EXCLUSIVE DISTRIBUTION AGREEMENT
This exclusive distribution agreement (“Agreement”) dated __________ ___, _______, among The Good Kind, LLC (“Distributor”) and Latiali, S.A. (“Supplier”) collectively referred to as (“the Parties”).
WHEREAS, the Parties have expressed interest in entering into an exclusive distribution agreement in regard to the cacao products and chocolates (“the Product”).
WHEREAS, the Supplier produces and sells the Product in various locations, and the Distributor would be the exclusive distributor for the United States east coast from Florida to New York (“Territory”).
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.GENERAL APPOINTMENT
a)Appointment. Supplier hereby appoints Distributor as its exclusive, United States east coast from Florida to New York distributor for the sale and resale, of the Product into the cacao products and chocolates market (“Territory”) subject to the terms and conditions of this Agreement.
b)Relationship of the Parties. The relationship between Supplier and Distributor is that of independent contractors and not that of employer-employee or principal-agent.
2.GENERAL TERMS OF DISTRIBUTORSHIP
a)Best Efforts. Distributor agrees to use its best efforts to promote the sale of, and to solicit and secure orders for the Product in the Territory and, subject to the provisions below, to distribute the Products from Supplier. Supplier agrees to supply the Product to Distributor as Supplier’s exclusive distributor of Product in the Territory.
b)Promotion and Publicity. All promotions and advertising of the Products shall be formulated and implemented by Distributor at its own cost. All such promotional material shall be accurate and consistent with the material used by Supplier in its advertising and promotional campaigns. Distributor shall not materially alter the packaging of the Products without the prior consent of the Supplier, and each party shall cause the labeling of Products sold hereunder to comply with all applicable regulations governing such labeling from time to time; provided, however, Distributor may add any labeling that it determines is required under applicable law, or otherwise necessary to meet legal or customer requirements.
c)Compliance. Supplier shall, at its own expense, provide Distributor with all relevant technical information known to Supplier as a result of industry-standard due diligence and necessary to comply with all statutes, rules, and regulations relating to the sale of the Products in the Territory. Supplier also agrees, at its own expense, that it shall promptly conduct all required testing of the Products and obtain all required registrations of the Products in all pertinent marketplaces for the Products, including, but not limited to, the United States. Supplier shall, at its own expense, maintain the proper documentation and certifications, including, but not limited to, Phytosanitary Certificate, Contracting Officers Authorization (COA), and all other Product certifications that are deemed necessary by the Parties.
d)Non-Infringement. Distributor shall not advertise, promote, or sell any Product which infringes any Patent, Trademark, or copyright, or which violates any trade secret of Supplier.
e)Territory Expansion. The Territory can be expanded if the Distributor is the first to sell the Product in an area outside the current Territory, nationally and internationally. Distributor and Supplier shall agree to expand the Territory in writing and signed by both Parties within one month of Territory expansion. The Territory can be expanded to include additional areas both nationally and internationally.
f)Negotiation of Market Expansion. Distributor shall be in charge of leading negotiations for other vendors in the United States, who are interested in being distributors in the Territory. If the Distributor assists the Supplier in gaining more vendors in the expanded Territory, then the Distributor is entitled to receive a commission from the new vendor at a rate to be determined at the time of contracting with the new vendor. Distributor shall assist the Supplier in sending the Products to the new vendors in the expanded Territory.
3.PRICE, PAYMENT, AND DELIVERY TERMS
a)General Terms. Supplier agrees to supply the Products to Distributor, and Distributor agrees to distribute the Products for the Supplier on the terms and conditions set forth in this Agreement.
b)Placement of Orders and Shipping. Supplier shall ship supplies of the Product within thirty (30) days of receipt of written orders therefore from Distributor. Supplier shall pay for the shipping fees. If the Supplier is unable to ship within such period, it shall promptly notify the Distributor informing Distributor of Supplier’s anticipated shipping date. A late fee of $500 shall be implemented if the Supplier does not ship the Products by the determined shipping date.
c)Payment. In consideration of the consignment of consigned Product pursuant to this Agreement, Distributor shall pay the Supplier payments as follows:
i.Distributor has one year to sell the Products within receipt of the Products. The Distributor shall pay the Supplier for the Products that the Distributor sells within one month of the Products being sold by the Distributor; and
ii.From time to time, the Supplier shall provide the Distributor with a complete list of the Products (“Price List”) that the Distributor is authorized to sell. Each updated Price List shall indicate the price that each Product on the list can be sold. The Distributor shall solicit orders only for the Products listed and for the prices indicated (unless otherwise authorized by the Supplier in writing). Supplier shall promptly provide the Distributor with an updated Price List any time there has been a change in the Products or prices. The Distributor may rely on these listings in making sales.
d)Delivery. Delivery of the Products to the Distributor shall be sent to the Distributor’s warehouse, transported, and paid for by Supplier. Title to and risk of loss of Products shall remain with the Supplier until the Product is sold. Products shall be delivered with an expiration date longer than one year from the delivery date.
e)Product Modification. Any modification in chemical components, raw materials, manufacturing sources, manufacturing locations, manufacturing facilities, and/or processes must be reported to and reasonably agreed to by Distributor prior to implementation. Any changes to the limits given in the specification of any Product must be notified to Distributor and reasonably agreed to by Distributor before any dispatch of any modified Product and a new specification and safety data sheet, must be drafted for any such modified Product. All raw materials and/or supplies shall in all material respects be chemically consistent, both in nature and concentration, with the original raw materials and/or supplies used in the Products. All raw materials and/or supplies shall in all material respects meet the original specifications herein.
