in __________________________________ [mention the territories where the Distributor will distribute the products]; NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and intending to be legally bound hereby, the Parties mutually agree as follows: I. PRODUCTS AND TERRITORY 1.1 Appointment. Subject to the terms and conditions of this Agreement, Manufacturer hereby appoints Distributor on an [non]exclusive basis as its [sole] distributor in the Territory (as defined below) for the sale of the products listed in Exhibit A (the “Products”) during the term of this Agreement. 1.2 Territory. Manufacturer is appointing Distributor hereunder with respect to the resale of Products to any purchasers in ________________________________________________ (the “Territory”). 1.3 Activities outside the Territory. Distributor shall refrain from establishing or maintaining any branch, warehouse or distribution facility for the Products outside of the Territory. Distributor shall not indulge in marketing or advertising the Product and solicit or accept orders from any prospective purchaser with its principal place of business located outside the Territory. 1.4 Requests from outside the Territory. If Distributor receives any order or interest in any order from a prospective purchaser whose principal place of business is located outside the Territory, Distributor shall immediately pass that order to Manufacturer. Distributor shall not accept any such orders. 1.5 Expansion of Products and Territory. Manufacturer reserves the right, in its sole discretion, at any time upon ___ days prior written notice to Distributor, to increase or decrease in any manner the Products. Manufacturer also reserves the right, in its sole discretion, at any time upon ___ days prior written notice to Distributor, to increase or decrease in any manner the Territory, as defined in this Agreement. II. PRICES AND PAYMENT 2.1 Ordering. Distributor shall submit a written purchase order to order Products from Manufacturer by identifying the Products ordered, requested delivery date(s) and any export/import information required to enable Manufacturer to fill the order. All orders for Products are subject to acceptance by Manufacturer. Manufacturer does not have the obligation or liability to Distributor with respect to purchase orders which are not accepted; provided, however, that Manufacturer will not unreasonably reject any purchase order for Products that meets the requirements of this Section 2(a) and that does not request any modifications or additions to the Products. 2.2 Pricing by Manufacturer. If a purchase order is accepted in accordance with Section 2(a) above, the prices for Products covered by such purchase order shall be in U.S. dollars in accordance with the Product and Price List set forth in Exhibit A which may be amended from time to time by Manufacturer, such change being effective immediately upon Distributor’s receipt of notice thereof; provided, however, that no price change shall affect purchase orders offered by Distributor and accepted by Manufacturer prior to the date such price change becomes effective. 2.3 Pricing by Distributor. Distributor reserves the right to establish its own pricing for Products sold. Distributor shall notify Manufacturer of its pricing, as in effect from time to time. 2.4 Limitations. The ultimate shipment of orders to Distributor shall be subject to the right and ability of Manufacturer to make such sales and obtain required licenses and permits, under all decrees, statutes, rules and regulations of the government of the United States and agencies thereof presently in effect or which may be in effect hereafter. 2.5 Distributor Representations. Distributor hereby agrees: (i) to assist Manufacturer in obtaining any required licenses or permits or complying with any other regulatory requirements in the Territory by providing all reasonably requested support, including but not limited to supplying such documentation or information as may be requested by Manufacturer; (ii) to comply with such decrees, statutes, rules and regulations of the government of the United States and agencies thereof; (iii) to maintain the necessary records to comply with such decrees, statutes, rules and regulations; (iv) to not re-export any Products except in compliance with such decrees, statutes, rules and regulations; and (v) to not sell, transfer, or otherwise dispose of the Products in violation of the export laws of the United States. 2.6 Export controls. Distributor hereby expressly acknowledges that the technical data and the direct product thereof are subject to export controls of the United States and agrees that neither the technical data nor the direct product thereof will be transferred, directly or indirectly, to any destination contrary to the requirements of the law of the United States, including but not limited to the terms of any export license and the terms of Part 774 (re-exports) of the U.S. Export Administration Regulations. Further, Distributor hereby provides its assurance that it will © Docstoc®, Inc. 2013 – All Rights Reserved not participate in any transaction which may involve any commodity or technical data, or the direct product thereof, exported or to be exported from the United States, or in any re-export thereof, or in any other transaction that is subject to export controls of the United States, if a person denied export privileges from the United States may obtain any benefit from or have any interest in, directly or indirectly, these transactions. 2.7 Packing and shipment. Unless Distributor requests otherwise, all Products ordered by Distributor shall be packed for shipment and storage in accordance with Manufacturer’s standard commercial practices. It is Distributor’s obligation to notify Manufacturer of any special packaging requirements (which shall be at Distributor’s expense). Risk of loss and damage to a Product shall pass to Distributor upon the delivery of such Product to the common carrier designated by Distributor FCA (Incoterms 2000). All claims for non-conforming shipments must be made in writing to Manufacturer within ___ ( ) days of the passing of risk of loss and damage, as described above. Any claims not made within such period shall be deemed waived and released. 