Non-Exclusive Agreement Between Manufacturer and Distributor
Agreement made __________ (date), between __________________,
a corporation organized and established under the laws of _____________(state),
having its principal place of business at ________________________
(address), ______________ (city), __________ Shire, _______________
(state), referred to as manufacturer, and _____________, of ________________________
(address), _____________ (city), _____________ Shire, _______________
(state), referred to as distributor.
Manufacturer and distributor agree as follows:
(a) Products: Items manufactured or sold by manufacturer as listed
in Attachment __________.
(b) Qualified Dealer: A retail dealer of products who provides
for consumers a reasonable display consisting of not less than
three models of the products, who maintains sales personnel trained
to instruct consumers in the use of products and who conducts
demonstrations of the products for consumers and similar activities
with a view to increasing consumer acceptance of them.
(c) Sales Quota: The semi-annual sales quota for products for
the territory initially set forth in Attachment _________________
and each subsequent sales quota of which manufacturer shall notify
distributor and which distributor either accepts or does not object
to in writing within __________ days of manufacturers notification.
(d) Territory: The geographical area set forth in Attachment
Manufacturer hereby appoints distributor and distributor accepts
appointment as manufacturers non-exclusive distributor for the
Products in the Territory.
Distributor agrees to promote the good will and name of manufacturer
and to do everything within its capacity to further the interest
of manufacturer. Distributor undertakes and agrees to purchase
and sell to qualified dealers situated within the territory products
having value (determined by the amount invoiced to distributor
by manufacturer) of distributors sales quota. In determining whether
distributor meets its sales quota, manufacturer shall review every
semi-annual period the amount of products invoiced by manufacturer
purchased by distributor and sold by distributor to qualified
dealers situated within the territory. Distributor will take reasonable
steps to assure that its dealer customers are qualified dealers
at the time of every sale by distributor of products. Distributor
will not sell products to anyone other than a qualified dealer.
(a) Distributor agrees to maintain a suitable place of business
from which to conduct its business in the Territory, provided
that all costs and expense incurred by distributor in performance
of this agreement, including all rentals, salaries, commissions,
taxes, licenses, permits, telephone, telegraph, promotional and
advertising expenses, and traveling expenses shall be paid by
distributor and distributor shall not be entitled to reimbursement
therefore from manufacturer.
(b) Distributor will purchase on open account an adequate stock
of the products to meet market requirements with respect to the
Distributor will assist qualified dealers in the territory in
maintaining their status with respect to the marketing of products
to consumers by providing the following support:
(a) Distributor will assist and participate with qualified dealers
in a continuous program of demonstrations of the products.
(b) Distributor will provide instruction and sales training concerning
the products to sales personnel of qualified dealers.
(c) Distributor will make available to qualified dealers the
advertising allowances and other promotions that are granted to
distributor by manufacturer for the purpose of assisting qualified
dealers market the Products.
CATALOGS, LITERATURE, ETC.
Manufacturer will provide distributor at a reasonable charge
a reasonable quantity of catalogs, service, technical and advertising
materials deemed appropriate by manufacturer relating to the products
as they are issued from time to time.
PRICES, DISCOUNTS AND PAYMENTS
(a) All prices and discounts are subject to change without notice.
(b) For Products sold to distributor on open account, distributor
shall pay to manufacturer the full amount of the purchase price
of the products, on due date of invoice of products. All open
accounts unpaid beyond date of invoice will bear interest at an
annual rate of __________ percent (__________%).
(c) In the event distributors account with manufacturer is past
due, manufacturer need not sell to distributor nor supply distributor
(d) All prices are F.O.B. the manufacturers distribution facility
for products nearest to the Territory as designated by manufacturer.
Distributor shall bear all costs, insurance premiums, freight
and all other charges or expenses incurred after manufacturer
has placed the products in the custody of a carrier at the place
of shipment to distributor.
(e) Sales or use taxes required by law to be collected or paid
by manufacturer shall be additional to prices quoted.
DELIVERY, TITLE, RISK OF LOSS AND INSPECTION
(a) Manufacturer shall not be liable in any respect for failure
to ship or for delay in shipment of products pursuant to accepted
orders where such failure or delay shall have been due wholly
or in part to shortage or curtailment of material, labor, transportation
or utility services, or to any labor or production difficulty
in manufacturers plants or those of its suppliers, or to any cause
beyond manufacturers control or without manufacturers fault or
negligence, and manufacturer shall not be liable for shipping
products over routes or by means of transportation other than
as specified by distributor.
