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Non-Exclusive Agreement Manufacturer And Distributor
NON-EXCLUSIVE AGREEMENT MANUFACTURER AND DISTRIBUTOR
Agreement made [Date of Agreement], between [Name of Manufacturer], a corporation organized and established under the laws of [State of Manufacturer], having its principal place of business at [Address of Manufacturer], [City of Manufacturer], [State of Manufacturer], referred to as manufacturer, and [Name of Distributor], of [Address of Distributor], [City of Distributor], [State of Distributor], referred to as distributor.
Manufacturer and distributor agree as follows:
SECTION ONE:
DEFINITIONS
(a) Products: Items manufactured or sold by manufacturer as listed in Attachment [Items 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 .
SECTION TWO:
APPOINTMENT
Manufacturer hereby appoints distributor and distributor accepts appointment as manufacturers non-exclusive distributor for the Products in the Territory.
SECTION THREE:
SALES
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.
SECTION FOUR:
ADEQUATE FACILITIES
(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 territory.
SECTION FIVE:
SUPPORT OBLIGATIONS
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.
SECTION SIX:
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.
SECTION SEVEN:
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 with products.
(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.
SECTION EIGHT:
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.
SECTION NINE:
WARRANTIES
(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 andor guarantees as dated shall immediately cease and terminate, notwithstanding anything in this instrument to the contrary, in the event that any parts andor structural components or appurtenances thereto are altered or modified by distributor or the user of the Products without the express written consent of manufacturer.
SECTION TEN:
REPORTS
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 andor improvements in the actual Products, provided that such reports are not unduly burdensome in view of the mutual obligations of manufacturer and distributor.
SECTION ELEVEN:
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.
SECTION TWELVE:
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.
SECTION THIRTEEN:
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.
SECTION FOURTEEN:
TERMINATION
(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 events.
(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 [Grace period in days to notify of default] 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 consent;
(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.
SECTION FIFTEEN:
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.
SECTION SIXTEEN:
PATENTS
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.
SECTION SEVENTEEN:
FORCE MAJEURE
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.
SECTION EIGHTEEN:
ASSIGNMENT
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.
SECTION NINETEEN:
NOTICES
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 in writing.
SECTION TWENTY:
GOVERNING LAW AND ARBITRATION
This agreement in performance hereunder shall in all respects be governed by the laws of [State of Jurisdiction]. Any controversy or claim arising out of or relating to this agreement or a breach hereof, shall be settled by arbitration in [City of Court], [State of Court], in accordance with the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
SECTION TWENTY-ONE:
ENTIRE AGREEMENT
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.
SECTION TWENTY-TWO:
NON-WAIVER
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.
SECTION TWENTY-THREE:
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 of Distributor], [Address of Distributor], [City of Distributor], [State of Distributor], [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 [Designated place of execution], the day and year first above written.
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