2.8 Payments. All amounts due and payable with respect to a Product delivered by Manufacturer in accordance with the preceding subsection shall be paid in full within ___ ( ) days after receipt of invoice covering such Product by wire transfer, to such bank or account as Manufacturer may from time to time designate in writing. Whenever any amount hereunder is due on Business Day, such amount shall be paid on the next such Business Day. For the purpose of this Agreement, a “Business Day” shall mean a day on which banks in ________________ are open for business. Amounts hereunder shall be considered to be paid as of the day on which funds are received by Manufacturer or into Manufacturer’s account. The payment or any part thereof will not be subject to counterclaim, set-off, adjustment or other right which Distributor might have against Manufacturer, any other party or otherwise. 2.9 Interest. If any amount due to Manufacturer has not been paid to Distributor by the due date thereof shall bear interest at the rate of the lesser of: (i) ___ per annum above the then- current EURIBOR (European Interbank Offering Rate); and (ii) the maximum lawful interest rate permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full. 2.10 Purchase order discrepancy. In the event of any discrepancy between any purchase order accepted by Manufacturer and this Agreement, the terms of this Agreement shall govern. 2.11 Principle ordering terms. Manufacturer shall have the right to modify the terms and conditions on which Products are purchased and sold hereunder, on at least ___ ( ) days prior written notice to Distributor. In the event of any discrepancy between such terms and conditions and this Agreement, the terms of this Agreement shall govern. III. INDEPENDENT CONTRACTOR Distributor is hereby appointed as an independent contractor and not as an employee of the Manufacturer. As an independent contractor, Distributor shall be solely responsible to pay all © Docstoc®, Inc. 2013 – All Rights Reserved applicable taxes, including, but not limited to, social security, self-employment taxes and disability insurance. Neither the Distributor nor its employees shall be entitled to participate in any Manufacturer plans, arrangements or distributions pertaining to any pension, stock, bonus, profit sharing or similar benefits. Neither Distributor nor any individual, whose compensation for services is paid for by Distributor, is in any way employed by Manufacturer, nor shall any of them be deemed to be employed by Manufacturer for any purpose. Distributor accepts exclusive liability for any and all payroll taxes or contributions according to the laws of the Territory with respect to sales agents and/or other individuals whose compensation is paid by Distributor. IV. OBLIGATIONS OF DISTRIBUTOR 4.1 Facilities and resources. Distributor shall make the best efforts to employ competent and experienced service personnel, provide appropriate facilities and resources to provide prompt and adequate service to the users of the Products in the Territory. Distributor shall provide adequate and appropriate training to its staff concerning the Products. 4.2 Promotional Materials. Distributor shall make use of various promotional materials such as sales and technical literature, promotional artwork and training materials provided by Manufacturer. Distributor may be allowed to modify such materials or develop any other materials in connection with the marketing and distribution of Products (including but not limited to product brochures and sales aids), subject to Manufacturer’s review and written approval prior to any use of such materials. Manufacturer shall retain all right, title and interest in and to such materials. 4.3 Customer Service. Distributor shall provide customer service such as, but not limited to, taking orders, responding to customer inquiries, fulfilling requests for quotes on Product pricing, and forwarding Product complaints to Manufacturer on a timely basis and shall provide such assistance and information to customers as is reasonably requested by Manufacturer. 4.4 No debarred or disqualified persons. Distributor warrants that it shall not employ, contract with, or retain any person directly or indirectly to perform services under this Agreement if such person is (i) debarred by either the U.S. Food and Drug Administration under 21 U.S.C. § 335(a) or any equivalent law or regulation in the Territory, or (ii) disqualified as described in 21 C.F.R. § 812.119, or any equivalent law or regulation in the Territory. In the event that Distributor becomes aware of the debarment or disqualification of any person providing services to Distributor which relate to services being provided under this Agreement, Distributor agrees to notify Manufacturer immediately. 4.5 Distributor to use best efforts. Distributor agrees to use its best efforts to promote and market the Products to the maximum number of customers in the Territory. Distributor and Manufacturer shall mutually agree in writing on the sales promotion activities and performance objectives to be met by Distributor for Manufacturer’s fiscal year. Upon entering into this Agreement, Distributor and Manufacturer will jointly determine Distributor’s performance objectives for Manufacturer’s fiscal year which will be attached hereto as Exhibit C. The establishment of performance objectives will be repeated annually. Failure to meet any minimum established performance objectives shall constitute a material breach of this Agreement. © Docstoc®, Inc. 2013 – All Rights Reserved V. MANUFACTURER’S OBLIGATIONS 5.1 Assistance. Manufacturer shall provide Distributor with marketing and technical assistance and free Product samples time to time as Manufacturer may in its discretion consider necessary to assist with the promotion of the Products. 