Draft 26/03/a
Distribution Agreement
DISTRIBUTION
AGREEMENT
between
[ ]
and
INDUSTRIAS VALLS 1, S.A.U.
[ ] [ ], 2012
[Igualada]
-14-
Q:\EASTMAN STAPLES\Distribanglesbase revisat 2012 (2).doc
Draft 26/03/a
Distribution Agreement
AGREEMENT made and entered into as of [ ] [ ] 2012, in [Igualada], Spain, by and between
I. The company [ ], with the following identification data:
- nationality [ ]
- registered office [ ]
- entry in the Commercial Register of [ ]
- Tax Identification Number [ ]
Hereinafter, such party shall be referred to as the “Distributor”.
The aforementioned company is represented by Mr.[ ], of [ ] nationality, of legal age, [marital status], with domicile in [ ] and [Passport/National Identity Card] No. [ ], acting in the capacity of [ ] of such Company, post for which he was designated by the deed authorised by the Notary Public of [ ], Mr. [ ], on [day] [month], [year], and recorded as number [ ] in his protocol, which was recorded as entry [ ] in the Commercial Register of [ ], on the one hand, and
II. The company INDUSTRIAS VALLS 1, S.A.U., with the following identification data:
- Spanish nationality
- registered office in Avenida Balmes, 16, Igualada
- entry in the Commercial Register of Barcelona, volume 24,289; folio 84; page number B-70036, Entry 4.
- Tax Identification Number A-59060491
Hereinafter, such party shall be referred to as “INDUSTRIAS VALLS 1, S.A.”.
The aforementioned company is represented by Mr. [ ], of Spanish nationality, with business address in [ ] (Barcelona) Spain, and with National Identity Card No. [ ], acting in the capacity of [ ], post for which he was designated by the public deed executed by the Notary Public of [ ], Mr. [ ] on [day] [month], [year], recorded as number [ ] in his protocol, on the other hand.
WITNESSETH
I. WHEREAS, INDUSTRIAS VALLS 1, S.A. is a company that engages in the manufacture and commercialization of textile products.
II. WHEREAS, the Distributor is a company that specializes in sales, distribution and commercial promotion of textile products. It has its own business organisation and operates on an independent basis, with its own facilities and personnel, and has not made any investment nor is any investment whatsoever required by the Distributor in terms of resources, facilities or otherwise to enter into and/or fulfil this agreement.
III. WHEREAS, the Distributor is interested in working for INDUSTRIAS VALLS 1, S.A.. Moreover, INDUSTRIAS VALLS 1, S.A. would like the Distributor to perform the sales, distribution and promotion of the products offered by the former, in accordance with the terms and conditions stipulated herein.
NOW, THEREFORE, the parties hereto agree to enter into this Distribution Agreement (hereinafter referred to as the “Agreement”) and to abide by the following terms:
1. OBJECT
By virtue of this Agreement, INDUSTRIAS VALLS 1, S.A. appoints the Distributor as exclusive distributor for the distribution, sales and promotion of the products under the PUNTO BLANCO brand stipulated in Schedule 1 attached hereto (hereinafter referred to as the “Products”). The Distributor accepts such assignment.
2. EXCLUSIVITY
2.1 (i) Territorial Scope:
The Distributor shall conduct the activities under this Agreement in the territory stated in Schedule 2 attached hereto (hereinafter referred to as the “Territory”) on an exclusive basis.
In accordance with the previous paragraph, INDUSTRIAS VALLS 1, S.A. shall not be able to designate other Distributors for the distribution, sales and promotion of the Products in the Territory. Moreover, the Distributor shall not be able to conduct activity as Distributor of INDUSTRIAS VALLS 1, S.A. outside of the Territory. In other words, the Distributor shall not distribute, sell nor promote the Products outside of the Territory.
(ii) By Products:
The Distributor shall perform the activities under this Agreement for the Products specified in Schedule 1 attached hereto on an exclusive basis.
In accordance with the previous paragraph, INDUSTRIAS VALLS 1, S.A. shall not designate other Distributors for distribution, sales and promotion of the Products in the Territory. The Distributor shall only distribute, sell and promote those Products specified in the aforementioned Schedule 1 of this Agreement. He shall not conduct such activities for the other products offered by INDUSTRIAS VALLS 1, S.A.
