Dated : ________________
Perla
Address
Poland
-and-
Brand Distribution and Development Limited
Unit 14 Cumberland Business Park
17 Cumberland Avenue
Park Royal
London NW10 7RT
Telephone : +44 208 955 6878
Facsimile : +44 208 955 6879
Distribution Agreement
THIS AGREEMENT dated this ___ day of _______ 20__
BETWEEN:
1. “Perla / the Brewery”: a corporation organised and existing under the laws of Poland, having its principal place of business at Address, Poland;
and
2. “The Distributor”: Brand Distribution and Development Limited, a company constituted under English Law and having its principal place of business at Unit 14 Cumberland Businees Park, 17 Cumberland Avenue, Park Royal, London NW10 7RT, United Kingdom
RECITALS:
A. The Brewery manufactures alcoholic beverages
B. The Distributor wishes to act as Authorised Sole Distributor for certain products of the Brewery [as agreed from time to time] within the United Kingdom and Eire and other territories [as amended from time to time]
OPERATIVE PROVISIONS:
1. Interpretation
1.1 In this Agreement, unless the context otherwise requires:
“Force Majeure” means; in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other form of industrial action).
“Intellectual Property” means; any patent, copyright, registered design, trade mark or other industrial or intellectual property right subsisting in the Territory in respect of the Products, and applications for any of the foregoing.
“Products” means; subject as provided in clause 3.2, such of the products listed in Schedule 1 as are at the date of this Agreement in the range of products manufactured by or for the Brewery, and such other products as may from time to time be agreed in writing by the parties.
“Territory” means;
(a) United Kingdom and Eire;
(b) Republic of Singapore and Malaysia [including Borneo and Sarawak];
(c) Hong Kong;
(d) Thailand; and
(e) Vietnam
“Trade Marks” means;
(a) the trade marks registered in the name of the Brewery of which particulars are given in Schedule 2;
(b) such other trade marks as are used by the Brewery on or in relation to the Products at any time during this Agreement.
“Year of Agreement” means;
(a) the period of 12 months from the date of this Agreement and each subsequent consecutive period of 12 months during the period of this Agreement.
1.2 Any reference in this Agreement to “writing” includes a reference to facsimile transmission, electronically transmitted mail (email) or comparable means of communication.
1.3 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.4 The headings in this Agreement are for convenience only and shall not affect its interpretation.
2. Appointment of Distributor
2.1 The Brewery hereby appoints Brand Distribution and Development Limited as Official Distributor for the resale of the Products in the Territory, and the Distributor agrees to act in that capacity, subject to the terms and conditions of this Agreement.
2.2 The Brewery shall not for the duration of this Agreement:
2.2.1 appoint any other person, firm or company in the Territory as a distributor or agent for the Products in the Territory; or
2.2.2 supply to any other person, firm or company in the Territory any of the Products, whether for use or resale.
2.3 The distributor shall be entitled to describe itself as the Brewery’s “Authorised Distributor” for the Products, but shall not hold itself out as the Brewery’s agent for sales of the Products or as being entitled to bind the Brewery in any way.
2.4 The Distributor shall not:
2.4.1 obtain the Products for resale from any person, firm or company other than the Brewery; or
2.4.2 sell the Products to any customer in any country which is:
(a) outside the Territory and outside the European Economic Area; or
(b) within the Territory if to the knowledge of the Distributor that customer intends to resell the Products in any country which is outside the Territory and outside the European Economic Area.
2.5 The Distributor shall be entitled to extend the Territory to include France, Spain and Portugal provided the Distributor sells a minimum of 24 (twenty four) containers of the Products in any Year of this Agreement into France and/or Spain and/or Portugal. The Distributor may exercise the Option by Notice to the Brewery as provided in Clause 13.
2.6 This agreement in no way effects or is associated in any way with any other agreement which might exist between the Distributor and the Brewery or any subsidiary company of the Brewery or any associated company of the Brewery.
3. Supply of the Products
3.1 Subject as provided in clause 3.2, The Brewery shall use its best endevours to supply the Products to the Distributor in accordance with the Distributor’s orders.
