PRODUCT DISTRIBUTION AGREEMENT
This Product Distribution
Agreement (the “Agreement”) is entered into as of
______________, 20 _____
(the “Effective Date”) by and between
______________, a
____________ [corporation] [limited liability company]
[etc.],
with its principal offices at _______________ [enter address] (the “Supplier”)
and _____________, a ____________ [corporation] [limited liability company]
[etc.], with its principal offices at _______________ [enter address]
(the “Buyer”). The Supplier
and the Buyer may be referred to individually as a “Party” or collectively as
the “Parties.”
RECITALS
WHEREAS, the Supplier is engaged
in the
business of
________________________________________________________________
________________________________________________________________
__________; and
WHEREAS, the Supplier
manufactures and wishes to Distribution to the Buyer those certain products
more particularly set forth in Exhibit A attached hereto and made a part hereof
(the “Products”) on the terms and conditions set forth below; and
WHEREAS,
the Buyer wishes to purchase the Products supplied in accordance with the terms
of this Agreement; and
WHEREAS, from time to time,
the Parties may enter into various agreements pursuant to which the Buyer shall
purchase and Supplier shall furnish additional Products; and
WHEREAS, the Parties want to
establish purchasing procedures and the terms and conditions governing the
above-referenced transactions;
WHEREAS, each Party is duly
authorized and capable of entering into this Agreement.
NOW, THEREFORE, in
consideration of the above recitals, and the mutual promises and benefits
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the Parties hereby agree as follows:
1.
TERM.
This Agreement shall be
effective as of the Effective Date and continue for a period of ___________
years (the “Term”). (Optional) [Unless otherwise terminated pursuant to Section
16 hereof, this Agreement shall renew automatically at the end of the Term for
additional ________ year periods, unless either Party gives written notice of
termination at least _____ days before the end of the Term or any renewal
term.]
2.
AGREEMENT OF PURCHASE AND
SALE.
Pursuant
to the terms and conditions of this Agreement, the Supplier agrees to sell to
the Buyer, and the Buyer agrees to buy from the Supplier, the Products listed
in Exhibit A hereto, in such amounts and at such prices as agreed by the
Parties.
3.
MINIMUM QUANTITIES.
During each [month][year] of
the Term, the Buyer hereby agrees to buy a minimum of _____ [units][amounts] of the Product listed in
Exhibit A from the Supplier (the “Minimum Quantities”).
4.
FAILURE TO PURCHASE MINIMUM
QUANTITIES.
If, without excuse either by
law or expressly hereunder, the Buyer fails to purchase the Minimum Quantities
from the Supplier and the Supplier is ready, willing, and able to tender the
Product in such amounts, the Buyer shall pay the Supplier a sum of Rs.___________
as liquidated damages, within ____________ days of the end of the period
described in Section 3 hereof, in such form and manner as may be agreed by the
Parties.
5.
FAILURE TO DISTRIBUTION
MINIMUM QUANTITIES.
If, without excuse either by
law or expressly hereunder, the Supplier fails to Distribution the Buyer with
the Minimum Quantities, and the Buyer is ready, willing, and able to buy the
Product in such amounts, the Supplier shall pay the Buyer a sum of
Rs.___________ as liquidated damages, within _______days of the end of the
period described in Section 3 hereof, in such form and manner as may be agreed
by the Parties.
6.
(Optional) EXCEPTIONS TO
PURCHASE REQUIREMENTS.
Notwithstanding anything to
the contrary contained in this Agreement, the Buyer shall not be required to
purchase Products from the Supplier if any of the following circumstances
arise:
a.
the Buyer must acquire
Products on a temporary or emergency basis;
b.
a customer of the Buyer
expresses a preference for products supplied by a supplier other than the
Supplier; or
c.
the Supplier is unable or
unwilling to Distribution the Buyer with Products in required quantities, or
that meet the quality, delivery, or other requirements of this Agreement or of
the Buyer’s customers (as determined by the Buyer in good faith).
