Appointment of a Distributor for Consumer Products[CD1]
THIS AGREEMENT is made
at __________ on the _______ day of _____________ 200___ BETWEEN MESSRS RISHIT
FOODS AND ICE CREAMS PRIVATE LIMITED, a Company incorporated under the
Companies Act, 1956 having its registered office at _______________
______________________________, hereinafter referred to as “THE COMPANY”
(which expression shall unless it be repugnant to the context or meaning
thereof be deemed to mean and include its’ successors and assigns) of the ONE
PART; AND _____________________, hereinafter referred to as “THE
DISTRIBUTOR” (which expression shall unless it be repugnant to the context
or meaning thereof be deemed to mean and include his/their heirs, executors and
administrators) OF THE OTHER PART;
W H E R E A S:
(a) The Company is the exclusive Marketing Agent
for India of “BOOGIE WOOGIE ICE CREAMS” and other milk and dairy
products (herein referred as the “said goods”) and is duly authorized to
appoint within the said territory of India distributors for all products
manufactured under the above brand/trade name/mark.
(b) The Distributor is desirous of being appointed
as the Distributor for the said goods in the territory of _________________
(herein referred as the “said territory”) on the terms and conditions
appearing hereinafter.
NOW THIS DEED WITNESSETH AS BELOW:
1. The
Distributor is hereby appointed as the distributor of the Company for
the said territory of ___________ for sale of the said goods on the terms and
subject to the conditions set out below.
2. For the
due performance of this agreement, the Distributor shall deposit an interest
free security deposit of
Rs. _____________/- (Rupees _____________________________ only) with the
Company. The Company shall be at full liberty to increase the amount of the
said security deposit any time hereafter and the said increased deposit shall
accordingly be deposited by the Distributor with the Company, without raising
any objection, within a period of one month from the date of the Company making
the demand for the same. On determination of this agreement, as hereinafter
provided, the Company shall refund the said deposit to the distributor without
interest after deduction of the amounts payable, if any, by the Distributor to
the Company under these presents.
3. The
Company shall supply the said goods to the Distributor on the basis of cash
payment against the delivery. The Company will accept the cash/local
cheques/demand drafts/pay orders/bankers’ cheques towards the payment of its
bills. No outstation cheques will be accepted.
4. The
Company shall raise its bills/Invoices on the Distributor at the rates from
time to time set and/or fixed by the Company as the dealer’s price. The
invoices will allow discount of _______% on the dealer’s price. In addition to
the said rates, the Distributor shall be liable to separately pay octroi duty,
entry taxes and any other cess including service tax, central and state sales
tax as applicable and leviable on the goods delivered to them.
5. The
Company will effect delivery of the said goods to the cold storage of the
Distributor. Thereafter, it shall be the sole responsibility of the Distributor
to preserve and keep the said goods in good condition and the Company will not
be responsible for deterioration of the goods stored by the Distributor. The
Distributor shall be required to manage, at his own cost, and with his own
labour and transportation arrangements the distribution and marketing of the
said goods to the dealers/retailers within the said territory.
6. The
distributor shall, at the time of delivery, receive the goods after due
inspection. If at any time, it is observed that the said goods or part thereof
are in damaged condition, in that case the Distributor is required to
immediately, at the time of receipt itself, inform the company about the same
by endorsing specific details of such damaged condition on the Company’s copy
of the sale bill/invoice/Delivery Challan. Any subsequent claim or complaint by
the Distributor in that behalf will not be entertained by the Company. Goods
once delivered in good condition cannot be returned to the Company.
7. The
Company shall, for better preservation of the said goods, supply its Deep
Freezers worth Rs. ______________/- (Rupees ____________________ only) to the
Distributor on the following terms:—
(a) The Ownership of the Deep Freezers shall always
be that of the Company and at no time the Distributor shall be entitled to
claim any right, title, interest or lien on the same.
(b) The Distributor shall deposit with the Company
50% of the aforesaid amount of Rs. _______________/- (Rupees
___________________________ only) being the additional security deposit free of
any interest. This deposit is in addition to the security deposit referred in
Clause 2 above.
