httpDISTRIBUTION AGREEMENT

February 5, 2023

DISTRIBUTION AGREEMENT

 

This DISTRIBUTION AGREEMENT (this “Agreement”) is made this June 21, 2021, by and between GOOD SKIN LIFESTYLE LLC, DBA GOOD CLEAN WINE, of address 1460 E. Cherry St, Suite B, 65802 (the “Supplier”), and [ENTER NAME], of address [ENTER ADDRESS] (the “Distributor”). Each of Supplier and Distributor may be referred to as a “Party” and collectively as the “Parties“.

 

WHEREAS Supplier is interested in appointing Distributor as a distributor for the promotion, marketing and sale of the Product, in the Territory, as those terms are defined below; and

 

WHEREAS Distributor is interested in becoming Company’s distributor of the Product, 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:

  • 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. 

 

Product” means Good Clean Wine, which the Supplier’s sells to Distributor for promotion, marketing, and distribution;

 

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

 

Effective Date” June 21, 2021;

 

Territory”shall mean all U.S. States except Alabama, Idaho, Iowa, Maine, Michigan, Mississippi, Montana, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Utah, Vermont, Virginia, West Virginia, Wyoming, Georgia, New Jersey, Massachusetts, Tennessee, New Mexico, Connecticut;

 

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

  • Appointment


  •   Subject to the terms and conditions of this Agreement, Supplier hereby appoints Distributor as a distributor of the Product in the Territory only. Distributor hereby accepts the appointment and undertakes to act faithfully and diligently as a distributor of the Product 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 Product.


  •    During the Term, Distributor shall sell the Product in the Territory solely as Supplier’s labeled Product.


  • General Terms of Distribution


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


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


  • Distributor’s Representations and Covenants

 

Distributor hereby declares and warrants that; 

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


  •    It and its Affiliates will give Company’s Product first priority over other Product. Accordingly, Distributor will not sell and/or distribute any product which will conflict the sale and distribution of Company’s Product;


  •    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;


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


  •     It shall maintain adequate levels of inventory of the Product to meet the anticipated requirements of the customers in the Territory;


  •     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 Product in the Territory, and make its best efforts to place orders for the Product in a sum;


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


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


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


  •    It shall solely cover the cost of advertisement, marketing, selling, and distributing the Product; 


  •    It has no say in how and when Good Clean Wine is sold or transferred, nor is the distributor owed any compensation from a sale of the business; and


  •    It does no business, has no business relationships, and is not legally allowed to do business in the following states: Alabama, Idaho, Iowa, Maine, Michigan, Mississippi, Montana, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Utah, Vermont, Virginia, West Virginia, Wyoming, Georgia, New Jersey, Massachusetts, Tennessee, New Mexico, Connecticut.


  • Orders and Delivery

 

Unless otherwise agreed by the Parties in writing, each order from Distributor under this Agreement shall be in writing sent to Supplier and shall be subject to written confirmation and acceptance by Supplier. 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 Supplier’s acceptance, each order shall be binding on both Parties.

  • Product Price and Payment


  •    The applicable price for each Product shall be as expressly stated by the Supplier in writing. Supplier may change the prices from time to time. Prior to placement of each Order, Supplier shall advise Distributor of the final Product’ price. 


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


  •    Unless otherwise agreed by the Parties in writing, payment for each order of Product shall be made within thirty (30) days to the bank account designated by Supplier for this purpose. The currency of payments hereunder shall be US Dollars. Without derogating from any other remedy to which Supplier might be entitled to under this Agreement or applicable law, unless the delay is caused by any reason beyond the Distributor’s control, Supplier may impose a late payment at a rate equal to a percentage per month on all overdue amounts that were not paid in full. (Such interest to be calculated from the due date of each applicable invoice). 


  • Handling, Storage, Testing and Hazards


  •    Distributor shall not do anything, nor cause anything to be done, to alter, amend or change the physical characteristics of the Product as delivered to Distributor.  Distributor shall not repackage or re-label the Product, unless approved in advance and in writing by Supplier and in accordance with Company’s instructions with respect to such repackaging or re-labeling. The Distributor shall indemnify Supplier and hold it harmless from any claim or damage resulting from unauthorized changes to packaging or labeling.


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


  •    Distributor will take all necessary precautions and instruct employees, dealers, purchasers and users of the Product in the proper and safe methods of storage, handling and use of the Product.