If any of the preceding
circumstances occur, the Buyer shall be entitled to manufacture or buy Products
from affiliates or other suppliers. Products purchased by the Buyer from any
such alternate suppliers shall count towards the Minimum Quantities required
under this Agreement.
7.
INSPECTION AND ACCEPTANCE.
The Buyer will inspect any
delivery of Products received from the Supplier, and will notify the Supplier
of any defects within ____________ days after the delivery date. If the Buyer
fails to notify the Supplier of any such defects within such period, the shipment
of Products shall be deemed accepted. The Buyer will allow the Supplier to
inspect any Products alleged defective at the Buyer’s business site. At the
request of the Supplier, the Buyer will ship any Products to the Supplier that
the Buyer believes are defective; provided, however, that the Supplier shall
pay for any freight charges related to such shipments. The Supplier agrees to
replace all defective Products rejected by the Buyer or, at the Supplier’s
option, to reimburse the Buyer for the full purchase price thereof, including
any related shipping costs and taxes.
8.
WARRANTY AND LIMITATION OF
REMEDIES; DISCLAIMER.
a.
The Supplier warrants that
the Products supplied shall be free from defects in material and manufacture,
conform to specifications set forth in Exhibit A, and conform to specifications
set forth in any Purchase Order at the time of shipment. If any Product fails
to conform to such specifications or any defect in material or manufacture
appears within ________months from the date of shipment, the
Supplier’s entire liability,
and the Buyer’s exclusive remedy, shall be, at the Buyer’s option, either to
repair or replace such defective Product within a reasonable time after written
notification thereof and return of the defective Product after such repair or
replacement to the Buyer.
b.
THIS WARRANTY IS MADE IN
LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY
IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM
OR USAGE OF TRADE, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
9.
(Optional) ISSUANCE OF
PURCHASE ORDER.
From time to time, the Buyer
shall provide written requests to the Supplier listing the goods it requires
(each a “Purchase Order”). The Supplier is not required to Distribution
Products until a specific Purchase Order is issued by the Buyer, and the Buyer
is not obliged to buy Products from the Supplier until it submits a specific
Purchase Order listing the Products it requires.
10.
(Optional) CANCELLATION AND
AMENDMENT OF PURCHASE ORDER.
The Buyer may, in whole or
in part, cancel or amend any Purchase Order submitted to the Supplier by
providing _______________ days’ notice to the Supplier of such cancellation or
amendment.
11.
DELIVERY OF PRODUCTS /
SHIPPING.
The Supplier shall deliver
the Products to a location designated by the Buyer (the
“Delivery Point”) within
__________ days of receipt of a Purchase Order. The
Supplier assumes
responsibility for the Products, and all risk of damage, loss, or delay of the
Products, until the Products are delivered at the Delivery Point. Once the
Products are at the Delivery Point, the Buyer assumes all responsibility for
and risk of damage to such Products.
12.
PRICING.
The Supplier shall
Distribution the Products to the Buyer at the prices specified in the price
list in Exhibit B, attached hereto and made a part hereof. The price of each
Product includes packaging costs, all applicable taxes, customs duties, export
duties, or similar tariffs or fees that the Supplier may be required to pay or
collect in connection with the performance of its obligations under, or in
furtherance of, this Agreement. The Buyer will not be charged for insurance or
storage of the Products.
13.
PAYMENT TERMS.
The Supplier shall send
invoices to the Buyer, and the Buyer shall remit payments to the Supplier, at
the addresses listed in Section 24 hereto. The Buyer shall remit such payments
within _________ days of its receipt of the Supplier’s invoice. (Optional) [The
Supplier shall deliver the Products within ___days of its receipt of a Purchase
Order.] Title in and to the Products shall pass from the Supplier to the Buyer
on the Buyer’s payment to the Supplier of all fees relating to such Products.
14.
(Optional) INTELLECTUAL
PROPERTY.
The
Buyer will use the Supplier’s trademarks or trade names both on the Products
and in the advertising for the Products. The Supplier will cooperate with the
Buyer’s marketing,
advertising, and packaging personnel to coordinate use of the
Supplier’s trademarks or
trade names, and any other text that mentions the Supplier. The Buyer is not
entitled, either by implication or otherwise, to any title or interest in any
trademark, trade name, logo, design, or copyright developed by the Supplier in
connection with the Products.