(c) The Deep Freezers will be supplied to the
Distributor on hire basis. The Distributor shall be required to pay initially
nominal hire charges at the rate of
Rs. __________/- per month per Deep Freezer. The Company has full liberty to
review the said hire charges anytime hereafter without any notice to the
Distributor. The Distributor shall not be entitled to raise any objection to
such increase. The hire charges shall be payable irrespective of the fact
whether the said Deep Freezers are actually used or not or for any other reason
whatever. The Distributor shall, take all reasonable care to keep
the said Deep Freezers in good condition and in
working order.
(d) The Distributor shall pay the aforesaid hire
charges in advance on or before 5th day of
every month. The Distributor shall issue twelve cheques in advance for 12
months’ hire charges and on expiry of the said period shall from time to time
issue further fresh cheques
in advance for every subsequent 12 months. The Distributor assures to honour
the said cheques at the
first presentation.
(e) The Distributor may, with the prior approval of
the Company in writing, keep the said Deep Freezers at the place of his dealers
at his risk subject to terms and conditions hereof. The Distributor shall
expressly clarify to the dealer that the said Deep Freezers are the absolute
property of the Company. In any event it shall be the
sole obligation and responsibility of the Distributor to pay the hire charges
and for safe return of the said
Deep Freezers to the Company on determination of the present agreement.
(f) The Company shall carry out major repairs of
the said Deep Freezers. At the end of every month the Distributor shall in
addition to the hire charges also pay a sum of
Rs. __________/- per Deep Freezer to the Company towards maintenance and
service expenses. However, the Company shall not be responsible for any repairs
required due to any act of negligence of the Distributor or his staff or of the
Distributor’s dealer and the Company’s decision in that behalf shall be final.
The Company’s liability for repairs and maintenance of the said Deep Freezers
in no case shall exceed Rs. _____________/- per annum. Any additional
maintenance/repairs required shall be for and on account of the Distributor.
(g) The Distributor shall not be entitled to
withhold the payment of hire and/or maintenance charges on the ground that the
said Deep Freezers were under repairs or not being used or on any other ground.
(h) The Distributor and/or his dealers shall, in
the said Deep Freezers, store goods only of the Company and shall not store
therein goods of any other party.
(i) The Company shall not be held responsible or
liable if stocks deteriorate due to failure of mechanism of Deep Freezers for
any reason whatever including power failure. The Distributor at his cost and
expense shall take out necessary insurance for the stocks.
(j) If the Distributor shall collect any deposit
in respect of the said Deep Freezers from the dealers in excess of the deposit
paid to the Company, in that case the Distributor shall remit such excess
deposit to the Company. The Distributor shall submit a six monthly statement
relating to the said Deep Freezers disclosing information as to the dealers
with whom they are kept and the amounts of deposits received from them.
(k) The said Deep Freezers being absolute and
exclusive property of the Company, the Distributor and/or his dealers shall not
be entitled to create any kind of third party rights on the same.
(l) The Company has unilateral right to remove its
Deep Freezers from the place of Distributor and/or from the place of his
dealers and/or from any other place where the said Deep Freezers are kept for
reasons deemed fit by the Company including non payment of any dues by the
company and/or storage of the goods therein of other party and/or for breach of
any of the terms of this Agreement by the Distributor.
8. The
Distributor shall pay a Franchise Fee of Rs. ________/- per each parlour
and Rs. ______________/- per outlet to
the Company.
9. The
Company shall advertise its products through different medias as may be
thought fit by the Company in its sole discretion. The Distributor shall have
no right to make any complaint in that behalf.
10. The Company
shall Endeavour its utmost to deliver the said goods of best quality. However,
on and from the point of its actual physical delivery, it shall be the sole
obligation and responsibility of the Distributor to take all measures and
precautions to preserve the quality and condition of the said goods until its
consumption. The said goods being for human consumption, as mentioned in Clause
6 hereinabove, the Distributor shall be entitled to make any complaint in
respect thereof, only at the time of its delivery and thereafter it shall be
the sole responsibility of the Distributor. The Distributor agrees to keep indemnified
and hereby indemnifies the Company against all claims, actions and demands in
respect of the use of the said goods caused by the negligence of the
Distributor in not properly preserving the said goods or for its timely
consumption.
11. The Distributor shall:—
(a) purchase the said goods directly from the
Company only and shall not purchase any goods of the same or similar type or
Goods competing with the Company’s goods from any other source.