INDUSTRIAS VALLS 1, S.A. reserves the right to introduce changes in the list of Products, the characteristics, composition, etc. This includes the right to introduce new versions of the Products, in accordance with the criteria of the commercial management of INDUSTRIAS VALLS 1, S.A., as well as the right to withdraw any Product or any portion of the Products listed in Schedule 1, since such products may undergo variations, limitations, changes, temporary or final discontinuation, depending on the market needs, situation, evolution, or fluctuations.
(iii) By customers:
INDUSTRIAS VALLS 1, S.A. reserves the right to directly promote sales to the customers in Schedule 3, as well as to change (increase or decrease) the Customers in the aforementioned Schedule 3 if, and to the extent that it is considered necessary, such modification improves the overall or general distribution of the Products. INDUSTRIAS VALLS 1, S.A. shall notify the Distributor in writing of the proposed modification.
Within fifteen (15) days following such notification, INDUSTRIAS VALLS 1, S.A. and the Distributor shall negotiate and arrive at an agreement on such modification and the consequences thereof. If no agreement is reached during the aforementioned period, either of the parties may discharge the Agreement by notifying the other party in writing with at least two (2) months’ advance notice. The discharging party shall not be entitled to any indemnification whatsoever for termination of the agreement prior to the stipulated period.
2.2 Sales made on-line or by Internet are expressly excluded from this Agreement. Such sales shall be the exclusive responsibility of INDUSTRIAS VALLS 1, S.A.
3. NON-COMPETITION
3.1 During the period of validity of this Agreement, the Distributor shall not perform distribution, sales, promotion or commercialisation of products which compete with the Products offered by INDUSTRIAS VALLS 1, S.A., neither directly nor indirectly, unless express consent is granted in written by INDUSTRIAS VALLS 1, S.A. Competitive products are considered to be those which are similar, are meant for the same segment or sector of consumers or population, and are used for the same purpose.
4. DURATION
4.1 This Agreement shall be valid for twelve (12) months, starting on [ ].
4.2 Following the initial period of duration, such Agreement may be extended for one (1) year periods as long as there is express agreement by both parties. Either of the parties may notify the other party in writing of their desire to terminate the Agreement. In such case, they shall do so with one (1) month’s prior notice for each year of validity of the agreement, or the extensions hereof, up to a maximum period of six (6) months.
5. ORDERS
5.1 The Distributor shall request supplies of the Products by submitting a written purchase order to INDUSTRIAS VALLS 1, S.A. which identifies the type and amount of Products to be supplied, the delivery date(s) and any other information required for the order to be accepted and filled by INDUSTRIAS VALLS 1, S.A..
5.4 For all purposes of such Agreement, it is considered that placing an order to INDUSTRIAS VALLS 1, S.A. entails that the Distributor accepts the price of the Products and the terms and conditions of delivery established herein.
6. DELIVERY
6.1 After the order has been accepted, the Products requested shall be delivered in the form, place and period agreed on by the parties. Other expenses incurred due to delivery shall be paid by the Distributor.
6.2 INDUSTRIAS VALLS 1, S.A. can make partial deliveries of the Products, as long as the Distributor is notified in writing and the latter does not indicate within [ ] days following such notification that he is opposed to partial delivery.
6.3 INDUSTRIAS VALLS 1, S.A. shall not be held responsible for delays in delivery of the Products to the Distributor, unless it can be demonstrated that such delays are due to a serious bad faith or negligence by the former.
6.4 Without prejudice to the provisions of Clause 6.5 hereinafter, delivery of the Products to the Distributor or to any of his representatives or agents entails that the risk of loss or damage to the Products is irrevocably conveyed to the Distributor. Nevertheless, the Distributor shall be obliged to maintain the Products duly insured as long as they have not been paid in full to INDUSTRIAS VALLS 1, S.A., and the latter shall be designated as beneficiary in the insurance policy.
6.5 Ownership of the Products delivered to the Distributor shall be conveyed to the Distributor as soon as the latter has provided full payment of the purchase price and other items due to INDUSTRIAS VALLS 1, S.A. for the appropriate order.
For the purposes of identification of the products under the reservation of ownership, in the event of non-payment, the Distributor accepts that the number of products returned to INDUSTRIAS VALLS 1, S.A. shall be equal or equivalent to those indicated in the outstanding order, whenever such products can not be reasonably identified.
