D  i  s  t  r  i  b  u  t  i  o  n     A  g  r  e  e  m  e  n  t

 

This Distribution Agreement (this “Agreement”) is made this _____ day of ________ , 2021 by and between ADAMA Makhteshim Ltd., P.O.Box 60, Be’er Sheva 8410001, Israel and its Affiliates (“Adama”), a company organized and existing under the laws of Israel with its principal place of business located at P.O.Box 60, Be’er Sheva 8410001, Israel, and Shat Al Arab [full name], a company organized and existing under the laws of _________, at [full address] (the “Distributor”). Each of Adama and Distributor may be referred to as a “Party” and collectively as the “Parties“.

 

W  I  T  N  E  S  S  E  T  H  :

 

WHEREAS Adama is interested in appointing Distributor as an exclusive distributor for the promotion, marketing and sale of the Products, in the Territory, as those terms are defined below; and

 

WHEREAS Distributor is interested in becoming Adama’s exclusive distributor of the Products, in the Territory, pursuant to the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the foregoing and of the promises, agreements, representations, warranties, and covenants herein contained the Parties hereby agree as follows:

 

1. Definitions

As used in this Agreement the following terms shall have the following meanings:

 

“Affiliate(s)” any person or entity that directly or indirectly, through one or more intermediaries, now or hereafter, controls, is controlled by, or is under common control with a Party hereto.  For purposes of this definition, the terms “control,” “is controlled by,” and “is under common control with” mean the power to direct or cause the direction of the management and policies of a person or entity whether through the ownership of voting securities, by contract, or otherwise. For the purposes of this Agreement, Adama’s ultimate affiliate shall be Adama Ltd.;

 

“Products” means the products specified in Exhibit “A” and having the specifications annexed hereto as Exhibit “A”, as may be updated from time to time by Adama;

 

“Competing Products” Any product that is the same as, similar to, or which has the same use as those of any of the Products, or which is may be considered as a substitute for any of the Products;

 

“Effective Date” __________;

 

“Registrations” all permissions, authorizations, registrations or approvals from all regulatory authorities necessary to manufacture, use, import, export, market, distribute and sell the Products in the Territory.

 

“Registration Data” shall mean collectively, any study reports, data, assessments or evaluations relating and/or relevant to the Products, which are Adama proprietary, or which Adama deems necessary for the registration of the Products in the Territory. 

 

“Territory” United Arab Emirates;

 

“Quarter” a period of three (3) consecutive months in a Year commencing on January 1st, April 1st, July 1st, and October 1st;

 

“Year” the period of twelve (12) consecutive months commencing on the Effective Date and terminating on the day before the same day and month of the next calendar year;

 

1. Appointment

   1. Subject to the terms and conditions of this Agreement, Adama hereby appoints Distributor as an exclusive distributor of the Products in the Territory only. Distributor hereby accepts the appointment and undertakes to act faithfully and diligently as a distributor of the Products in the Territory only. For the avoidance of doubt, the Distributor may not actively distribute, promote, market, sell and/or approach third parties outside of the Territory with respect to the Products.

   2. During the Term, Distributor shall sell the Products in the Territory solely as Adama’s labeled Products.

 

1. General Terms of Distribution

   1. During the term of this Agreement Adama will sell to Distributor, and Distributor will purchase from Adama, such quantities of the Products as are ordered by Distributor for resale in the Territory pursuant to the terms and conditions hereof.

   2. Adama shall make not be required to sell or deliver to Distributor a greater quantity of the Products than it shall have available or allocated for such purposeDistributor any excess quantity of Products required, especially in case of Tenders. . If Adama shall be unable to supply the total demands upon it for the Products, it shall be entitled to devise any scheme which it shall deem fair and equitable to allocate its available supply among its customers and its own needs. Adama shall not be required to purchase Products from any third parties to enable it to deliver any order of Distributor, whether a new order or an order which has already been accepted. , nor shall it be liable for any claims or damages arising out of its inability to supply any order due to shortage of the Products and/or due to Force Majeure.