5.2 Training. Manufacturer shall provide product launch training to Distributor’s personnel in connection with the marketing, sale, maintenance and support of the Products. VI. REPORTING Distributor shall provide Manufacturer with written quarterly [or monthly or annual] reports, in relation to customer call, business trends, sales forecasts for the significant customers in the Territory, market forecasts and other reports requested by Manufacturer. Distributor shall further notify Manufacturer immediately of all complaints from customers regarding the Products and all adverse events and adverse reactions that may be attributable to a customer’s use of the Products, whether or not Distributor can confirm that the event is actually associated with the Product, [and whether or not Distributor can confirm that the event was due to improper dosing or other negligence on the part of the physician or patient]. In the event of an actual or alleged malfunction or defect of a Product, Distributor or its representatives or agents shall not make any statement as to the cause, prior to receiving Manufacturer’s written analysis of such malfunction or defect, and shall thereafter make no statements contrary to or inconsistent with the results of such analysis. VII. PRODUCT RECALL If either Party believes that a recall of any Products in the Territory is necessary or required by law in the Territory or elsewhere, it shall immediately notify the other Party. The Parties shall then discuss reasonably and in good faith whether such recall is appropriate or required and the manner in which such recall should be handled. It is Manufacturer’s exclusive right to issue recalls, safety alerts, advisory notices or similar remedial actions with respect to the Products. In the event of such remedial action, Distributor agrees to fully support and co-operate with Manufacturer to comply with applicable laws and regulations, and Distributor will notify its customers and, upon Manufacturer’s request, retrieve identified Products. VIII. TRADEMARKS, SERVICE MARKS AND OTHER INTELLECTUAL PROPERTY 8.1 Intellectual Property. Manufacturer hereby grants Distributor the non-exclusive right to use Manufacturer’s trade names, trademarks, service marks that are designated by Manufacturer for each Product (the “Manufacturer Intellectual Property”) on a non-exclusive basis in the Territory, for the term of this Agreement and solely in connection with selling, marketing and distributing the Products in accordance with this Agreement. Distributor shall not at any time do or permit any act to be done which may in any way impair the rights of Manufacturer in the Manufacturer Intellectual Property or the value of the Manufacturer Intellectual Property. © Docstoc®, Inc. 2013 – All Rights Reserved 8.2 Quality Control. In order to comply with Manufacturer’s quality control standards, Distributor shall: (i) use the Manufacturer Intellectual Property by complying with all relevant laws and regulations; (ii) agree to the Manufacturer’s right to inspect during normal business hours, without prior advance notice, Distributor’s facilities used in connection with efforts to store or sell the Products in order to attempt to confirm that Distributor’s use of such Manufacturer Intellectual Property is in compliance with this provision; and (iii) not modify any of the Manufacturer Intellectual Property in any way and not use any of the Manufacturer Intellectual Property on or in connection with any goods or services other than the Products. 8.3 Inventions. Any inventions, improvement, developments developed, conceived, or reduced to practice by Distributor that relate to the Products (including any associated delivery systems), and any intellectual property relating thereto, shall be owned solely by Manufacturer. Distributor hereby assigns and transfers to Manufacturer all right, title, and interest in and to such inventions and related intellectual property and agrees to take all further acts reasonably required to evidence such assignment and transfer to Manufacturer, all at Manufacturer’s expense. Manufacturer hereby grants to Distributor a nonexclusive, royalty-free, nontransferable, nonsublicenseable license to such improvements made by Distributor for uses other than in the Products and associated delivery systems. 8.4 Notice of Intellectual Property Infringement. Distributor shall promptly notify Manufacturer in writing of any patent or copyright infringement or unauthorized use of Manufacturer trade secrets or trademarks in the Territory of which Distributor becomes aware. Manufacturer shall have the exclusive right in its sole discretion to institute any proceedings against such third party in its name and on its behalf. Distributor shall cooperate fully with Manufacturer in any legal action taken by Manufacturer against such third parties, provided that Manufacturer shall pay all expenses of such action and all damage relating to damage suffered personally by Manufacturer which may be awarded or agreed upon in settlement of such action shall accrue to Manufacturer. 8.5 Title to Products. Distributor acknowledges that the Products listed in Exhibit A are the property of Manufacturer, and that the Products are being made available to Distributor in confidence and solely on the basis of its confidential relationship to Manufacturer. IX. NON COMPETITION During the term of this Agreement, Distributor shall not market directly or indirectly in the Territory any product similar to Products which are subject of discussion in the Agreement. In the event the Distributor breaches the terms of this Article IX, Distributor’s appointment as exclusive distributor of Products under Section 1A, if any, will convert to an appointment as a non-exclusive distributor of Products, which remedy shall not be exclusive of, and shall be in addition to, any other remedies available to Manufacturer at law or in equity with respect to such breach. IX. LIMITED WARRANTY © Docstoc®, Inc. 2013 – All Rights Reserved 9.1 Representations by Manufacturer. Manufacturer warrants that, at the time of shipment, Product supplied by Manufacturer hereunder (i) shall meet the Product specifications agreed to in writing by the Parties, (ii) shall not be adulterated or misbranded within the meaning of the U.S. Food, Drug and Cosmetic Act (the “Act”) or other applicable laws that are equivalent thereto in the Territory, and in which the definitions of adulteration and misbranding are substantially the same as those contained in the Act, (iii) ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________[Add additional warranties]; provided, however, that Manufacturer shall not be liable for any of the foregoing with respect to any product labeling or package inserts to be provided or used by Distributor, or any translation thereof, or for any noncompliance with the foregoing due to the handling or packaging of Product by Distributor. 