(b) Title to and risk of loss of the product shall pass to distributor
on manufacturers placing such Products in the custody of a carrier
for shipment to distributor.
(c) Within __________ days following the date of receipt by distributor,
distributor shall inspect the products and shall immediately notify
manufacturer of any defects in the products. Failure by distributor
to notify manufacturer in writing of any defects in the products
within the __________ days shall be conclusive proof that the
products have been received by distributor without defects.
(d) Manufacturer shall in no event have any responsibility for
any damage caused to the Products during shipment. It shall be
the sole responsibility of distributor to file any appropriate
claims for reimbursement with the carrier.
(a) Manufacturer shall from time to time advise distributor in
writing of the warranty or warranties applicable to the products.
Distributor is expressly prohibited from extending any warranty
or warranties on behalf of manufacturer to any person.
(b) THERE SHALL BE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR ANY OTHER
OBLIGATION ON THE PART OF MANUFACTURER WITH RESPECT TO ANY OF
THE PRODUCTS EXCEPT THE WARRANTY OR WARRANTIES EXTENDED PURSUANT
TO THIS SECTION.
(c) In any event and notwithstanding anything in this instrument
to the contrary, manufacturers liability under any warranty shall
be discharged by replacing or repairing any part or parts which
may prove defective under normal or proper use, within the effective
period of the warranty, if shown to be defective by proper evidence
submitted to manufacturer. Manufacturer shall have no liability
whatever for any incidental or consequential damages.
(d) It is expressly agreed that any and all warranties and/or
guarantees as dated shall immediately cease and terminate, notwithstanding
anything in this instrument to the contrary, in the event that
any parts and/or structural components or appurtenances thereto
are altered or modified by distributor or the user of the Products
without the express written consent of manufacturer.
Distributor agrees to submit to manufacturer such reports as
may reasonably be necessary for the improvement of the marketing
or the servicing of the products and/or improvements in the actual
Products, provided that such reports are not unduly burdensome
in view of the mutual obligations of manufacturer and distributor.
RESERVATION OF RIGHT
No order shall be deemed binding on manufacturer until accepted
by manufacturer, and manufacturer reserves the right to reject
any order or to cancel the same or any part of it after acceptance,
for credit or any other reason whatsoever deemed by manufacturer
to be sufficient.
RELATIONSHIP BETWEEN PARTIES
This agreement does not in any way create the relationship of
principal and agent or employer and employee between manufacturer
and distributor, and under no circumstances shall distributor
be considered to be the agent or employee of manufacturer. Distributor
shall not act or attempt to act, or represent itself directly
or by implication, as agent or employee of manufacturer or in
any manner assume or create, or attempt to assume or create, any
obligation on behalf of or in the name of manufacturer and will
not make any representations, guaranties or warranties on behalf
of or in the name of manufacturer with respect to the Products.
Distributor shall not use manufacturers name, service mark or
trademark without manufacturers prior written consent, except
in connection with the sale of manufacturers products.
DURATION OF AGREEMENT
The term of this agreement shall be __________ year(s) from the
date hereof and may be renewed for additional __________ (specify
duration, such as: five year) periods by each party giving written
notice of such intent to the other party. If after the expiration
of the term of this agreement, or in a renewal period, this agreement
has not been renewed as above provided, then this agreement shall
continue in effect, except that it shall be terminable by either
party on __________ days written notice to the other party.
(a) Manufacturer may terminate this agreement by giving distributor
__________ days written notice (i) in the event distributor shall
have failed to fulfill or to perform any one or more of the duties,
obligations or responsibilities undertaken by it pursuant to Sections
Three, Five and Twelve of this agreement, (ii) if distributor
and manufacturer, after an attempt to reach a mutual agreement
as to any sales quota of which manufacturer has notified distributor,
failed to agree on the sales quota to be established, or (iii)
in the event of any change of which distributor is required to
notify manufacturer pursuant to Section Twenty-Three of this agreement.
(b) Manufacturer may terminate this agreement by giving distributor
written notice, effective immediately, in any one of the following
(i) If distributor shall continue in default of any duty, obligation
or responsibility imposed on it by this agreement, other than
as provided for in subsection (a) of this Section Fourteen, for
__________ days after written notice to distributor of such default;
(ii) Any assignment or attempted assignment by distributor of
any interest in this agreement without manufacturers prior written
(iii) Any sale, transfer or relinquishment, voluntary or involuntary
by operation of law or otherwise, of any substantial interest
in the direct or indirect ownership of distributor;
(iv) If distributor becomes insolvent, files or has filed against
it a case in bankruptcy, makes a general assignment for the benefit
of its creditors or has a receiver or trustee appointed for its
business or properties.