   3. Adama may, in its sole discretion, modify the formulation of the Products at any time. In such case, Adama may notify Distributor and Distributor shall sell and distribute only such modified formulation of the Products, in accordance with Adama’s instructions. All the terms and conditions of this Agreement shall apply on the modified formulation of the Products. In case of any material modification, Adama will notify Distributor thereof.

 

1. Distributor’s Representations and Covenants

 

1. Distributor hereby declares and warrants that; 

   1. It shall promote and/or sell the Products only in the Territory and not to promote directly or indirectly the sales of the Products nor to sell them in its role as Adama’s distributor outside the Territory and/or outside the scope of this Agreement. Distributor further undertakes not to promote the sales of the Products in the Territory or sell the Products in its role as Adama’s distributor to any third party that Distributor has a reason to believe intends to export, resell, or use the Products outside the Territory; 

   2. It and its Affiliates do not and will not during the Term act, directly or indirectly through any third party, as a manufacturer, supplier, agent or representative of any Competing Products, and it shall not receive any payment as a manufacturer, supplier, agent or representative of the Competing Products give Adama’s Products first priority over other products. Accordingly, Distributor will not sell and/or distribute any product which will conflict the sale and distribution of Adama’s products;

   3. It is not prohibited or limited by any agreement to which it is a party, or by any applicable law, from entering into this Agreement, and the performance of this Agreement is not likely to create any conflict with any other business or activity engaged in by It. Distributor further declares and warrants that it has the necessary resources, licenses, permissions, know-how, expertise and experience to perform all his obligations under this Agreement;

   4. It shall appoint and maintain appropriate professional personnel and adequate facilities to ensure an efficient performance of its obligations hereunder;

   5. It shall maintain adequate levels of inventory of the Products to meet the anticipated requirements of the customers in the Territory

   6. For the Term of this Agreement, It shall faithfully and diligently perform its obligations hereunder in accordance with applicable law and highest industry standards, and specifically use its best efforts to: Market, brand and promote the Products in the Territory, and make its best efforts to place orders for the Products in a sum;

   7. It shall advertise, and carry out specific promotional activities with respect to the Products in the Territory as agreed between the Parties. All promotion and advertising material content including leaflets, brochures, banners, advertisements, articles, customers communicates communication made and published by Distributor shall be pre-approved by Adama or its Affiliates, and any use of any promotion and advertising material without written approval by ADAMA or its Affiliates is the sole responsibility and legal liability of Distributor;

   8. It shall guard against and promptly inform Adama of any infringement or unauthorized use of the Marks (as defined below) and/or any patents covering the Products and/or any other Adama rights related to the Products;

   9. It will obtain and maintain relevant insurance policies to cover its obligations and/or responsibilities pursuant to this Agreement;

   10. It shall assist in coordinating and arranging visits of Adama’s representatives in the Territory., and It shall coordinate and accompany Adama’s representatives in visits to customers, field trials, agriculture institutes and governmental pesticides and regulatory departments in the Territory. These visits shall be arranged and financed by Adama;

   11. It shall submit to Adama written reports on: (a) market size, sales projections and market prices of the Products; (b) competition and market position of the Products in the Territory (d) trends and developments in the market, economy of the Territory, and changes of the law and regulations in the Territory, which are pertinent to the use and sale of the Products in the Territory; and (e) any other matter as reasonably requested by Adama.;

   12. It shall solely cover the cost of advertisement, marketing, selling, distributing, and registering the Products. 

2. For the avoidance of doubt, Distributor shall perform all its obligations under this Article ‎4, at its own cost and expense.