9.2 Limitations. Under no circumstances shall the warranties set forth in Article 9.1 apply to any Product which has been used with unapproved components or to any Product which has been customized or modified, damaged, reused, or misused. In the event that the warranties set forth in Article 9.1 are breached and Manufacturer is responsible for such breach, Manufacturer will replace the defective product at no cost to Distributor. THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF AN OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). MANUFACTURER’S LIABILITY ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLY OF THE PRODUCTS UNDER THIS AGREEMENT OR THE USE OR DISPOSITION OF PRODUCTS BY DISTRIBUTOR OR ITS CUSTOMER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY DISTRIBUTOR FOR THE PRODUCTS. IN NO EVENT SHALL MANUFACTURER BE LIABLE TO DISTRIBUTOR OR ANY OTHER PERSON OR ENTITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES) ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLY OF THE PRODUCTS, EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. X. REPRESENTATIONS BY DISTRIBUTOR; DISTRIBUTOR COVENANTS 10.1 Distributor hereby represents and warrants to Manufacturer that, as of the Effective Date: A. it is has the corporate authority and legal power to enter into this Agreement and that the terms of this Agreement do not conflict with and are not inconsistent with any other of its contractual obligations. B. it is validly existing and in good standing as a corporation under the laws of _________ (country of incorporation), and has all necessary corporate power to perform its obligations under this Agreement and its financial resources are sufficient to enable it to perform all of its obligations under this Agreement. © Docstoc®, Inc. 2013 – All Rights Reserved C. it has not at any time in the past three (3) years been involved, and is not currently involved, in any litigation or disciplinary action before a regulatory authority or under the laws of any country, and to its knowledge no such proceedings are anticipated to commence during the term of this Agreement; XI. INDEMNIFICATION 11.1 Manufacturer shall indemnify, hold harmless and, at no expense to Distributor, defend Distributor and Distributor’s affiliates (if any), and its and their respective directors, officers, employees, and authorized agents and other representatives (each a “Distributor Indemnified Party”) from and against any and all third-party claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and costs) (collectively, “Third-Party Claims”), arising from, or related in any manner whatsoever to: i. any actual or alleged breach of this Agreement, or violation of applicable law, by Manufacturer; ii. any actual or alleged infringement or other violation of a third-party’s intellectual property rights by Manufacturer; or iii. any material defect in the Product. 11.2 Distributor shall indemnify, hold harmless and, at no expense to Manufacturer, defend Manufacturer and its affiliates (if any), and its and their respective directors, officers, employees, and authorized agents and other representatives (each a “Manufacturer Indemnified Party”) from and against any and all third-party claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and court) (collectively, “Third-Party Claims arising from, or related in any manner whatsoever to: i. any actual or alleged breach of this Agreement: ii. any actual or alleged infringement or other violation of a third-party’s intellectual property rights by Distributor. 11.3 The right of either party (“Indemnified Party”) to indemnification and/or a defense (collectively, “Indemnity”) hereunder by the other Party (“Indemnifying Party”) shall be conditioned on the following: [Tip: Docstoc has several resources available regarding detailed Indemnification Agreements including plug-in provisions that can that can be used in conjunction with this Agreement]. i. The Indemnified Party must give the Indemnifying Party prompt written notice of the Third-Party Claim, for which it is seeking Indemnity, although the Indemnified Party’s failure to provide such prompt notice will not relieve the Indemnifying Party of any obligation or liability under this Section except to the extent the Indemnifying Party has been materially prejudiced by such failure; ii. The Indemnifying Party shall have sole control of the defense and any settlement or other resolution of such Third-Party Claim with legal counsel of the Indemnifying Party’s choice, so long as the representation is zealous, legal counsel is reputable, there is no conflict of interest in representing the Indemnified Party, and the Indemnified Party is recognized as the client of legal counsel; © Docstoc®, Inc. 2013 – All Rights Reserved iii. The Indemnified Party shall at all times fully cooperate with, and at the Indemnifying Party’s expense, provide such assistance as reasonably requested by the Indemnifying Party, in connection with any investigation or defense of such Third-Party Claim; and iv. The Indemnified Party shall not enter into any settlement, compromise or other resolution of such Third-Party Claim, without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed. 11.4 Notwithstanding anything to the contrary herein, no compromise or settlement of any such Third-Party Claim may be committed to by the Indemnifying Party without the Indemnified Party’s prior written consent, unless: i. it includes a full discharge and release of liability for the Indemnified Party; and ii. it involves no admission or commitment by or on behalf of the Indemnified Party other than the payment of money to be fully indemnified hereunder by the Indemnifying Party. 