Cohen International Roger S. Cohen, President roger @ rogercohen dot com http://www.rogercohen.com (845) 358-8936
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Form International Distributor Agreement ©
This Agreement, is made and
entered into this _____ day of ____________,
_______ by and between
____________________________, a ___________________
[corporation] with
offices at _________________________________________, the
United States
of America, (hereinafter called "Manufacturer") and
________________________ ("Distributor"), with offices at
_____________________________________.
The parties hereto agree as
follows: I. ASSOCIATION Distributor shall act as an
exclusive distributor of Manufacturer's _____________________ as
described in attached Exhibit
A ("Products") throughout the countries of
________________________________________________ (the
"Territory"). II. DUTIES 1. Distributor agrees to actively
and diligently promote the sale of the Products in the Territory during
the Term hereof. Manufacturer shall refer to Distributor inquiries for
Products in the Territory. 2. Distributor agrees to promote
in the Territory the Manufacturer's names and the Products during the
Term hereof. Distributor agrees to notify Manufacturer of any leads of
interest granted for any products. III. ASSISTANCE BY
MANUFACTURER Manufacturer agrees to furnish
Distributor with reasonable quantities of Manufacturer's catalogs,
manuals, advertising literature and other sales aids that may be
available by Manufacturer. Any such sales aids provided shall be in
English. Manufacturer further agrees to provide Distributor with
reasonable home office support and technical assistance upon terms and
conditions to be agreed upon from time to time. IV. INTELLECTUAL PROPERTY
RIGHTS Distributor shall not use
Manufacturer's trade names and/or trademarks without the prior, express
written consent of Manufacturer. Under no circumstances shall
Distributor, at any time, use Manufacturer's trade names, trademarks or
other proprietary information as part of Distributor's corporate or
trade name. Upon termination of this Agreement, Distributor shall
remove all references to Manufacturer from its letterheads, advertising
literature and places of business, and shall not thereafter use any
similar or deceptive name or trademark intending to give the impression
that there is any relationship between the parties. V. SALES FORCE Distributor shall maintain a
competent and experienced sales force sufficient to adequately serve
the Territory. VI. CUSTOMER SERVICING Distributor shall maintain in the
Territory sufficient inventory of the Products so as to permit filling
and shipping against current customer orders normally shipped from
Distributor's warehouse stock. Distributor agrees to notify
Manufacturer if it opens any new offices or branches or closes or
ceases to operate through one of its offices or branches. VII. ORDERS/ACCEPTANCE/PRICE
AND TERMS 1. All orders from Distributor
are subject to approval and final acceptance by Manufacturer. Price
lists to Distributor shall be as set forth in Exhibit B (as revised
from time to time by Manufacturer in its sole discretion) in effect on
date of shipment. For nonstandard Products which are sold to
Distributor for resale, the price shall be as quoted to Distributor at
time of inquiry, provided that the inquiry is within thirty (30)
calendar days of order entry. 2. Payment to Manufacturer by
Distributor shall be in United States currency. Upon the placing of
order(s), Distributor shall cause an irrevocable confirmed letter of
credit to be issued by a United States financial institution
satisfactory to Manufacturer, in favor of said Manufacturer, unless
another arrangement is previously approved in writing by Manufacturer. VIII. WARRANTY AND FORCE
MAJEURE 1. Manufacturer warrants that all
Products delivered hereunder shall be of Manufacturer's standard
quality. MANUFACTURER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED:
THERE ARE NO IMPLIED WARRANTIES INCLUDING WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. 2. Manufacturer shall not be
liable for damages resulting from delays in shipment or inability to
ship due to normal production and shipment delays or those resulting
from acts of God, fires, floods, wars, sabotage, accidents, labor
disputes or shortages, plant shutdown or equipment failure, voluntary
or involuntary compliances with any law, order, rule or regulation of
governmental agency or authority; or inability to obtain material
(including power and fuel), equipment or transportation, or arising
from any other contingency, circumstances or event beyond the control
of the Manufacturer. IX. LIMITATION OF LIABILITY No claims of any kind, whether as
to materials delivered or for nondelivery of materials from
Manufacturer, and whether arising in tort or contract, shall be greater
in amount than the purchase price of the products in respect of which
such damages are claimed; and the failure to give notice of the claim
to Manufacturer where the order was placed within sixty (60) calendar
days from the date fixed for delivery shall constitute a waiver by
Distributor of all claims in respect of such Products. In no event
shall Manufacturer be liable for special, indirect or consequential
damages. Any claim with respect to defective Products or breach of
warranty must be promptly made and shall apply to Products properly
used, stored, applied and maintained. X. RELATIONSHIP BETWEEN
MANUFACTURER AND DISTRIBUTOR Distributor is not an agent,
employee or legal representative of Manufacturer, but an independent
contractor. Distributor does not have any authority to assume or create
any obligation or responsibility on behalf of Manufacturer or bind
Manufacturer in any manner whatsoever. The relationship between
manufacturer and Distributor is that of vendor and vendee. Distributor
further agrees to defend, indemnify and hold Manufacturer harmless from
and against any and all claims of third parties that would not have
arisen but for an act or omission by Distribution that is contrary to
the above-acknowledged relationship or any other term hereof. Distributor, whether functioning
as a distributor, agent, representative, or any in any other capacity,
shall not and does not have the right to bind Manufacturer or Principal
to any agreement with any third party. XI. TERM/CANCELLATION 1. This Agreement shall become
effective as of the date hereof upon execution by an officer or other
authorized representative of the Manufacturer in the United States and
by an authorized representative of Distributor and shall remain in
effect for _________ years thereafter unless previously terminated by
either party for any other reason upon not less than thirty (30)
calendar days prior written notice to the other party. 2. Without limitation, the
following events shall constitute grounds for termination by
Manufacturer: (b) if Distributor fails to
provide and maintain a proper and sufficient sales force; (c) if Distributor degrades and
places in bad repute the name and reputation of Manufacturer expressly
or by virtue of its methods of handling and/or promoting the Products; (d) if Distributor fails to
meet any other of its obligations hereunder; or (e) if Distributor fails to
meet minimum purchase goals, as defined in Exhibit C. 3. Except as may be otherwise
determined pursuant to the laws of the jurisdiction where Distributor
has its principle office, Manufacturer shall have no liability to
Distributor by any reason of any termination or cancellation of this
Agreement by Manufacturer, including without limitation, liability for
direct or indirect damages on account of loss of income arising from
anticipated sales, compensation, or for expenditures, investments,
leases or other commitments or for loss of goodwill or business
opportunity or otherwise. 4. Upon termination by either
Manufacturer of Distributor, Manufacturer shall have the option of
buying back from Distributor any new unsold Products purchased from
Manufacturer, at the prices charged to Distributor, less Manufacturer's
then applicable restocking charge, if any, and less any additional
expenses incurred by Manufacturer arising out of termination by
Distributor XII. NONDISCLOSURE All information transferred or
otherwise revealed to Distributor by Manufacturer under this Agreement,
including but not limited to, engineering information, manufacturing
information, technology, know-how and price books or lists, will at all
times remain Manufacturer's property. Distributor shall at all times
hold such information confidential and shall not disclose any such
information if not otherwise within the public domain. Upon any
termination of this Agreement, or as Manufacturer directs from time to
time, Distributor shall promptly return all such information to
Manufacturer, together with any copies or reproductions thereof.