 

1. Forecasts, Orders, and Delivery

   1. Unless otherwise agreed by the Parties in writing, not later than September 30th of each Year during the Term of this Agreement and subject to the Agreed Forecast as defined below, Distributor shall provide Adama with a written forecast divided into quarters of its requirements of the Products and their respective delivery schedules for the following twelve (12) months. Thirty (30) days before the commencement of each Quarter, Distributor shall submit to Adama a rolling monthly forecast of its projected requirements for the Products for each of the following twelve (12) months (the “Yearly Forecast”). Each Product’s projected volumes under each Yearly Forecast during the Term shall be in accordance with the respective annual forecast set forth under Exhibit “B” attached hereto (the “Agreed Forecast“), such that the cumulative projected volumes of any Yearly Forecast shall constitute at least the volumes set forth under the Agreed Forecast, as applicable. The first quarter of each forecast shall be 100% binding upon Distributor, and Distributor undertakes to order at least 80% of the Yearly Forecast for each Product. Adama shall advise Distributor whether it expects to be able to satisfy the projected volumes within thirty (30) days after receipt of Distributor’s Yearly Forecast. If Adama expects not to be able to satisfy such projected volumes, it will indicate to Distributor to what extent it expects to satisfy them. The Parties will then review the forecasted quantities as stated above to adjust them to the supply capacity of Adama. 

   2. Unless otherwise agreed by the Parties in writing, each order from Distributor under this Agreement shall be in writing sent to Adama at least ninety (60) days prior to shipment, and shall be subject to written confirmation and acceptance by Adama. Each order shall include the required quantities of each Product at the then applicable agreed price and payment terms, and the required delivery date and location of delivery. Upon Adama’s acceptance, each order shall be binding on both Parties.

   3. Unless otherwise agreed by the Parties in writing, all orders hereunder shall be supplied and delivered CIF Dubai Port [Jebel Ali, FZE] (incoterms 2020).

1. If Distributor shall fail to order at least 80% of a Product under the Yearly Forecast, in any respective Year during the Term, Distributor’s exclusivity for such failing Product in the Territory will be automatically terminated Adama shall give Distributor chance in the next year to cover 80% of the total forecast for both years.

2. It is understood and agreed by both Parties that the first [ENTER NUMBER] days from the Effective Date shall constitute a probationary period during which period the Distributor may, in its absolute discretion, terminate this Agreement, if it experiences difficulty in fulfilling its obligations under this Agreement.

 

1. 1. Price and Payment

      1. The applicable price for each Product shall be as set forth under Exhibit “B” attached hereto, which may be amended by Adama from time to time. Prior to placement of each Order, Adama shall advise Distributor of the final Products’ price. 

      2. The Price is exclusive of all import duties and all other fees, duties, charges, taxes, VAT, and any other statutory fees which shall be added, if applicable, to the Prices charged by Adama and paid by Distributor.

      3. Unless otherwise agreed by the Parties in writing, payment for each order of Products shall be made within Ninety (90) days from bill of lading by wire transfer to the bank account designated by Adama for this purpose. The currency of payments hereunder shall be US Dollars. without derogating from any other remedy to which Adama might be entitled to under this Agreement or applicable law, unless the delay is caused by the bank due to shortfall in USD currency, ADAMA may impose a late payment at a rate equal to one percent (1%) per month on all overdue amounts that were not paid in full within thirty (30) days from the due date of each respective invoice (such interest to be calculated from the due date of each applicable invoice). 

• Tenders shall attract special prices. Accordingly, Adama undertakes to provide best rates to help Distributor win Tenders. Adama further commits to support Distributor in Tenders by providing the best and favorable terms of delivery and amounts to be supplied. 

 

1. Handling, Storage, Testing and Hazards

   1. Distributor shall not do anything, nor cause anything to be done, to alter, amend or change the physical characteristics of the Products as delivered to Distributor.  Distributor shall not repackage or re-label the Products, unless approved in advance and in writing by Adama and in accordance with Adama’s instructions with respect to such repackaging or re-labeling. Any such repackaging or re-labeling shall be at Distributor’s sole expense. In the event that the Distributor shall repackage or re-label the Product, it shall be solely responsible for the contents of such packages or labels to the extent that they differ from Adama’s packages or labels, and the Distributor shall indemnify Adama and hold it harmless from any claim or damage resulting from such changes to packaging or labeling.