3.2 The Brewery shall not be under any obligation to continue the manufacture of all or any of the Products, and shall be entitled to make such alterations to the specifications of the Products as it may think fit subject to giving the Distributor as soon as possible notice in writing of any material changes to the Products, provided that for as long as the Brewery do continue to manufacture the Products, those Products shall be manufactured to the highest standards and no less a standard of quality than exist and not a higher alcohol volume per unit at the date hereof.
3.3 The Distributor shall, in respect of each order for the Products to be supplied hereunder, be responsible for:
3.3.1 ensuring the accuracy of the order;
3.3.2 providing the Brewery with any information which is necessary in order to enable the Brewery to fulfil the order and to comply with all labelling, marketing and other applicable legal requirements in the Territory; and
3.3.3 obtaining any necessary import licences, certificates of origin or other requisite documents, and paying all applicable customs duties and taxes in respect of the importation of the Products into the Territory and their resale in the Territory.
3.4 Upon receipt and confirmation of each order the Brewery shall as soon as is practicable inform the Distributor of Brewery’s estimated delivery date for the consignment.
3.4.1 The Brewery shall use all reasonable endeavours to meet the delivery date, and time of delivery shall be of the essence and accordingly the Brewery shall have a liability to the Distributor if, notwithstanding such endeavours, any delivery of any order is longer than three weeks from the date of receipt of such order.
3.5 The conditions of sale of Incoterms 90 as amended from time to time shall apply to all sales of the Products to the Distributor pursuant to the Agreement and all deliveries shall be accompanied by a completed EUR1 certificate.
4. Payments for the Products
4.1 All products to be supplied by the Brewery pursuant to this Agreement shall be sold on an ex. works basis, unless otherwise agreed and specified in Schedule 3 hereto, and accordingly the Distributor shall, in addition to the price, be liable for arranging and paying all costs of transport and insurance.
4.2 Where the Brewery agrees to arrange for transport and insurance as agent for the Distributor, the Distributor shall reimburse to the Brewery the full cost thereof and all applicable provisions of this Agreement shall apply with respect to payment of such costs as they apply to payment of the price of the products.
4.3 The prices charged for the products, together with full details of marketing support payments are fully specified in Schedule 3 and may be changed at any time by mutual consent in writing. Such changes to be effective 14 days from the date of agreement.
4.4 If the Distributor fails to pay the price for any Products within 30 days after date of delivery, the Brewery shall be entitled (without prejudice to any other right or remedy it may have) to:
4.4.1 cancel or suspend any further delivery to the Distributor under any order;
4.4.2 charge the Distributor interest on the price at the rate of 1 (one) percent per annum above Barclays Bank Plc base rate in force from time to time from the date the payment became due until actual payment is made.
4.5 All prices for the sale Products are exclusive of any applicable value added or any other sales tax, for which the Distributor shall be additionally liable.
4.6 All payments shall be made by the Distributor in sterling by transfer to such bank account(s) as the Brewery may from time to time notify in writing to the Distributor.
4.7 In respect of any credit extended by the Brewery the Distributor shall provide to the Brewery a Guarantee in the form of a Directors Undertaking.
4.8 The prices agreed in Schedule 3 hereto are calculated at an Exchange Rate of £1 = US$ 1.45. The Exchange Rate will be reviewed from time to time and any new rate agreed will be confirmed in writing by both parties.
5. Marketing of the Products
5.1 The Distributor shall use its reasonable endeavours to promote the sale of the Products throughout the Territory and, subject to compliance by the Brewery of its obligations under clause 3.1, to satisfy market demand therefor.
5.2 The Distributor shall be entitled, subject as provided in this Agreement, to promote and market the Products in the Territory in such manner as it may think fit, and in particular shall be entitled to resell the Products to its customers at such prices as it may determine.