Distributor's obligations under this section shall survive any
termination of the Agreement. XIII. CERTAIN PRACTICES Distributor acknowledges that
certain laws of the United States applicable to the Manufacturer, but
which may not be applicable to Distributor, impose fines or penalties
on Manufacturer in the event Manufacturer makes payments to foreign
government officials for the purpose of influencing those officials in
making a business decision favorable to Manufacturer. In addition,
Manufacturer and Distributor may be subject to similar laws or
requirements of the country of destination of the Products. Distributor agrees upon
reasonable request by Manufacturer to give Manufacturer reasonable
written assurance that the Distributor has done nothing to cause
liability to Manufacturer under the above-mentioned laws. XIV. NOTICES All notices and other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been served or delivered 1. when personally served or
delivered to one party by the serving or delivering party; or 2. when deposited in the mail,
postage prepaid by the serving or delivering party addressed to the
other party as follows: If to Manufacturer: ___________________________ ___________________________ ___________________________ ___________________________ If to Distributor: ___________________________ ___________________________ ___________________________ ___________________________ XV. VARIOUS This Agreement constitutes the
entire and only agreement between the Manufacturer and Distributor with
respect to its subject matter and there are no understandings or
representations of any kind, express, implied, oral, written statutory
or otherwise, not expressly set forth herein. No alteration or
modification of this Agreement shall be binding unless in writing and
signed by the party to be bound thereby. 1. This Agreement is not
assignable in whole or in part by either party without express written
consent of the other. 2. If Distributor consists of
either two or more individuals or partners, each shall execute this
Agreement on behalf of Distributor and each individual signing shall be
jointly and severally liable to Manufacturer with respect to the
obligations of Distributor under this Agreement. 3. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of
_______________, United
States of America, and the official language of this Agreement for all
purposes shall be English. 4. This Agreement may be executed
in any number of counterparts, each of which when executed and
delivered shall be an original, but all such counterparts shall
constitute one and the same instrument. DISTRIBUTOR: ___________________________ By: Title: Date: MANUFACTURER ________________________ By: Title: Date:
Product Line: Territory:
Distributor Price List
Exclusions
BUSINESS PRACTICES A. In the performance of their
obligations under this Agreement, Agent shall comply strictly with all
laws, regulations, orders and policies having the force of law, of
_____________________________, and where applicable, all laws,
regulations, orders and policies having the force of law of any other
jurisdiction, including without limitation, the United States of
America. B. In furtherance of the Agent's
obligations hereunder, the Agent represents, warrants and agrees that,
in connection with the performance of its duties hereunder, it shall
not make any payments, in money or any other item of value or make any
offers or promises to pay any money or any other item of value to (a)
any government official, (b) any foreign political party, (c) any
candidate for foreign political officer or (d) any other person or
entity, with the knowledge that such payment, offer or promise to pay
will be made to any government official for the purpose of influencing
such government official to make one or more business decisions
favorable to Principal, Agent, or both. C. Agent further represents that
no government official is a principal, owner, officer, employee or
agent of any entity in which Agent has an interest, and no government
official has any material financial interest in the business of the
Agent. D. In the event of any breach by
Agent of any of its representations, warranties or covenants contained
in this Article, Principal may, in its sole discretion in addition to
any other remedy provided herein or otherwise provided by law,
immediately terminate this Agreement without notice or indemnity and in
such event, Agent shall forever forfeit all rights to all fees and
commissions which shall accrue and/or have been earned but which have
not been paid as of the date of such termination. INDEMNIFICATION Notwithstanding the provisions
set forth above in Article ____, [Distributor, Agent] shall indemnify
and hold
harmless Principal against and from any claim, loss, damage or expense
(including attorneys' fees and disbursements) (a) arising from any
breach by [Distributor, Agent] of any representation, warranty,
covenant or other
obligation of Agent under Article ____ of this Agreement, (b) resulting
from any unlawful act committed by Agent or any agent of Agent thereof,
or (c) which Principal may sustain by reason of any act, omission or
misrepresentation of Agent or Supervisor or any agent thereof.
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