   2. Distributor shall store the Products in adequate enclosed storage facilities and observe all local laws and regulations pertaining to the storage and handling of such products. Distributor shall manage inventory so as to ensure that Products are sold to customers in accordance with the “FIFO” (first-in-first-out) method.

   3. Distributor recognizes the hazards of the Products, and will take all necessary precautions and instruct employees, dealers, purchasers and users of the Products in the proper and safe methods of storage, handling and use of the Product, including in combination with other products.

   4. Distributor shall adhere strictly to any instructions provided by Adama concerning the handling and storage of the Products, although nothing herein shall be deemed to require Adama to produce such instructions.

1. 1. Warranties and Claims

      1. Adama warrants that upon delivery the specifications of each Products supplied to Distributor hereunder shall conform to the specifications of such Product as contained in the technical data sheet supplied to the Distributor by Adama.  THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND ALL SUCH OTHER WARRANTIES AND REPRESENTATIONS OF WHATEVER KIND ARE HEREBY DISCLAIMED BY ADAMA AND ITS AFFILIATES AND WAIVED BY DISTRIBUTOR.  ADAMA AND ITS AFFILIATES SHALL HAVE NO LIABILITY TO DISTRIBUTOR OR ANY OF ITS AFFILIATES FOR ANY GENERAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS ARISING OUT OF THE MANUFACTURE, IMPORTATION, USE, OFFER FOR SALE OR SALE OF THE PRODUCT.  ADAMA MAKES NO WARRANTIES OF MERCHANTABILITY, NON-INFRIGMENT OR FITNESS FOR ANY PURPOSE WITH RESPECT TO THE PRODUCTS, EXCEPT AS THIS PARAGRAPH ‎8.1 EXPRESSLY PROVIDES.

      2. Distributor’s receipt of any Products delivered under this Agreement shall constitute an unqualified acceptance and a waiver by Distributor of any and all claims with respect to the quantity and packaging of such Products, or with respect to any other matter which can be found in a reasonable inspection of the delivery, unless Distributor gives Adama a written notice of claim within thirty (30) days after receipt of the delivery. Any claim for any defect that is not capable of detection upon a reasonable inspection must be made in writing and be received by Adama promptly upon its discovery by Distributor, but in no event later than twenty- four (24) months from delivery date.  If no claim is received by Adama within the above twenty- four (24) months period, Distributor shall be deemed to have waived any claim in respect of such defects. For the purposes of this Article ‎8, “defect” or “defective” shall mean material nonconformity with the above warranty.

      3. In the event that Distributor makes a claim, it will hold such portion of the shipment in respect of which the claim is made for inspection by Adama or its representatives within a reasonable time of such claim.  Distributor will also allow Adama to take samples of the shipment for analysis.

      4. If a written claim made in accordance with section ‎8.2 is found by Adama to be justified, then it shall have the option, in Adama’s sole discretion, to (i) replace the defective Products; or (ii) remedy the defect (if possible); or (iii) refund to Distributor the purchase price paid to Adama.  Replacement of Products or refund of the purchase price shall be made by Adama against receipt of the defective Product (at Adama’s cost), which Distributor shall do its best efforts to return the defective Products to Adama.

      5. If Adama does not accept Distributor’s claim regarding claimed defective Products, the matter will be referred for the decision of an independent reputable laboratory to be appointed by the Parties. The cost of the laboratory will be borne by the party whose position will be rejected by the laboratory. If the laboratory finds that any of the Products in question is, in fact, defective, the provisions of section ‎8.4 shall apply.