(b) sell the goods in the same condition and
packing as they are received by him and not deface or alter the goods or their
packaging or remove or modify any labels, instructions, trade marks or
indentifying signs applied to or furnished in connection with the said goods or
affix to the said goods or its packaging any labels or signs not previously
approved in writing by the Company.
(c) shall fulfill the standards from time to time
indicated by the Company for presentation of goods, setting up of
infrastructure and/or for any other purposes.
(d)
use his best endeavors to promote and
extend the sale of the said Goods throughout the said territory and in
particular to achieve the sales target of the Company.
(e) in all matters act loyally and faithfully to
the Company and obey its orders and instructions and in any matter where it is
not possible to obtain such orders or instructions in relation to any
particular matter, act in prudent manner as he reasonably considers to be most
beneficial to the Company’s interest.
(f) not engage or be interested either directly or
indirectly as principal, agent, partner, director or employee in the
production, sale or advertisement of goods of any description or kind similar
to or competitive with the said goods without obtaining the previous consent in
writing of the Company.
(g) disclose to the Company immediately particulars
of all selling agencies in which the Distributor is engaged or interested
either directly or indirectly as principal, agent, partner, director or
employee and from time to time disclose promptly to the Company particulars of
all further similar agreements in which the Distributor so becomes engaged or
interested.
(h) act only within the territory assigned and
shall not take orders for the sale to any person of the said goods which he
knows or has reason to believe are intended for resale outside the said
territory.
(i) not advertise the goods except by means of
materials supplied or approved by the Company.
(j) not offer the said goods for sale at price
except at the price time to time fixed by the Company.
(k) not, in selling the Goods, make any
representations or give any warranties except those contained in the Company’s
conditions of sale.
(l) keep full and proper books of account and
records showing clearly all visits, inquiries, transactions and proceedings
relating to the distribution and to keep those books and records separate from
those relating to matters not relating to the distributorship and allow the
authorized officers of the Company at all reasonable times to have access to
and to inspect his books and records relating to the Distribution and on demand
to supply copies thereof to the Company.
(m) supply such reports, returns and other
information as the Company from time to time requests including sales,
forecasts and information with regard to products competing with or likely to
compete with the said goods in the said Territory.
(n) take part in meetings with representatives of
the Company for better marketing propaganda of the
said goods at such times and places as may be required by the Company.
(o) bring promptly to the notice of the Company any
information received by him which is likely to be of use or benefit to the
Company in relation to the marketing of the said goods.
(p) not incur any liability on behalf of the
Company or in any way pledge or purport to pledge the Company’s credit or
accept any orders or make any contract binding on the Company without the
Company first approving its terms in writing.
(q) defray all expenses of and incidental to the
distributorship.
(r) not at any time, whether during or after the
term of this agreement, divulge or use any unpublished technical information
derived from the company or any other information in relation to the Company’s
affairs or business or method of carrying on business.
(s) not to sell the said goods under any trade
mark or name other than as specified by the Company.
(t) not to directly or indirectly either as
principal, agent, partner, director or employee, during the period of one year
after the determination of this agreement for any reason whatsoever, solicit
business, for goods which are or are likely to be competitive with the said
goods, from Customers of the Company with whom Distributor has dealt as
Distributor for the Company during the period of this Agreement.
(u) not in any way at all during or after the
termination of the Agreement make any use of or claim any right in any name,
logo, trade mark, pattern or design owned by the Company or any name logo,
trade mark, pattern, or design resembling to the same.
(v) immediately bring any improper or wrongful user
of the Company’s patents, trade marks, emblems, designs, models or other
similar industrial or commercial monopoly rights which come to his notice, to
the attention of the Company and in and about the execution of his/their/its
duties use every effort to safeguard such rights and interest of the Company
and assist the Company, at the request and cost of the Company, in taking all
steps to defend the rights of the Company.
(w) not make directly or indirectly any profit or
benefit from the sale of the said goods other than the requisite
commission/discount.
(x) not transfer his rights and benefits under this
agreement to any other party without the specific written consent of the
Company.
12. Notwithstanding
anything to the contrary contained in this Agreement the Company reserves to
itself the following rights:—
(a) to continue to quote for or supply of the said
goods to any buyer in the said Territory who directly approaches the Company or
to any buyer outside the said Territory for delivery of the said goods within
the said territory.