5.3 In connection with the promotion and marketing of the Products the Distributor shall:
5.3.1 make clear, in all dealings with customers and prospective customers, that it is acting as distributor of the Products and not as agent of the Brewery;
5.3.2 comply with all legal requirements in force relating to the storage and sale of the Products;
5.3.3 provide the Brewery on a quarterly basis with a report, in such form as the Brewery may reasonably require, of sales of the Products which it has made in the preceding quarter and containing such other information as the Brewery may reasonably require;
5.3.4 from time to time consult with the Brewery’s representatives for the purpose of assessing the state of the market in the Territory and permit them to inspect any premises or documents used by the Distributor in connection with the sale of the Products.
6. Support and Training
The Brewery shall from time to time provide the Distributor with such samples, catalogues, brochures and up to date information concerning the Products as the Brewery may consider appropriate or as the Distributor may reasonably require in order to assist the Distributor with the sale of the Products in the Territory, and the Brewery shall endeavour to answer as soon as possible any technical enquiries concerning the Products which are made by the Distributor or its customers. The Brewery shall, in particular, allow reasonable technical audits from the customers of the Distributor.
7. Intellectual Property
7.1 The Brewery hereby authorises the Distributor to use the Trade Marks in the Territory on or in relation to the Products for the purposes only of exercising its rights and performing its obligations under this Agreement.
7.2 The Distributor shall not:
7.2.1 make any modifications to the Products or their packaging;
7.2.2 alter, remove or tamper with any Trade Marks, numbers or other means of identification used on or in relation to the Products;
7.2.3 use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Brewery therein;
7.2.4 use in relation to the Products any trade marks other than the Trade Marks without obtaining the prior written consent of the Brewery; or
7.2.5 use in the Territory any Trade marks or any trade names so resembling any trade mark or trade names of the Brewery as to be likely to cause confusion or deception.
7.3 Except as provided in clause 7.1 the Distributor shall have no rights in respect of any trade names or Trade Marks used by the Brewery in relation to the Products of or the goodwill associated therewith, and the Distributor hereby acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested in the Brewery.
7.4 The Distributor shall promptly and fully notify the Brewery of any actual, threatened or suspected infringement in the Territory of any Intellectual Property of the Brewery which comes to the Distributor’s notice, and of any claim by any third party so coming to its notice that the importation of the Products into the Territory, or their sale therein, infringes any rights of any other person, and the Distributor shall at the request and expense of the Brewery do all such things as may be reasonably required to assist the Brewery in taking or resisting any proceedings in relation to any infringement or claim.
8. Warranties and Liabilities
8.1 The Brewery warrants to the Distributor that:
8.1.2 the trade marks of which registration particulars are given in Schedule 2 are registered in the name of the Brewery or a company owned and controlled by the Brewery and that it has disclosed to the Distributor all trade marks and trade names used by the Brewery in relation to the products at the date of this Agreement; and
8.1.3 it is not aware of any rights of any third party in the Territory which would or might render the sale of the Products, or the use of any of the Trade Marks on or in relation to the Products, unlawful; and
8.1.4 it is legally entitled to enter in to this agreement; and
8.1.5 it has not entered in to any other agreement covering the products specified herein or the territorial rights conferred herein with any other individual; and
8.1.6 it will vigourously and expeditiously deal with any and all false claims which impede the Authorised Distributor from promoting the products.
9. Force Majeure
9.1 If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof
9.2 Neither party shall be deemed to be in breech of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party; and the time for performance of that obligation shall be extended accordingly.
9.3 If the Force Majeure in question prevails for a continuous period in excess of six months, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
10. Duration and Termination
10.1 This Agreement shall come in to force on the date hereof and, subject as provided in this clause 10, shall continue in force for a period of three years and thereafter unless or until terminated by either party giving to the other not less than six month’s written notice but not earlier than two years from the date of Agreement. Provided the Distributor has achieved sales volume corresponding to the mutually prepared yearly sales plan in each year of the Agreement, the Agreement automatically rolls forward for a further three years. In each subsequent three year term, a six month termination is possible only at the end of each year, other than for reason of breach of contract, which can occur at any time by written notice, with a period to remedy as below.
10.2 Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if
10.2.1 that other party commits any breach of any of the provisions of this Agreement and in the case of a breach capable of remedy, fails to remedy the same within 30 da...
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