• It is hereby specifically agreed by the Parties that the obligations of Adama contained in section ‎8.4 are Adama’s sole obligations, responsibilities and liabilities under the above warranty and Adama shall not be responsible or liable to Distributor or any other person for any damage or loss of whatsoever nature, other than as stated in section ‎8.4. Notwithstanding, Adama shall reimburse Distributor for all costs incurred by it as a result of legal claims made against Distributor by any third party in respect of defective Product, provided, however, that (i) such reimbursement shall only extend to costs directly resulting from such claims associated with the defective Product, and (ii) the defect is not resulted from any misuse, mishandling, mislabeling or improper storage or packaging of the Products by Distributor. In no event shall any such indemnification extend to the extent any claim, including third Party claim, demand, loss, damage, fine, penalty, liability, cost or expense is due to Distributor’s and/or its respective Affiliates’ act/omission, negligence or willful misconduct.  Notwithstanding anything to the contrary, ADAMA’s obligation to indemnify the Distributor under this Agreement, shall be limited in any given Year to the total amounts of Product purchased and paid by the Distributor in the previous Year. 

1. 1. Adama shall from time- to- time supply Distributor with scientific data on the effectiveness and safety of the Product. Adama cannot and does not, however, guarantee that it will supply all data or that data which shall be supplied is applicable to the Territory. Adama warrants the toxicology of the Product and their general safety as used in accordance with Adama’s guidelines but makes no warranty as to the safety of the Product as used in the Territory. Distributor recognizes that further tests may be needed in order to determine the effects of the Products under the conditions existing in the Territory and undertakes to carry out, as soon as possible, such tests including biological, agricultural, toxicological, tolerance and residual tests.

   2. Adama represents and warrants that it shall prioritize Distributor over any other Distributors and that Adama shall offer Distributor first priority in existing, new, upcoming, or planned Products. The Products shall only be offered to the other Distributors in the event Distributor rejects the Products. 

   3. Adama represents and warrants that it shall not assign more that three Distributors and shall not sell the Products to any entity that is not a Distributor. Adama further warrants that it shall consult Distributor when it intends to assign a Distributor. 

   4. Distributor shall indemnify and save Adama harmless against any and all loss, damage or expenses of any kind arising out of any claim made against Adama by any person which is in excess of the warranties and obligations of Adama contained in this Article ‎8.

 

1. Brand Names 

1. 1. Adama will not ship the Products, or any other products with the same or similar trademark, signature, or identification anywhere on the package, to the Territory except under the Order of the Distributor. 

• Adama undertakes to use all possible security measures to secure the Products from infringements and replicas. Such security measures include but are not limited to security hologram seals, verification QR codes, and special hard-to-copy design marks. 

1. Distributor shall distribute the Products within the Territory only under the trademarks and tradenames of Adama (the “Marks“), unless otherwise agreed by Adama in writing. Adama hereby grants Distributor the right to use the Marks during the term of the Agreement solely in connection with the distribution of the Products, in a manner to be approved in writing by Adama.

2. During the term of this Agreement, Distributor shall guard the Marks from any infringement, and shall report to Adama any infringement or unauthorized use of the Marks by others.

3. Distributor hereby acknowledges that the Marks are the sole property of Adama and Distributor has and will have no proprietary or equitable right or goodwill therein. Distributor further acknowledges that it shall not acquire any rights with respect to goodwill developed in any Territory in connection with the Products or Marks, even if Distributor’s efforts hereunder contributed to the same and Distributor hereby waives any claim with respect thereto.

1. Registration 

   1. All Registrations of the Products in the Territory shall be obtained by Distributor, under Distributor’s name and shall be the sole and exclusive property of Adama (“Registrations“). It is agreed by the Parties that the Registrations is registered under Distributor’s name strictly for administrative reasons and in trust for Adama and such registration shall not derogate in any manner from Adama’s sole and exclusive ownership of the Registrations.

The Distributor acknowledges that Adama is the ultimate Product Registration owner and shall not: 

1. substitute or replace Adama with a third party or to add another supplier/manufacturer to the Product Registrations without the prior approval of Adama; or
2. by relying on or taking benefit from the Registration Data, Confidential Information and/or Product Registrations, obtain on its own behalf or for any third party any Product Registrations which Adama deems to be the same, similar or in competition with the Products, whether in the Territory or anywhere in the world; or

use the Registration Data, Confidential Information and/or Product Registrations in any manner other than for the purpose of importation and distribution of the Products in the Territory.