11.5 As used herein, “affiliate” means any and all parties, who directly, or indirectly through one (1) or more intermediaries, control, are controlled by, or are in common control with, either party hereto. 11.6 Distributor shall indemnify and hold the Manufacturer, its employees and representatives harmless from any loss, damage, expenses or liability, including, without limitation, court fees, arising out of fraud, material misrepresentation, negligence, intentional misconduct or violation of any requirements imposed by any applicable federal or state law by the Distributor under this Agreement. XII. INSURANCE During the term of this Agreement and for four (4) years thereafter, Distributor shall maintain an insurance policy issued by a reputable insurance underwriter, naming Manufacturer as an additional insured, which policy shall insure against any and all claims, liabilities, costs or expenses resulting from or caused by (or claimed to be resulting from or caused by) any use or operation of any products sold by Distributor in the amount of at least _________ ($ _____) dollars per claim, and __________ ($______) dollars for claims in the aggregate. XIII. TERM/TERMINATION 13.1 Term. The term of this Agreement shall begin on the later of: (i) the date upon which Manufacturer executes this Agreement and (ii) the date upon which Distributor executes this Agreement (the later of such dates being referred to as the “Effective Date”). Unless terminated earlier pursuant to the terms of this Section, the term of this Agreement shall be ____ ( ) years following the Effective Date, renewable for additional ___ ( ) year terms on the mutual written agreement of the Parties. © Docstoc®, Inc. 2013 – All Rights Reserved 13.2 Termination. Manufacturer may terminate this Agreement at any time upon _____ ( ) days written notice to Distributor. 13.3 Termination for material breach. This Agreement may be terminated, in the event of a material breach or default as to any obligation hereunder by either party and the failure of the breaching party to cure such material breach or default within thirty (30) days after receiving written notice thereof from the non-breaching party, such termination being immediately effective upon the giving of such notice of termination. Material breach includes, but is not limited to, (i) breach by Distributor of the provisions set forth herein; (ii) impairment by Distributor of Manufacturer’s rights in the Manufacturer Intellectual Property, (iii) failure to use best efforts or order minimum quantities, (iv) engaging in any act that is detrimental to Manufacturer, the Products, or Manufacturer’s reputation, or (v) any breach of any covenant, representation or warranty in this Agreement. 13.4 Change of Control of Distributor. In the event of a Change of Control of the Distributor, Manufacturer may terminate this Agreement by giving written notice of termination to Distributor, such termination being immediately effective upon the giving of such notice of termination. 13.5 Bankruptcy. Upon the filing of a petition in bankruptcy, insolvency or reorganization against or by either party, or either party becoming subject to a composition for creditors, whether by law or agreement, or either party going into receivership or otherwise becoming insolvent (the “Insolvent Party”), this Agreement may be terminated by the other party by giving written notice of termination to the Insolvent Party, such termination immediately effective upon the giving of such notice of termination. 13.6 No Compensation. In the event of a termination pursuant to Article XIII or upon expiration of this, Manufacturer shall not have any obligation to Distributor, or to any employee of Distributor, for compensation or for damages of any kind, whether on account of the loss by Distributor or such employee of present or prospective sales, investments, compensation or goodwill. Distributor, for itself and on behalf of each of its employees, hereby waives any rights which may be granted to it or them under the laws and regulations of the Territory or otherwise which are not granted to it or them by this Agreement. Distributor hereby indemnifies and holds Manufacturer harmless from and against any and all claims, costs, damages and liabilities whatsoever asserted by any employee, agent or representative of Distributor under any applicable termination, labor, social security or other similar laws or regulations. 13.7 Payments owed on termination. Termination of this Agreement shall not affect the obligation of Distributor to pay Manufacturer all amounts owing or to become owing as a result of Products tendered or delivered to Distributor on or before the date of such termination, as well as interest thereon to the extent any such amounts are paid after the date they became or will become due pursuant to this Agreement. XIV. PUBLICITY © Docstoc®, Inc. 2013 – All Rights Reserved Distributor agrees that any publicity or advertising which shall be released by it in which Manufacturer is identified in connection with the Products shall be in accordance with the terms of this Agreement and with any information or data which Manufacturer has furnished in connection with this Agreement. Copies of all such publicity and advertising shall be forwarded promptly to Manufacturer. XV. MANUFACTURER OFFICE IN THE TERRITORY Manufacturer may from time to time maintain an office at one or more locations in or near the Territory. Personnel associated with such office or offices shall be authorized to and may, from time to time, act on behalf of Manufacturer and shall be entitled to exercise all of the rights of Manufacturer under this Agreement. Such personnel shall be entitled to all information with respect to all matters relevant to Distributor’s performance under the Agreement, and Distributor shall at all times cooperate with such personnel with respect to all such matters. XVI. CONFIDENTIALITY [Tip: Docstoc has several resources available regarding detailed Confidentiality Agreements that can that can be used in conjunction with this Agreement]. 