15.
(Optional) CONFIDENTIALITY.
Except as may be required in
the marketing of the Products or with the Supplier’s prior written consent, the
Buyer shall not, either directly or indirectly, in whole or in part, use or
disclose to any person, firm, corporation, or other entity, any of the
Supplier’s confidential information, which may include (but not be limited to)
records, customer lists, data, formula, documents, drawings, inventions,
methods, or processes. Information about the Products that is revealed during
the Term is confidential and shall be protected from disclosure.
16.
TERMINATION.
This
Agreement may be terminated:
a.
By either Party, at any
time, on provision of _____________ (____) days’ written notice to the other
Party.
b.
By either Party, at any
time, for a material breach of any provision of this
Agreement by the other
Party, if the other Party’s material breach is not cured within ______________
(____) days of its receipt of written notice thereof.
c.
By either Party at any time,
without prior notice, if the other Party has instituted a proceeding seeking
relief under the Bankruptcy Code or similar law, makes an assignment for the
benefit of creditors, or admits in writing its inability to pay its debts as
they become due.
17.
DEFAULT AND REMEDIES.
If either Party terminates
this Agreement because of the other Party’s default, the non-breaching Party,
in addition to all rights it has under this Agreement, shall have the right to
exercise any and all remedies available at law or in equity. All rights and
remedies are cumulative, and the election of one remedy shall not preclude
another. Any termination shall be without prejudice to accrued rights.
Specifically, a termination due to default of delivery or payment for the
Products required hereunder shall not in any manner affect or terminate the
rights and obligations of the Parties that have accrued hereunder prior or
subsequent to such default in delivery or payment. Notwithstanding the
expiration or termination of this Agreement, the obligations intended to
survive termination or expiration of this Agreement shall continue in full
force and effect.
18.
FORCE MAJEURE.
The Supplier and the Buyer
shall not be considered in default
hereunder or be liable for any failure to perform or delay in performing any
provisions of this Agreement in the customary manner to the extent that such
failure or delay is caused by any reason beyond its control, including any act
of God, fire, explosions, hostilities, or war (declared or undeclared), strike
or work stoppage involving either Party’s employees, or governmental
restrictions; provided, however, that the Party declaring force majeure shall
give prompt written notice to the other Party of the commencement, nature, and
termination of the force majeure condition. The Party whose performance has
been interrupted by such circumstances shall use every reasonable means to
resume full performance of this Agreement as promptly as possible.
18. INDEMNIFICATION.
The Supplier shall at all
times indemnify, defend, and hold harmless the Buyer against all claims,
actions, damages, losses, liabilities, and expenses, including reasonable
outside attorneys’ fees, arising out of or caused by any breach of any of the
representations, undertakings, or agreements made by the Supplier in connection
with:
a.
any claim of breach of any
express or implied warranty or negligence or strict liability, product
liability, or similar theory in connection with the production, design, sale,
or use of any of the Products purchased by the Buyer;
b.
(Optional) any claims of
patent or trademark infringement, or other violation of intellectual property
rights, of third persons in connection with the production, design, sale, or
use of any of the Products purchased by Buyer hereunder or the use of the
trademarks, trade names, logos, or other intellectual property pertaining
thereto; and
c.
any and all other claims and
liabilities of every kind or character whatsoever arising out of, or related
to, the production, design, sale, or use of the Products purchased by the Buyer
hereunder, unless the same result solely from the Buyer’s gross negligence or knowing violation
of law.
The Buyer shall at all times
indemnify, defend, and hold harmless the Supplier against all claims, actions,
damages, losses, liabilities, and expenses, including reasonable outside
attorneys’ fees, arising out of or caused by any breach of any of the
representations, undertakings, or agreements made by the Buyer under or
pursuant to this Agreement.
19.
(Optional) ARBITRATION.