1. Adama, in its discretion, shall provide to Distributor data and information in its possession required to obtain and/or maintain the Registrations. All data and information provided to Distributor pursuant to this Agreement shall remain the sole property of Adama and shall be considered as Adama Information, as defined below.

2. Adama’s data and studies shall be used by Distributor only for the benefit of Adama and its Affiliates according to the provisions of this Agreement. Distributor shall, upon Adama’s written request, obtain and acquire all governmental authorizations necessary for the import, transport, store, use and/or promote, market and sale of one or more Products, Distributor shall be responsible to obtain Registrations renewals, and shall take all necessary steps in that respect at its expense. 

3. Adama Registrations shall be used by Distributor only for selling the Products purchased from Adama or its Affiliates. Any use, in whole or in part, by the Distributor of any Adama Registrations or any data acquired upon information made available to Distributor by Adama or its Affiliates in connection with any products other than the Products, or outside the Territory, shall constitute a material breach of this Agreement.

4. If at any time the competent registration authorities will (a) require additional registration data or information other than the Adama Registration Data available to Adama or its Affiliates, or (b) introduce new registration data requirements for the maintenance of any Registration of the Products in the Territory, Adama will make its reasonable efforts to provide said registration authorities with the information relating to the Products., provided, however, that if Adama or its Affiliates do not have in their possession such information or data, the decision whether to generate such data shall be upon Adama’s sole discretion. For the avoidance of doubt, Adama or its Affiliates shall not be obligated to generate or provide any data or information for the purpose of this Article ‎10.

5. Distributor shall provide regular updates on the progress with regards to the Registrations applications including field trials and product evaluations. Distributor shall provide a copy of the Registrations certificate and use label for all products when registered.

6. Upon termination or expiration of this Agreement, the Distributor shall immediately cease and discontinue all use of any and all of the Adama Registrations and/or Registrations Data and/or any other Registrations information disclosed to it hereunder, and Distributor shall immediately inform all relevant registration authorities in the Territory that it is no longer entitled to cite and/or rely and/or use on Adama Registrations or any part thereof for the Products in the Territory. Upon Adama’s written request Distributor shall assign and transfer the Registrations to Adama or Adama’s designee and shall accordingly carry out all required formalities before the relevant public authorities and shall act diligently and reasonably to cooperate with Adama to obtain the consents to assign or transfer the Registrations to Adama or Adama’s designee or assist Adama to apply for re-issuance of the foresaid Registrations in the name of Adama or Adama’s designee if and when necessary.

7. Distributor has taken into account and considered the possibility of expiration or termination of this Agreement and acknowledges that it shall not have any right to compensation or payment arising out of or in connection with such expiration or termination and/or transfer of the registration to Adama.

8. All costs and fees including other payments payable to official and governmental bodies in connection with the above-mentioned registrations or extensions shall be paid by Distributor.

 

1. Information and Secrecy

   1. Adama may disclose to Distributor from time to time during the term of this Agreement information and material to assist Distributor in the registration, sale and use of the Products (the “Adama Information”). Distributor may also disclose from time to time during the term of this Agreement information or material that has or could have commercial value or other utility in the business of Distributor (the “Confidential Information). 

   2. All right, title and interest in the Adama Confidential Information shall remain the sole and exclusive property of Adama  its respective owner and its Affiliates. Neither the terms of this Agreement nor delivery of any of the Confidential Adama Information shall be deemed as a grant to Distributor the other Party of any rights or licenses under any patents or patent applications or to any know-how, technology or inventions of Adama  the other Party or of any Affiliate thereof. 

   3. Distributor Either Party agrees that it will not use or export the Adama Information outside of the Territory, and that it shall not use the Confidential Adama Information for purposes other than its performance of this Agreement.

