DISTRIBUTION AGREEMENT
This Agreement,
made on…... 2006 by and between
and
IL TUO DISTRIBUTORE, a corporation duly
organized under the laws of the Brazilian Republic, Curitiba, State of Paranà
and having its principal place of business at ..., represented by Mr…………,
resident in Curitiba, Rua do Ferdinand, 967, Paranà, identity card n…………. (hereinafter "Distributor"),
Whereas, Supplier
manufactures and markets certain products and desires to increase the sales of such
products in the territory as defined hereinafter;
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IL CONTRATTO È INCOMPLETO, A RICHIESTA
SARÀ INVIATA UNA COPIA COMPLETA (artt.17
ss Cod.Deont.) STUDIO
MISURACA &
Associati/Associates
Studio Legale Law Firm Il contratto manca di molte clausole, lo studio legale SMAF invia su
gentile richiesta una completa copia a titolo di prestazione professionale a
pagamento ex artt.17 ss. Cod. Deont. Forense / The contract has missing clauses; please,
consider SMAF law firm allowed to send a you a payable copy according to
Italian Forensic Deontology Code. |
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Whereas,
Distributor has represented that it possesses the necessary expertise and
marketing organization to promote and sell such products in the territory; and
Whereas, Supplier
is willing to appoint Distributor and Distributor is willing to accept such
appointment as Distributor of Supplier's products as defined hereinafter in the
territory;
Now, therefore,
in consideration of the mutual premises and covenants hereinafter set forth,
the parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of
this Agreement, the following words, terms and phrases, shall have the meanings
assigned to them in this Article 1 unless the context otherwise requires:
1.1. Products.
«Products» shall mean INDICA I TUOI PRODOTTI and their components manufactured by the Supplier and described in
Supplier Products catalogue (indicated in Exhibit 1), delivered to the
Distributor and resold by this latter with the logo (trademark) «.» pursuant to this Agreement.
1.3 Supplier
List Price. "Supplier List Price" shall mean the prices showed on
the official current published price-list as described in Exhibit II.
1.4 Supplier
information. "Supplier Information" shall mean all information,
other than information in published form or expressly designated by Supplier as
non-confidential, which is directly or indirectly disclosed to Distributor or
embodied in Products provided hereinafter, regardless of the form in which it
is disclosed, relating in any way to Supplier's markets, customers, products,
patents, inventions, procedures, methods, designs, strategies, plans, assets,
liabilities, costs, revenues, profits, organization, employees, agents,
Distributors or business in general.
ARTICLE 2
APPOINTMENT
2.1.Scope. Supplier hereby
appoints Distributor, and Distributor hereby accepts appointment, as Supplier's
exclusive Distributor during the term of this Agreement with the right to sell
the Products specified hereinafter in the Territory, under Supplier's and
Distributor's name, logotypes, and trademarks, subject to all the terms and
conditions of this Agreement.
2.2.Subdistributors. Distributor
shall not, without the prior written approval of Supplier, appoint any
sub-distributors or agents to promote and/or distribute Products within the
Territory. Further, notwithstanding any such appointments, or Supplier’s approval thereof, Distributor
shall at all times remain fully liable for the performance of its distributors
and/or agents and Distributor hereby agrees to indemnify and hold harmless
Supplier from all damages, losses, costs or expenses arising in any manner from
any act or omission on the part of its sub-distributors or agents.
ARTICLE 3
GENERAL OBLIGATIONS OF DISTRIBUTOR
3.1. Marketing.
Distributor shall have the following obligations with respect to the marketing
and distribution of Supplier's Products:
a) To use its
best efforts to further the promotion, marketing, sale of Products in the
Territory;
b) To promptly
respond to all inquiries from customers, including complaints, process all
orders, and effect all shipments of Products;
c) To diligently
investigate all leads with respect to potential customers referred to it by
Supplier;
d) To not sell or
be involved in, either directly or indirectly, also through the taking on of
holdings or participation in other firms, in the sale of Products which are in
any way in competition with the models supplied by the Supplier without the
prior written consent of this latter;
e) To observe and
give notice to customers of the instructions, information or warnings received
by Supplier in relation to the storage, conservation and correct use of the
Products;
f) To not cancel
or remove the trademarks or other distinguishing signs placed upon the Products;
g) To timely
inform Supplier of each change in the applicable provisions of law with which
the Products must comply;
h) To not assign
the rights or obligations of this Agreement including to its associated or
subsidiary companies;
i) To provide Supplier
within sixty (60) days of the end of the fiscal year with a report of its
activities with respect to the Products in the Territory during such year.
3.2. Customer
Support. Distributor agrees to cooperate with Supplier in dealing with any
customer complaints concerning the Products and take any action requested by
Supplier to resolve such complaints. In any case Supplier will not assume
responsibility other than those forseen in
the present Agreement.