(b) to decline at its absolute discretion without
giving any reason therefor, to execute any order or to submit any quotation or
tender on any enquiry transmitted to it by the Distributor.
(c) to vary the price of the said goods and to vary
its conditions of sale in each case without any prior notice.
(d) to make changes in the design, production or
finish of the said goods and its packing.
(e) to specify from time to time sales target by
the Distributor for the said goods or for particular type of goods within the
said territory.
(f) if in the reasonable opinion of the Company
the Distributor is not at any time producing adequate sales coverage throughout
the said territory and without prejudice to any other of its rights under this
Agreement, either to vary the extent of the said territory so as to exclude
from this Agreement such part or parts of the said territory as it reasonably
thinks fit.
(g) in the event of its business or any part of it
being transferred to any other Company, to assign its right and obligations
under this Agreement to that other Company.
13. The relation between the Company and the
Distributor will be that of principal to principal and not as principal and agent and the company
will not, therefore, be responsible or liable for the acts of the Distributor
or for any amount due and payable by the Distributor to any other party.
14. Either
party shall have right to terminate this agreement by giving a written
notice of ninety days.
15. Without
prejudice to any other remedies the Company may have against the Distributor, the
Company shall have the right, at any time by giving notice in writing to the
Distributor to suspend the performance of or terminate all or any of its
obligations and the Distributor’s rights under this Agreement with the
immediate effect, in any of the following events:—
(a) If the Distributor commits a breach of any of
the terms of this Agreement;
(b) If the Distributor dies, becomes bankrupt or insolvent,
compounds with his creditors or takes, suffers any similar action in
consequence of debt or goes into liquidation voluntary or compulsory;
(c) If from any cause the Distributor is prevented
from performing his duties under this Agreement for a continuous period of two
months or for a total of three months in any period of six calendar months;
(d) If the Distributor is guilty of any conduct
which in the reasonable opinion of the Company is prejudicial to the Company’s
interest;
(e) If the Distributor purports to assign the
burden or benefits or charge the benefits of this Agreement to any third party
without obtaining prior written consent of the Company;
(f) If there is any material change in the
identity of the management, executives, directors, shareholders or partners of
the Distributor;
(g) If there is any material change in the
constitution, capital or premises of the Distributor.
The Company’s decision of the aforesaid
termination shall be final and binding on the Distributor.
16. Upon the termination of this agreement in any of the aforesaid manner:—
(a) The Distributor, at his own cost and expense,
shall return, all the Deep Freezers together with all the other properties of
the Company which are in possession of the Distributor or in possession of any
dealers to the Company in good condition and without claiming any right, title,
interest, lien or claim of whatsoever nature, at the place intimated by the
Company.
(b) On return of the aforesaid items to the Company
by the Distributor, the company shall settle all its claim and accounts with
the Distributor and after settling such claims and accounts if any amount is
payable to the Distributor, the company shall pay the same. If it is found that
the amount is payable by the Distributor
to the Company, the Distributor shall pay the same to
the Company.
(c) The Distributor shall have no right to any
compensation for goodwill, customer expenses or any other payment of any nature
against the company save and except for what is provided herein.
17. The waiver by the Company of any breach of any terms of this Agreement by the
Distributor shall not preclude the company from enforcing any subsequent breach
of that term or of any other term and shall not be deemed as a waiver of any
similar subsequent breach also.
18. All
previous agreements and arrangements if any relating to the sale of the said
goods made between the Company and the Distributor are superceded by this
Agreement.
19. No variation or amendment of this Agreement or oral promise or commitment related to it
shall be valid until and unless committed to in writing by the Company.
20. For
any suit or legal proceedings arising out of this agreement the courts at
___________ alone will have jurisdiction to entertain and try the same.
IN WITNESS WHEREOF the parties have executed these
presents on the day and the year first hereinabove written.
THE COMMON SEAL OF the )
M/S. RISHIT FOODS AND )
ICE CREAMS PRIVATE
LIMITED, )
the COMPANY above named )
is hereunto affixed
pursuant to the )
Resolution of its Board
of Directors )
made in that behalf, on
the ______ )
day of ___________
200___ )
in the presence of (1)______________, )
Managing Director and )
(2) __________________,
Director )
and in the presence of:-
)
SIGNED AND DELIVERED )
By
______________________ the Distributor )
Above named in the
presence of …….. )
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