   4. Distributor Either Party shall not disclose the Adama Confidential Information, or any part thereof, to anyone outside Distributor’s the Party’s organization, but shall keep the same strictly confidential for use by Distributor the Party solely in connection with Distributor’s the Party’s activities pursuant to this Agreement, until such time and to the extent that the Adama Confidential Information is published, becomes generally known in the industry, or enters the public domain, through no fault of Distributorthe Party. Distributor Either Party may, however, disclose the Adama Confidential Information as is necessary and required by governmental authorities, but only to the parties and to the extent so required and further provided that Distributor the Party notifies Adama the other Party in writing a reasonable time in advance of making such disclosure.

   5. Distributor Both Parties recognizes and agrees that monetary damages may not be a sufficient remedy for any breach of this Agreement and that Adama both Parties shall be entitled to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available hereunder, by contract, at law or in equity.

   6. The provisions of this Article 11 shall survive the expiration or early termination of this Agreement and shall remain in full force and effect for ten (10) years thereafter; provided, however, that, with respect to any trade secret, such provisions shall remain in effect for as long as the trade secret remains a trade secret under the applicable law.

 

1. Term and Termination

   1. Unless earlier terminated as provided herein, the initial term of this Agreement shall be five (5) years commencing on the Effective Date (the “Initial Term”), and thereafter this Agreement shall automatically renew every year for a period of one (1) year (the “Renewal Term”) unless either Party gives the other Party at least six (6) months written notice of cancellation prior to the expiration of the Initial Term or any applicable Renewal Term (for the purpose of this Agreement “Term” shall mean the Initial Term and the Renewal Term, if applicable).

   2. Notwithstanding paragraph ‎12.1 above, Adama may terminate this Agreement without cause upon ninety (90) days prior written notice to the Distributor. Without derogating from the foregoing, each party shall have the right to terminate this Agreement at any time upon thirty (30) days prior written notice to the other party in any of the following events: (i) winding-up, receivership, dissolution or reorganization proceedings shall be commenced with respect to the other party (provided that if such proceedings shall be rescinded within thirty (30) days of their commencement, such notice of termination shall have no effect); or (ii) the other party shall substantially cease to carry on business; or (iii) a substantial part of the other party’s assets shall be attached or levied by a court or another official agency (provided that if such attachment or levy shall be removed within thirty (30) days, such notice of termination shall have no effect); or (iv) the other party shall fail to perform or shall be in breach of any of its obligations under this Agreement and such failure or breach shall not be rectified within thirty (30) days after receiving a written notice from the other party, specifying the failure or breach and demanding its cessation.

   3. Subject to Article 5.5 of this Agreement, Distributor shall be allowed chance to terminate the Agreement within the probationary period specified in the said Article. 

 

1. Consequences of Termination

Upon expiration or termination of this Agreement for any reason the following shall apply:

1. Distributor Either Party shall immediately return to Adama the other Party the Adama Party’s Information and any other data or information it received during or in connection with this Agreement and shall make no further use of such information or the Adama Confidential Information without the written consent of Adamathe Party.

2. The Parties shall continue to observe the provisions of sections or articles ‎8, ‎9, ‎10, and ‎11 which shall remain in full force and effect, and survive the termination of all or any part of this Agreement.

3. Adama shall have the right to purchase from Distributor, at a price equal to Distributor’s cost, any inventory of the Products which is in good conditions and meets the Product’s specifications. If Adama exercises its rights under this subsection, Distributor shall immediately cease its sales activities (except for the completion of unfilled orders from Distributor’s customers).

4. Distributor hereby agrees and acknowledges that it has fully taken into account and considered the possibility of termination of this Agreement at any time pursuant to Article ‎‎13, and that upon such termination it shall not have any right or entitlement for any compensation, payment or demand of any kind arising out of or in connection with such termination, or with respect of loss of anticipated income or profit or for capital investments in its business or in the promotion of the Product in the Territory or for any other matter.  Distributor hereby agrees and acknowledges that all recognition and goodwill associated with the name of Adama, the Product and its distribution in the Territory shall be owned at all times by Adama alone and in the case of termination of this Agreement Distributor shall not be entitled to any compensation or payment for said recognition and goodwill and Distributor shall not be deemed to have created or retained any proprietary right in any of the above.