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

  • Warranties and Claims


  •    Supplier warrants that upon delivery, the specifications of each Product supplied to Distributor hereunder shall conform to the specifications of such Product as contained in any data sheet supplied to the Distributor by Supplier.  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 SUPPLIER AND ITS AFFILIATES AND WAIVED BY DISTRIBUTORSUPPLIER 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, USE, OFFER FOR SALE OR SALE OF THE PRODUCT.  SUPPLIER MAKES NO WARRANTIES OF MERCHANTABILITY, NON-INFRIGMENT OR FITNESS FOR ANY PURPOSE WITH RESPECT TO THE PRODUCT, EXCEPT AS THIS PARAGRAPH EXPRESSLY PROVIDES.


  •    Distributor’s receipt of any Product 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 Product, or with respect to any other matter which can be found in a reasonable inspection of the delivery, unless Distributor gives Supplier 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 Supplier promptly upon its discovery by Distributor.  If no claim is received by Supplier within a reasonable time, Distributor shall be deemed to have waived any claim in respect of such defects. For the purposes of this Section, “defect” or “defective” shall mean material nonconformity with the above warranty.


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


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


  •    If Supplier does not accept Distributor’s claim regarding claimed defective Product, the matter will be settled through mediation.


  •    It is hereby specifically agreed by the Parties that any obligations of Supplier contained in this Section 8 are Supplier’s sole obligations, responsibilities and liabilities under the above warranty and Supplier 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 this Section 8. 


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


  • Brand Name 


  • Supplier undertakes to use all possible security measures to secure the Product from infringements and replicas. 


  •    Distributor shall distribute the Product within the Territory only under the Supplier’s brand name Good Clean Wine (trademark pending), label design, photos, or other creative assets (the “Marks“), unless otherwise agreed by Supplier in writing. Supplier hereby grants Distributor the right to use the Marks during the term of the Agreement solely in connection with the distribution of the Product, in a manner to be approved in writing by Company.


  •    If Supplier transfers ownership, the Distributor does not hold exclusive rights to sell the Good Clean Wine brand, or any other brands owned by the Supplier, in the County and territory they presently sell in.


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


  •    Distributor hereby acknowledges that the Marks are the sole property of Supplier and Distributor has and will have no proprietary or equitable right or goodwill therein. No distributor can claim ownership of the Marks or use the name or assets for marketing or sales purposes without Supplier’s written consent. Distributor further acknowledges that it shall not acquire any rights with respect to goodwill developed in any Territory in connection with the Product or Marks, even if Distributor’s efforts hereunder contributed to the same and Distributor hereby waives any claim with respect thereto.


  • Information and Secrecy


  • Supplier may disclose to Distributor from time to time during the term of this Agreement information and material that has or could have commercial value or other utility in the business of Supplier (the “Confidential Information)


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


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


  • Both Parties recognize and agree that monetary damages may not be a sufficient remedy for any breach of this Agreement and that Supplier 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.


  • The provisions of this Section 10 shall survive the termination of this Agreement; 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.


  • Term and Termination


  • We, the supplier, and you the Distributor have the freedom to terminate the relationship if we or you are not meeting goals or performing up to expected standards.


  • We can terminate the relationship if the distributor:

 

  1. Is underperforming; fails to substantially comply with reasonable sales and distribution requirements; is discriminatory; goes bankrupt; loses its license; if the distributor sells the business or transfers ownership; or if ownership of Supplier is sold or transferred.

 

  1. Receives a felony conviction; partakes in fraudulent conduct; fails to pay within fifteen (15) days of a notice of delinquency and demand for payment; and sells or transfers its business without consent.

  • Force Majeure

 

Neither Party shall be held liable for any failure to perform that is due to any cause or circumstance beyond the reasonable control of such Party, including without limitation a demand for such Product manufactured by Supplier which exceeds Supplier’s ability to supply them, earthquakes, fire, accidents, floods, storms, other Acts of God, riots, wars, rebellions, strikes, lockouts or other labor disturbances, national or international emergencies, failure to secure materials or equipment from usual sources of supply, failure of carriers to furnish transportation, government rules, regulations, acts, orders, restrictions or requirements or any other cause or circumstance beyond the reasonable control of such Party. No such inability to deliver or delay in delivery shall invalidate the remainder of this Agreement. 

  • Other Provisions


  • 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 Supplier shall be entitled to assign or transfer any indebtedness of Distributor hereunder.


  • 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.


  • 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.


  • 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.


  • The validity, construction, performance, termination and post-termination obligations of this Agreement shall be governed by and construed in accordance with laws of the State of Missouri, U.S.A.


  • 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 Mediation through a neutral third party.


  • 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 Company: 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.

 

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

Distributor

______________________________

Name:

Title:

Date:

 

Supplier

______________________________

Name:

Title:

Date:

 

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