7. PRODUCT QUALITY
7.1 The Products delivered to the Distributor shall meet the generally accepted standards for such products.
7.2 At the time of delivery of the Products, the Distributor shall check and carefully examine the amount and quality of the Products. The Distributor shall not be entitled to file any claim whatsoever related to the amount or quality of Products delivered that such party has examined at the time of delivery.
7.3 In the event of defects in the Products supplied by INDUSTRIAS VALLS 1, S.A., the Distributor shall be entitled to return such products to INDUSTRIAS VALLS 1, S.A. within 30 (thirty) days following reception thereof. In such cases, the Distributor shall inform INDUSTRIAS VALLS 1, S.A. in writing of the justification for the defect. INDUSTRIAS VALLS 1, S.A. may examine the Products in order to verify the justification provided by the Distributor. Returned products shall be considered to have been accepted when INDUSTRIAS VALLS 1, S.A. has done so in writing.
8. PRICE
8.1 The price to be paid by the Distributor to INDUSTRIAS VALLS 1, S.A. for the Products shall be agreed on at the appropriate time. Such prices shall be maintained during the entire season, regardless of fluctuations in the currency exchange rates. The prices, currency and the terms of delivery, as well as the conveyance of liability for the Products shall be as agreed on at the appropriate time.
9. PAYMENT
9.1 The Distributor shall pay the full amount of the sum invoiced by INDUSTRIAS VALLS 1, S.A., with no deductions whatsoever, by [ ]. Any change in the aforementioned form of payment must be expressly agreed on by the parties.
9.2 The costs associated with payment shall be paid by the Distributor.
9.3 With the exception of the claims that have been irrevocably decided on by the competent Court in accordance with the terms stipulated herein or which have been expressly acknowledged in writing by INDUSTRIAS VALLS 1, S.A., the Distributor shall not be able to settle the amount of his claims by deducting them from the amounts due to INDUSTRIAS VALLS 1, S.A..
9.4 The Distributor is responsible to INDUSTRIAS VALLS 1, S.A. for all legal as well as non-legal expenses incurred by INDUSTRIAS VALLS 1, S.A. in order to defend and collect outstanding amounts from the Distributor.
10. MINIMUM INVOICING
10.1 The Distributor agrees that, during the twelve (12) month period of duration of this Agreement, his activity shall provide INDUSTRIAS VALLS 1, S.A. with the minimum invoicing established by both parties and specified in Schedule 4 attached hereto.
10.2 If the sales forecast foresees final invoicing for a sum less than that agreed, such circumstances may be considered by INDUSTRIAS VALLS 1, S.A as reason for rescission of the Agreement prior to the period stipulated, pursuant to Clause 16 herein. In the event that, six months following the signing of the agreement or the beginning of any of the extensions hereof, 50% of the minimum amount agreed on has not been reached, INDUSTRIAS VALLS 1, S.A. may rescind this agreement. In such cases, they shall inform the Distributor with 15 days’ prior notice.
10.3 In the event of renewal of this Agreement, INDUSTRIAS VALLS 1, S.A. shall inform the Distributor in writing of the minimum invoicing for each year. If the Distributor does not receive notification from INDUSTRIAS VALLS 1, S.A. regarding the minimum invoicing for a specific year, the objective for that year shall be 5% greater than the most recent objective indicated to the Distributor by INDUSTRIAS VALLS 1, S.A..
11. TRADE NAMES AND BRANDS
11.1 Use of the INDUSTRIAS VALLS 1, S.A. trade names/ brands shall not grant the Distributor any right whatsoever with regard thereto. The Distributor shall not discredit the trade names/brands nor allow them to be damaged in any way. The Distributor shall inform INDUSTRIAS VALLS 1, S.A. of any infringement of the trade names/brands. Moreover, he shall abstain from bringing any action for such reason without the prior consent of INDUSTRIAS VALLS 1, S.A.. In the event that application and/or use of the trade names/brands in the Territory requires that the appropriate brands and/or licences must be registered, INDUSTRIAS VALLS 1, S.A must grant its prior consent before the Distributor shall be able to request such registration. Registration shall be performed as soon as allowed by applicable legislation, by or in the name of INDUSTRIAS VALLS 1, S.A.. Moreover, INDUSTRIAS VALLS 1, S.A shall manage renewal of the registered brands, if required.