3.3. Expenses.
Distributor assumes full responsibility for all costs and expenses which it
incurs in carrying out its obligations under this Agreement including but not
limited to all rentals, salaries, commissions, advertising, demonstration,
travel and accommodation expenses without the right to reimbursement for any
portion thereof from Supplier.
ARTICLE 4
SAMPLE PRODUCTS AND CATALOGUES
Sample Products. Distributor has
requested sample Products for an amount
of ... milions of Italian Lire that will be paid in two times starting 180 days
from the date of invoice, by swift to the bank specified by Supplier. This
amount will be turned off in half (... milions of I£) if 180 days after the date
of invoice the minimum sales will be met
by the Distributor as in Article 6.1 hereto; the second half (... milions of
I£) will be turned off at the end of the
first year if the minimum sales will be met as
in Article 6.1 hereto.
If the minimum
sales target will not be met, the amount of ... milions of I£ will be turned
off in proportion to the sales target achieved.
Catalogues. It is agreed
that the Supplier will furnish to
the Distributor the catalogues. The parties will agree the contents of the
catalogues, all the catalogues will be in English language.
ARTICLE 5
ORDERS AND STOCK OF PRODUCTS
5.1. Purchase
Orders. Distributor shall submit to Supplier the purchase order for the
Products at least 60 days prior the delivery dates requested. All orders shall
be sent to Supplier in writing and shall contain all information required for
the correct identification of the Products ordered. Conclusion of the order is
subject to total or partial availability of the Products and to written
confirmation by Supplier to be sent within 15 days of receipt of the order.
5.2. Delivery
Terms. All deliveries of the Products shall be Ex Works at Supplier's
manufacturing facility. Supplier shall have no further responsibility for the
Products, and all risk of damage to or loss or delay of the Products shall pass
to Distributor upon their delivery at Ex Works delivery point to a common
carrier or an agent or any other person specified by Distributor acting on
behalf of Distributor.
5.3. Product
Changes. Supplier reserves the right, in its sole discretion and without
incurring any liability to Distributor to alter the specifications for any
Product or discontinue the manufacture of any Product or to add any new
product.
ARTICLE 6
MINIMUM SALES
6.1. Distributor
agrees upon a minimum sales commitment for the term of this Agreement with
Supplier. The minimum sales amount for the first year agreed is ... ( ...
) milions of I£ or ... Euro.
For the following
years the parties will agree for each year a minimum sales that will be not
lower than those of the last year. The
parties agree on Article 11.1 hereto.
6.2. For the purposes
of article 6.1. hereof, the price charged by Distributor net of discounts and
rebates shall be used in making the calculation.
6.3. If the
minimum sales commitment is not met, Supplier may , at his discretion,
eliminate the exclusive appointment to the Distributor, or may terminate the
Agreement on giving 3 (three) months' written notice, without any liability for
damages to Supplier.
ARTICLE 7
PRICES AND PAYMENTS
7.1. Prices.
The prices to be paid by Distributor for Products purchased pursuant to this
Agreement are the ones listed in the current Supplier's price list less ... %
and less ...% on the first amount (e.g.: 1000-...%= ...- ...%=...) discount
(Exhibit II). Those prices are Ex Works Supplier's warehouse facility and
include standard packing in accordance with Supplier's standard commercial
export practices in effect at the time of shipment. Special packing may be
required as option and are subject to extra-charges.
7.2. Price
Increases. Supplier may, at any time during the term of this Agreement,
increase its prices for the Products by providing Distributor with at least
sixty (60) days prior written notice. Increased prices for all Products shall
not apply to purchase orders accepted.
7.3. Payment
Terms. All payments hereunder shall be due net sixty (60) days from the
date of invoice payable by transfer, swift, to the bank specified by Supplier
from time to time. The above term is subject to bank references and may be
changed in any time into stricter terms. All payments hereunder shall be made
in Lire or Euro.
7.4. Resale
Prices. Distributor may resell Products at such price as Distributor, in
its sole discretion, shall determine. Distributor shall, for information,
provide Supplier with a list of its initial sales prices for the Products to be
charged to its customers and shall keep Supplier fully informed of any change
in such list prices.
7.5. Overdue
Payments. If and for so long as any payment from Distributor to Supplier
under this Agreement shall be overdue:
a) Interest at the rate as
prime Rate ABI plus 2% (two percent) as published in the Sole 24 Ore; and
b) Supplier shall have the
right to require payment for additional shipments of Products either by cash in
advance or by an irrevocable confirmed letter of credit instead by open account
as provided above.
7.6. Passing
of Property. The Products, components and spare parth both as whole and
individually shall remain the property of Supplier until the entire price of
the Products has been paid. Notwithstanding the terms of the first paragraph of
this Article, the risk in the Products shall pass in the Distributor from the
Products are delivered.