(c) In the event of termination of this agreement either under
this section of Sections Three, Thirteen or Fifteen:
(i) Distributor shall promptly return to manufacturer all documents,
materials and all tangible property supplied without charge by
manufacturer and shall maintain any confidential information received
from manufacturer which is incapable of return;
(ii) With respect to all new unused Products in distributors
inventory, manufacturer shall have, at its sole discretion, the
option to purchase from distributor any or all such Products at
the prevailing price for Products charged to distributors by manufacturer
at the date of termination; or at such price as the parties may
mutually agree to. As to any Products so purchased by manufacturer,
distributor will bear all costs and expenses in returning such
Products to manufacturer.
(d) Any termination of this agreement shall be without prejudice
to any right which shall have accrued to either party hereunder
prior to such termination.
CONFORMITY WITH LOCAL LAW
The rights and obligations of the parties under this agreement
shall be subject to all applicable laws, orders, regulations,
directors, restrictions and limitations of the governments having
jurisdiction over the parties to this agreement. In the event,
however, that any such law, order, regulation, direction, restriction
or limitation, or interpretation of it shall in the judgment of
manufacturer substantially alter the relationship between the
parties under this agreement, or the advantages derived from such
relationship, either party may request the other party to modify
this agreement, and if, within __________ days subsequent to the
making of such request, parties are unable to agree on a mutually
satisfactory modification of this agreement, then the party giving
notice may terminate this agreement on __________ days notice
to the other party not later than __________ days following the
end of such __________ period.
Manufacturer will investigate all claims made and defend every
legal action brought against distributor or any user of the product
sold by distributor hereunder for any alleged infringement of
any patent, arising by virtue of the sale or normal use of such
products, and manufacturer will pay all final judgments, costs
and expenses that are entered or incurred by reason of such claims
or actions, provided manufacturer shall have been given prompt
notice and allowed to deal with and defend such claims and actions
from the beginning.
Manufacturer shall not be liable under the provisions of this
agreement for damages on account of strikes, lockouts, accidents,
fires, delays in manufacturing, delays of carriers, acts of God,
governmental actions, state of war or any other causes beyond
the control of manufacturer whether or not similar to those enumerated.
Neither this agreement nor any right under it or interest in
it may be assigned by either party without the prior written consent
of the other party.
Unless otherwise specified in this agreement, all notices required
or permitted to be given under it shall be in writing and sent
by mail to the principal office of the other party indicated in
this agreement or at such other address as the parties may designate
GOVERNING LAW AND ARBITRATION
This agreement in performance hereunder shall in all respects
be governed by the laws of ______________ (state). Any controversy
or claim arising out of or relating to this agreement or a breach
hereof, shall be settled by arbitration in ______________ (city),
__________ Shire, __________ (state), in accordance with the rules
of the Australian Arbitration Association, and judgment on the
award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
This agreement supersedes and cancels any and all prior agreements
between the parties, express or implied, with respect to the purchase
and sale of any of the products. This instrument sets forth the
entire agreement between the parties; it may not be changed, altered
or amended except in writing signed by both parties to it.
The failure or refusal by manufacturer either to insist on the
strict performance of any provision of this agreement or to exercise
any right in any one or more instances or circumstances shall
not be construed as a waiver or relinquishment of such provision
or right, nor shall such failure or refusal be deemed a custom
of practice contrary to such provision or right.
OWNERSHIP AND OPERATION OF DISTRIBUTOR
This agreement has been entered into by manufacturer with distributor
in reliance (i) on the representation and agreement that the following
person(s) substantially participate(s) in the ownership and management
of distributor: _____________ (name), _______________________
(address), _____________ (city), __________ Shire, __________
(state), __________ (percentage of interest); and (ii) on the
representation and agreement that the business of distributor
shall be conducted at the address set forth in this agreement
as distributors principal place of business. In the event of any
change in the ownership of the named person(s) and distributor,
or of any change in a managerial authority or responsibility of
such named person(s) and distributor, or a change in the address
of distributors principal place of business, distributor shall
give prior written notice thereof (except in the event of a change
caused by the death of any such person(s), in which case distributor
should give immediate notice thereof) in writing to manufacturer,
but no such change or notice shall modify any of the provisions
of this agreement unless and until embodied in an appropriate
amendment to this agreement duly executed by ________________
(name of officer of manufacturer) and delivered by manufacturer
and by distributor.
In witness whereof, the parties have executed this agreement
at __________ (designate place of execution), the day and year
first above written.