16.1 "Confidential Information" shall mean any information which the disclosing Party considers proprietary or confidential and identifies in writing or orally to be confidential or proprietary, but shall not include (i) information which at the time of disclosure was already in the public domain; (ii) information which subsequent to disclosure is made public through no fault of the receiving Party; (iii) information which was lawfully in its possession prior to disclosure, or independently developed by it without access to or use of any of the disclosing Party's confidential information, or (iv) information lawfully received from a third party who was not subject to confidentiality obligations with respect to such information. 16.2 Each Party will safeguard and prevent the disclosure to any third party the Confidential Information of the other, exercising a standard of care not less than that used by the receiving Party to protect its own confidential information. Each Party shall, upon the request of the other party or upon the termination or expiration of this Agreement, return or destroy all tangible copies of any Confidential Information of the other Party in its possession, and shall further delete or destroy any copies of such Confidential Information stored in any computer memory or electronic storage device. The requirements of this section will survive the termination or expiration of this Agreement. XVII. RESPONSIBILITY FOR TAXES Taxes in any state or country, now or hereafter imposed with respect to the transactions contemplated hereunder (with the exception of income taxes or other taxes imposed upon Manufacturer and measured by the gross or net income of Manufacturer) shall be the responsibility of Distributor, and if paid or required to be paid by Manufacturer, the amount thereof shall be added to and become a part of the amounts payable by Distributor hereunder. XVIII. MODIFICATION OF PRODUCTS © Docstoc®, Inc. 2013 – All Rights Reserved Distributor may not customize, modify or have customized or modified any Product unless it obtains the prior written consent of Manufacturer, which consent may be withheld in the sole discretion of Manufacturer. Any unauthorized customizing or modification of any Product by Distributor or any third party shall relieve Manufacturer from any obligation it would otherwise have had with respect to such Product under the warranties described herein. XIX. GENERAL 19.1 Force Majeure. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of nature or God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment, or decree, [which makes fulfilling his/her/its obligations or responsibilities unlawful, unless such Party should or shall be able to come into compliance reasonably quickly and without prejudicing the other, including by unreasonable delay] (each a “Force Majeure Event”). Or Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused (I) by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. 19.2 Successors and Assigns. The Parties agree that this Agreement shall be binding upon each of its successors and assigns and that this Agreement may not be assigned to any other third party, without the written consent of Manufacturer, which shall not be unreasonably withheld. 19.3 Amendments. No modification, supplement, termination, extension, waiver or amendment to or of this Agreement (or any attachments or exhibits) or any of its provisions may be made, and any attempts, shall not be binding unless agreed to by the Parties in writing, by pen on paper, by duly authorized representatives of the Parties. There shall be no oral agreements. Electronic writings, including E-mail messages, text messages, tweets, instant messages, etc., their contents, and any attachments, and any prior or subsequent communications including oral discussions or negotiations concerning some or all of the Agreement, or anything at all, are not intended to represent and do not reflect an offer or acceptance to enter into (or amend, modify, revise, terminate, abrogate, extend, waive a breach or damages of, etc.) a binding contract, transaction or agreement, and are not intended to and do not bind any party to this Agreement. The Parties may determine that they wish to attempt to negotiate a written agreement that is binding that amends, modifies, revises, terminates, abrogates, © Docstoc®, Inc. 2013 – All Rights Reserved extends, waives a breach or damages of, this Agreement , however, the Parties intend and will continue to intend that there shall be no contract formations, waivers, modifications, abrogations, extensions, amendments, etc., without one or more formal written documents executed non electronically but with holographic signatures by hand with ink pen on paper signed by a duly authorized representative of each of the Parties (aka “wet signatures” or “pen on paper signatures”). Any communication to the contrary in the past, now or future, is not binding on any party to this Agreement. Absent the written express statement to the contrary as set out below, it is the intention of the Parties, and the Parties agree not to conduct any contract formation, modifying transaction, amend any agreement, abrogate any agreement, grant any extension, or waive any right by electronic writing. Any alleged communication to the contrary is not binding on any party. The written express statement mentioned above ("electronic express statement") shall be the following, or that which expresses the same intent as the following: “I expressly intend that this shall constitute an electronic signature to a writing thereby [forming, modifying, amending, abrogating, granting an extension in relations to, or waiving a breach to] a binding [contract or agreement].” For purposes of any agreement, a formal written document on paper with wet signatures (pen on paper signatures) and otherwise consistent with the requirements herein, which is transmitted by facsimile, the internet, or any cell/wireless/mobile telephone system, or the like, as an image or .pdf document is valid when signed by pen on paper by all Parties to be charged. The Parties expressly state and intend that Emails / texts / tweets / instant messages, etc., sent or received - even when there are multiples or combinations of these - do not include all of the essential or material terms required in order for there to be a legally binding agreement or contract between the Parties, and are ineffective for purposes of contract formation, modification, amendment, waiver, etc., without the electronic express statement mentioned above. No addition to or modification or consensual cancellation of this Agreement, notice or statement shall be binding unless made in one or more formal written documents consistent with the pen on paper or "electronic express statement" requirements herein. Any purported communication to the contrary is not binding. 