The
warranty clause will apply only if no payments for the Products are overdue by
the
Distributor.
ARTICLE 8
ACCEPTANCE AND WARRANTY
8.1. Acceptance
of Products. In the event of any shortage, damage or discrepancy of
Products, Distributor shall promptly report the same to Supplier and furnish
such written evidence or other documentation as Supplier may deem appropriate.
Supplier shall not be liable for any such shortage, damage or discrepancy,
unless Supplier has received notice and substantiating evidence thereof from
Distributor within 15 (fifteen) days of arrival of the Products at
Distributor's shipping address in the Territory. If the substantiating evidence
delivered by Distributor demonstrates to Supplier's satisfaction that Supplier
is responsible for such shortage, damage or discrepancy, Supplier shall
promptly deliver additional or substitute Products to Distributor in accordance
with the delivery procedures set forth herein; provided that in no event shall
Supplier be liable for any additional costs, expenses or damages incurred by
Distributor directly or indirectly as a result of such shortage, damage or discrepancy.
8.2. Product
Warranty. Supplier warrants for a period of twelve (12) months after the
date of delivery that the Products shall be free from defects in material and
workmanship, moreover Supplier agrees to
warrant for a period of ... (...) years the coat of paint of Products, and the sliding accessories of
Products for ... (...) working cycles.
Supplier's sole
obligation in the event of a breach of such warranty and recognized by
Supplier, (after checking defects on the returned parts), shall be to provide
at no charge to Distributor replacement parts for all defective parts. In no
event shall Supplier have any responsibility or bear any liability for the cost
of labor for the repair of any defective Products or parts, the removal of
defective parts or the installation of replacement parts. All costs of shipment
of the replacement parts to Distributor shall be borne by Supplier. Distributor
shall ship back to the Supplier, at his expenses, the defected parts for being
checked and all such replaced parts shall become the property of Supplier upon
their replacement.
Warranty claims
hereunder must be made promptly and in writing;
must recite the nature and details of the claim, the date and the cause
of the claim was first observed and must be received by Supplier no later than
7 (seven) days after the expiration of the warranty period.
8.3. Excluded
Claims. Supplier shall have no obligation in the event that:
a) Repair or
replacement of Products or parts shall have been required through normal wear and
tear or necessitated in whole or in part by force major as defined in Article
12 or by the fault or negligence of Distributor or its customers; or
b) The Products
or parts have not been properly used, maintained, or repaired in accordance
with Supplier's then applicable operating and/or maintenance manuals, whether
by Distributor or its customers, or shall have been modified in any manner
without prior written consent of Supplier or they have not been enough
protected in the shipment by the carrier.
8.4. Limited
Warranty. The warranties set forth in this Article are intended solely for
the benefit of Distributor. All claims hereunder shall be made by Distributor
and may not be made by Distributor's customers. The warranties set forth above
are in lieu of all other warranties, express or implied, which are hereby
disclaimed and excluded by Supplier, including without limitation any warranty
of merchantability or fitness for a particular purpose or use and all
obligations or liabilities on the part of Supplier for damages arising out of
or in connection with the use, repair of performance of the Products. It is
expressly agreed that the warranties set forth in this Article are excluded if
the entire price of the Products has not been paid.
ARTICLE 9
CONFIDENTIALITY
Distributor
acknowledges and agrees that all Supplier information including know-how is
confidential and proprietary to Supplier. Distributor agrees not to use any of
such Supplier information during the term of this Agreement and for a period of
two (2) years thereafter for any purpose other than as permitted or required
for performance by Distributor hereunder. Distributor further agrees not to
disclose or provide any of such Supplier information to any third party and to
take all necessary measures to prevent any such disclosure by its employees,
agents, contractors or consultants during the term hereof and for a period of 2
(two) years thereafter. Nothing herein shall prevent Distributor from using,
disclosing or authorizing the disclosure of any Supplier information which is,
or hereafter becomes, part of the public domain.
____________________________
Distributor
____________________________
Supplier
EXHIBIT I
Products
EXHIBIT II
Seller List Price
EXHIBIT III
Trademarks
In
Witness whereof, the parties and the authorized representatives have caused
this Agreement to be executed on the date first above written.
_____________ _____________
Supplier Distributor
ONEROUS CLAUSES
The
following Articles have been read and are hereby specifically approved in
writing:
Art.3 : General obligations of Distributor,
Art.6 : Minimum sales target,
Art.7 : Prices and payments,
Art.8 : Acceptance and warranty,
Art10
: Logo,
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Distributor
EXHIBIT I
Products
EXHIBIT II
Seller List Price
EXHIBIT III
Trademarks