Any controversy or claim
arising out of or relating to this Agreement, or the breach, termination or
invalidity of this Agreement shall be settled by arbitration in accordance with
the rules of __________________ . The arbitrator(s) shall be bound by the Agreement
and shall interpret the Agreement in accordance with the applicable laws of the
United States and the internal laws of the state of ________. Any award, order, or judgment made pursuant
to such arbitration shall be deemed final and shall be entered and enforced in
any court of competent jurisdiction.
20.
SUCCESSORS AND ASSIGNS.
All references in this
Agreement to the Parties shall be deemed to include, as applicable, a reference
to their respective successors and assigns. The provisions of this Agreement
shall be binding on and shall inure to the benefit of the successors and
assigns of the Parties.
21.
ENTIRE AGREEMENT.
This Agreement constitutes
the final, complete, and exclusive statement of the Agreement of the Parties
with respect to the subject matter hereof, and supersedes any and all other
prior and contemporaneous agreements and understandings, both written and oral,
between the Parties.
22.
MODIFICATION.
This Agreement may be
supplemented, amended, or modified only by the mutual agreement of the Parties,
and such agreement must be in writing and signed by both Parties.
23.
NOTICE.
Any
notice or other communication provided for herein or given hereunder to a Party
hereto shall be in writing and shall be given in person, by overnight courier,
or by mail (registered or certified mail, postage prepaid, return-receipt
requested) to the respective Parties as follows:
If
to the Supplier:
__________________________________________
__________________________________________
__________________________________________
If
to the Buyer:
__________________________________________
__________________________________________
__________________________________________
24.
GOVERNING LAW.
This Agreement shall be
governed by the laws of the state of______________. If litigation results from or arises out of
this Agreement or the performance thereof, the Parties agree to reimburse the
prevailing Party’s reasonable attorneys’ fees, court costs, and all other
expenses, whether or not taxable by the court as costs, in addition to any
other relief to which the prevailing Party may be entitled.
25.
SEVERABILITY.
Whenever possible, each
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal, or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality, or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed, and enforced in such
jurisdiction as if such invalid, illegal, or unenforceable provisions had never
been contained herein.
.
26.
COUNTERPARTS/ELECTRONIC
SIGNATURES.
This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument. For purposes of
this Agreement, use of a facsimile, e-mail, or other electronic medium shall
have the same force and effect as an original signature.
27.
AFFIRMATION OF THE PARTIES.
The Parties affirm that they
have entered into this Agreement freely, voluntarily, and without reliance on
any promises, representations, or other statements not contained in this
Agreement and that they have read and understood this Agreement.
28.
HEADINGS.
Headings
used in this Agreement are provided for convenience only and shall not be used
to construe meaning or intent.
IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement as of the date first above written.
SUPPLIER
[SUPPLIER’S NAME]
By:
Name:
Title:
ACKNOWLEDGMENT
OF
NOTARY PUBLIC
State
of _________________ )
County
of _______________ )
On this _____ day of ____________, 20___,
before me, the undersigned Notary Public, personally appeared before me [NAME],
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual who signed the foregoing document as the [OFFICER TITLE] of
the [SUPPLIER] and acknowledged to me that [he] [she] executed the same in
[his] [her] authorized capacity, and that by such signature, the person
executed the instrument.
WITNESS my hand and official seal.
Signature
of Notary Public:
______________________________________
My
Commission Expires: ________________________________________
BUYER [BUYER’S NAME]
By:
Name:
Title:
ACKNOWLEDGMENT
OF
NOTARY PUBLIC
State
of _________________ )
County
of _______________ )
On this _____ day of ____________, 20___,
before me, the undersigned Notary Public, personally appeared before me [NAME],
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual who signed the foregoing document as the [OFFICER TITLE] of
the [BUYER] and acknowledged to me that [he] [she] executed the same in [his]
[her] authorized capacity, and that by such signature, the person executed the
instrument.
WITNESS my hand and official seal.
Signature
of Notary Public:
______________________________________
My
Commission Expires: ________________________________________ EXHIBIT A
PRODUCT
LIST
[Attach
copy of Product List]
EXHIBIT
B
PRICE
LIST
[Attach
copy of Price List]
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