4.TERMINATION
a)Termination by Either Party. This Agreement shall commence on the date hereof and terminate two (2) months after either party gives written notice of termination to the other at any time, with or without cause. This Agreement may also be terminated by an aggrieved party immediately upon written notice to the other (“Defaulting Party”) in the event that the Defaulting Party:
i.commits a breach or default under this Agreement, which breach, or default is not remedied within thirty (30) days after written notice of the facts surrounding such breach is delivered to the Defaulting Party; or
ii.is unable to meet its debts as they fall due or enters into liquidation or dissolution or becomes bankrupt or insolvent, or if a trustee or receiver is appointed for such party, whether by voluntary act or otherwise, or if any proceeding is instituted by or against such a party under the provisions of any bankruptcy act or amendment thereto which results in the entry of any order for relief against it which is not stayed or remains active for a period of sixty (60) days, or if it enters into a voluntary arrangement with its creditors.
b)Distributor’s failure to sell a certain item included in the Product within a year is not a valid cause for termination and does not subject the Distributor to any penalty.
c)Cessation of Deliveries. Upon termination of this Agreement, Supplier may restrict or stop deliveries of the Products to Distributor, other than deliveries on orders already received at the time of the notice of termination. Any leftover Products shall be sent back to the Supplier in the event of termination. The Supplier shall pay for the fees related to shipping back the Product to the Supplier.
5.WARRANTY
Supplier warrants to Distributor that the Products sold to the Distributor by the Supplier under this Agreement shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defect, and in accordance with Supplier’s specifications. Distributor shall notify the Supplier in writing for any claims of defect or non-conformity noticeable upon ordinary inspection within the statute of limitations.
6.WAIVER
No failure of the Distributor to exercise any power reserved under this Agreement, or to insist upon strict compliance by the Supplier with any obligation or condition under this Agreement, and no custom or practice of the parties in variance with the terms of this Agreement, shall constitute a waiver of Distributor's right to demand strict compliance with the terms of this Agreement. A waiver by the Distributor of any particular default by the Supplier shall not affect or impair the Distributor’s right with respect to any subsequent default of the same or of a different nature. No delay, waiver, forbearance, or omission of the Distributor to exercise any power or rights arising out of any breach or default by the Supplier of any of the terms, provisions, or covenants of this Agreement shall affect or impair Distributor's rights; nor shall such failure constitute a waiver by Distributor of any rights under this Agreement or of the right to declare any subsequent breach or default. Subsequent acceptance by the Distributor of the payments due it hereunder shall not be deemed to be a waiver by the Distributor of any preceding breach by the Supplier of any terms, covenants, or conditions of this Agreement.
7.ENTIRE AGREEMENT
This Agreement shall constitute the entire Agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.
8.MODIFICATION
Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing, attached to this Agreement, and signed by each party or an authorized representative of each party.
9.SEVERABILITY
Each section, part, term, and provision of this Agreement shall be considered severable. If, for any reason, any section, part, term, or provision of this Agreement is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation of a court or agency having valid jurisdiction, such determination shall not impair the operation or affect the remaining portions, sections, parts, terms, or provisions of this Agreement, and the latter shall continue to be given full force and effect and bind the parties to this Agreement. The invalid section, part, term, or provision shall be deemed not to be a part of this Agreement.
10.FORCE MAJEURE
Neither of the parties hereto shall be responsible for or liable to the other party for any damage or loss of any kind, directly or indirectly, resulting from fire, flood, explosion, riot, rebellion, revolution, war, labor trouble (whether or not the fault of either party hereto), requirements or acts of any government or subdivision thereof, or any other similar cause beyond the reasonable control of the party. The occurrence and the termination of any such event shall be promptly communicated to the other party. If after sixty (60) days, Force Majeure events cause default of obligations hereunder by a party, the non-defaulting party may immediately terminate after providing the defaulting party with notice.
11.NOTICE
All notices, requests, demands, and other communications made hereunder shall be in writing and shall be deemed duly given on the date of receipt if personally delivered or five days after mailing if sent by mail, postage prepaid, to the addresses set forth below or to such other address or person as either party may designate by notice to the other party hereunder:
12.GOVERNING LAW
It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Florida.
13.MEDIATION OF DISPUTES
In the event a dispute shall arise between the parties to this Agreement, the parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration & Mediation. The parties agree to share equally in the costs of the mediation.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
SIGNATURE BLOCK ON THE NEXT PAGE
SIGNATURE BLOCK:
The Good Kind, LLC.
By: ______________________________ Date: _________
Signature
______________________________
Print Name and Title
Latiali, S.A.
by _______________________________ Date: ___________
Signature
_______________________________
Print name and Title