19.4 Waiver. No waiver of any breach of any provision of this Agreement, notice or statement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and wet signed by pen on paper or electronic express statement as set out herein. [Tip: If you wish to allow emails that reflect some formality, and that you have given adequate and due consideration to the matter, to be used for amendments, for example, to add to a schedule of deliverables, this version of the document does allow formal emails with special language in them to be used. Therefore if you do not wish to allow that, and only wish for there to be signatures by pen on paper you may wish to edit this document by removing the portions in this section that are highlighted in gray. If you allow this you will want to remove the gray highlight from the final version of the Agreement before you print it. And then you will want to delete this note.] 19.5 Notices. Any notice required, permitted to be given, or otherwise given hereunder may be effectively given by letter delivered either by personal delivery, registered mail certified return receipt requested, postage prepaid, or delivered by overnight delivery service, or by facsimile machine upon receipt from the sender of a confirmation of receipt, or by other electronic means so long as the recipient has acknowledged receipt (for purposes of this section an automatically generated receipt confirmation does *not* qualify as acknowledgement of receipt), addressed to the recipient as follows: © Docstoc®, Inc. 2013 – All Rights Reserved In the case of Manufacturer: Manufacturer Attn: _____________ Tel: __________________ Fax: __________________ Email: _______________________ In the case of Distributor: Distributor Attn: _____________ Tel: __________________ Fax: __________________ Email: _______________________ 19.6 Governing Law. This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of ___________________ as they apply to agreements entered into and to be performed by the Parties herein. 19.7 Venue. The Parties further agree that venue of any legal action or claim hereunder shall be exclusively in and with a court having jurisdiction over __________ County, __________ , if disputes are to be resolved in Court, if at all, as set out below, or where arbitration or mediation is to occur, if at all, as set out below. The Parties further agree and hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the State of ________ and _________County. Notwithstanding the foregoing either party may seek equitable, preliminary, or permanent injunctive relief from any court of competent jurisdiction, which rights and remedies shall be cumulative and in addition to any other rights or remedies at law or in equity to which either party may be entitled. 19.8 Dispute Resolution. [TIP: This section deals with how disputes are to be resolved. How would the Parties like to resolve disputes, should any arise? While everyone usually hopes to avoid disputes and breaches of contract those can arise for various and many reasons, including because the Agreement is ambiguous or uncertain in some respect, or a party is negligent or willfully acts contrary to one or more terms or provisions of the Agreement. There are various important choices available to the Parties in resolving disputes, conflicts and breaches or violations of this Agreement that the Parties are not able to resolve consensually by themselves or through their respective representatives or attorneys. These include mediation, non-binding arbitration, binding arbitration, and judicial litigation. While this Agreement anticipates that the Parties will engage in judicial litigation, and contains a very simple provision about that, you may wish to consider the other options as well. Docstoc has several resources available regarding dispute resolution including plug-in provisions for mediation, non-binding arbitration, binding arbitration, and judicial litigation available here]. The Parties shall endeavor to resolve any differences of opinion which may arise between them with respect to the provisions of this Agreement by negotiation between themselves personally or with the © Docstoc®, Inc. 2013 – All Rights Reserved assistance of their attorneys and unless in the opinion of any party, acting reasonably, the matter in dispute is of such a significant nature to warrant it being addressed otherwise, no party shall commence any public proceedings until the negotiations have failed to produce a resolution. In furtherance of the provisions of this paragraph, all Parties hereby agree to make themselves available on short notice and to negotiate promptly and in good faith, any matter any party may wish to negotiate. If there is no resolution then the Parties agree that any dispute, claim, or action hereunder shall be resolved exclusively in and with a court of law or equity having jurisdiction over the Parties and subject matter. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. 