 

1. Force Majeure

   1. If any Party is unable, wholly or in part, by reason of Force Majeure to carry out any obligation under this Agreement, the obligation shall be suspended so far as it is affected by such Force Majeure during the continuance thereof, but not longer than three (3) months. The party concerned shall: (i) give the other party prompt notice of such Force Majeure with reasonably full particulars thereof and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing such obligation; and (ii) use reasonable diligence to remove such Force Majeure or its effects as quickly as possible. If a Force Majeure event continues for a period of 3 consecutive months with respect to the affected party, the other party shall have the right to terminate this Agreement upon a prior written notice. 

   2. For the purpose of this section “Force Majeure” shall mean an act of God, war (declared and undeclared), army mobilization, blockade, revolution, riot, insurrection, civil commotion, sabotage, lightning, fire, earthquake, storm, flood, pandemic, explosion, strike or other labor unrest, unavailability or inability to obtain or delay in availability of necessary materials, equipment or transport, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected.

 

1. Other Provisions

   1. Neither Party shall make an assignment of its respective rights and obligations under this Agreement without the prior written authorization of the other party, provided that Adama shall be entitled to assign or transfer any indebtedness of Distributor hereunder.

   2. No modification or waiver of any provision of this Agreement or consent to any departure here from shall in any event be effective unless the same shall be in writing and signed, in the case of a modification by both parties, and in the case of consent, by the consenting party.

   3. No failure in exercising any remedy or right hereunder shall be construed as a waiver of such remedy or right, nor shall any failure in exercising a right or remedy hereunder due to an instance of breach or default imply acquiescence of such breach or default in similar situations, whether occurring theretofore or thereafter, and which may be considered in a similar manner.

   4. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, regarding the subject matter hereof.

   5. The validity, construction, performance, termination and post-termination obligations of this Agreement shall be governed by and construed in accordance with laws of Switzerland.

   6. Any controversy, claim or dispute arising out of or in relation to this Agreement which cannot be settled amicably through good faith negotiations between the Parties shall be finally and exclusively resolved by the qualified courts of Zurich, Switzerland, to the absolute exclusion of any other court under any other jurisdiction.

   7. All notices given hereunder shall be in the English language and in writing or other permanently recorded form and may be given by fax, e-mail, or prepaid registered mail, to the addresses set forth herein, and deemed to have been received on the first business day following the date of transmission of the fax or e-mail, or after 7 days if mailed by registered mail:

 

To Adama: To Distributor:

_________________________ _________________________

_________________________ _________________________

_________________________ _________________________

Facsimile: _______________ Facsimile: ________________

E-mail: _________________ E-mail: ___________________

 

1. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

[Signature Page to Follow]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written.

 

Adama Makhteshim Ltd.                       Distributor

                                                                             [________]

____________________________ ____________________________

Name: Name

Title: Title:

Date: Date:

 

Exhibit A

 

Products and Specifications

 

Formulations	Tradename
Acetamiprid 218 + Emamectin 37 DC	Ubertop
Fluazinam 200 + Dimethomorph 200 SC	Banjo Forte

 

Exhibit B

 

Forecasts and Prices

 

Formulations	Tradename	Packaging	Price	1st  Year	2nd Year	3rd  Year	4th  Year	5th  Year	6th  Year
Acetamiprid 218 + Emamectin 37 DC	Ubertop	250ml	57$/L	1000L	4000L	5000L	6000L	6000L	7000L
Fluazinam 200 + Dimethomorph 200 SC	Banjo Forte	250ml	45$/L	1000L	4000L	5000L	6000L	6000L	7000L

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