19.9 Entire Agreement. This Agreement shall constitute the entire agreement between the Parties and will supersede all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. The Parties shall not be bound or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings not specifically set forth in this Agreement. This Agreement has been carefully drafted and the Parties are convinced that this document completely and clearly expresses their intentions. Further, the Parties place great value on the quick and inexpensive resolution of any dispute that may arise between them concerning this contract or the subject hereof. Therefore, the Parties agree that: (i) all disputes concerning this Agreement or the subject matter hereof shall be resolved as provided herein; (ii) this Agreement constitutes the sole agreement among the Parties, and supersedes any and all prior or contemporaneous oral or written agreements, promises, or understandings among them, pertaining to the matters contemplated in this Agreement; (iii) no express or implied representations, warranties, or inducements have been made by any party to any other party except as set forth in this Agreement; (iv) this Agreement may not be amended, added to, or altered except by a writing duly executed by each of the Parties hereto, as set forth herein; and (v) no parole or extrinsic evidence whatsoever may be introduce or considered in any judicial or arbitration proceeding involving this Agreement, for any purpose, including to interpret, explain, clarify, or add to this Agreement, except in any instance in which a provision is found in whole or in part to be invalid, illegal or unenforceable and subject to severability and the arbitrator or court undertakes to re- write or construe the severed provision as closely as possible to conform to the intent of the Parties. 19.10 Severability. Each of the provisions of this Agreement (and each part of each such provision) is severable from every other provision hereof (and every other part thereof). In the event that any provision (or part thereof) contained in this Agreement or the application thereof to any circumstance shall be invalid, illegal or unenforceable, in whole or in part, and to any extent: (i) the validity, legality or enforceability of such provision (or such part thereof) in any other jurisdiction and of the remaining provisions contained in this Agreement (or the remaining parts of such provision, as the case may be) shall not in any way be affected or impaired thereby; (ii) the application of such provision (or such part thereof) to circumstances other than those as to which it is held invalid, illegal or unenforceable shall not in any way be affected or impaired thereby; (iii) if possible, such provision (or such part thereof) shall be construed or re-written as closely as possible to conform to the intent of the Parties, in which instance parole or extrinsic evidence may be considered to do so; (iv) if not susceptible to such construction, such provision (or such part thereof) shall be severed from this Agreement and ineffective to the extent of such invalidity, illegality or unenforceability in such jurisdiction and in such circumstances; and (v) © Docstoc®, Inc. 2013 – All Rights Reserved the remaining provisions of this Agreement (or the remaining parts of such provision, as the case may be) shall nevertheless remain in full force and effect. 19.11 Headings. The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this Agreement. Such headings shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part thereof, nor shall they otherwise be given any legal effect. 19.12 No Unannounced Modifications to Signature Documents. The Parties have reviewed (and, if applicable, negotiated) this Agreement, in its electronic form. They desire to sign the hard-copy version without having to re-read it to confirm that no unauthorized changes were made before the final printout. Accordingly, by signing and delivering this Agreement, and/or any exhibit, amendment, or addendum to it, now or in the future, each Party represents that it has not made any changes to any other draft provided to (or by) the other party, unless the signing Party has redlined the changes or otherwise expressly called them to the other party’s attention in writing. (Non-substantive format clean-up and correction of immaterial spelling errors need not be redlined.) 19.13 Waiver. A waiver by either party of any provision of this Agreement in any instance shall not be deemed to waive it for the future. A Party’s failure to insist on strict compliance with any of the terms of this Agreement on one or more occasions is not a waiver of any rights or obligations under this Agreement. 19.14 Survival. Those sections of this Agreement, that should logically survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement. 19.15 Construction. If there is any controversy regarding this Agreement or the terms of this Agreement, this Agreement, will be deemed to have been drafted by all Parties herein and will not be strictly construed as against any party. The Parties have been made aware of their right and opportunity to consult with independent legal counsel and have either done so, or knowingly waive the right to do so. Further, the Parties acknowledge that they have engaged in negotiations to reach this Agreement. 19.16 Counterparts. This Agreement, may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same agreement, including the judicial proof of any of the terms hereof. A photocopy, fax copy, or electronic image copy, which depicts the inclusion of one or more signatures by pen on paper, shall be deemed an original. 19.17 Attorneys’ Fees. In the event of litigation or arbitration relating to the subject matter of this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement. IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of the day and year first written above. © Docstoc®, Inc. 2013 – All Rights Reserved Manufacturer Distributor Per: Per: Name: __________________ Name: _____________________ Title: Title: ____________________ I have authority to bind Manufacturer. I have authority to bind Distributor. © Docstoc®, Inc. 2013 – All Rights Reserved EXHIBIT A PRODUCT CLASS AND PRICE LIST © Docstoc®, Inc. 2013 – All Rights Reserved EXHIBIT B PRINCIPLE ORDERING TERMS © Docstoc®, Inc. 2013 – All Rights Reserved EXHIBIT C MINIMUM QUARTERLY PURCHASE ORDERS (IN UNITS) © Docstoc®, Inc. 2013 – All Rights Reserved
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