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EXHIBIT 10.3
IMPORT AND DISTRIBUTION AGREEMENT
This Agreement is made and entered into this 13th day of December, 1996,
by and between the Cave du Vignoble Gursonnais, with its principal place of
business at 24610 Carsac de Gurson, France ("Winery") and, R&R (Bordeaux)
Imports, Inc. (or Assigns) a Florida, U.S.A. corporation, with its principal
place of business at 3201 West Griffin Road, Suite #204, Ft. Lauderdale, Florida
33312- 6900, U.S.A. ("Distributor").
RECITALS
WHEREAS, WINERY is engaged in the production and sale of wine and wishes
to expand the distribution of such product by having DISTRIBUTOR sell such
product in the territory described in Paragraph 3 hereof; and
WHEREAS, DISTRIBUTOR desires to market the wine products produced by
WINERY and the be designated as the exclusive distributor of WINERY for the
purposed of selling such products in the territory assigned to it.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged by each party, the parties hereto agree as follows:
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1. APPOINTMENT.
(a) WINERY hereby appoints DISTRIBUTOR as its exclusive
distributor for the sale and promotion of the Products described in Paragraph 2
below in the Territory described in Paragraph 3 below and agrees not to appoint
other distributors in the Territory. WINERY agrees that while this Agreement is
in effect, it will not sell Products to persons other than DISTRIBUTOR in the
Territory or to persons, other than DISTRIBUTOR, who WINERY has reason to
believe will resell the Products in the Territory.
(b) DISTRIBUTOR hereby accepts such appointment subject to the
terms and conditions of this Agreement and agrees that it shall use its best
efforts to promote demand for and sale of the Products in the Territory and that
in the sale and promotion of the Products it shall at all times carry out to the
best of its ability a merchandising policy designed to promote and maintain the
excellence of quality and to preserve the goodwill which is associated with the
name and reputation of WINERY and its products.
(c) Notwithstanding the foregoing, should DISTRIBUTOR, commencing
with the 1999 calendar year, fail to meet the minimum annual purchase
requirements set forth in Section 4 (c) of this Agreement, then DISTRIBUTOR
shall become at non-exclusive distributor of the Products.
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2. PRODUCTS.
The term "Products" as used in this Agreement shall mean any and all
WINE and CHAMPAGNE styles and any other types brewed and produced by WINERY.
WINERY shall have the right to stop producing and selling any of the Products
without incurring any obligation or liability to Distributor.
3. TERRITORY.
The term "Territory" as used in this Agreement shall mean the Continent
of North America, and the Caribbean Islands. The Territory may be subsequently
enlarged, reduced or otherwise changed by agreement in writing of the parties
hereto.
4. SALES ACTIVITIES.
DISTRIBUTOR shall conduct the sales activities contemplated under this
Agreement by purchasing Products from WINERY for resale to DISTRIBUTOR'S
customers within the Territory. DISTRIBUTOR shall conduct its sales activities
in a lawful manner consistent with the highest standards of fair trade, fair
competition, and business ethics; shall cause all of its employees to do the
same and use its best efforts to ensure that its agents will do the same; and in
addition shall be bound by the following duties and obligations:
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(a) Advertising. DISTRIBUTOR may undertake, at its own expense,
such advertising and promotional efforts as it may deem necessary to achieve a
proper recognition of the Products in the Territory. DISTRIBUTOR shall have the
right to use the names or any derivation thereof, or any other name or mark
associated with WINERY.
(b) Inventory. DISTRIBUTOR agrees to maintain at all times an
inventory of the Products sufficient to fill reasonably anticipated orders from
its customers and to deliver promptly all such orders.
(c) Minimum Purchases. During the calendar year beginning January
1, 1997, DISTRIBUTOR shall make a minimum annual total purchase of Products
having a net plant invoice value of $100,000 U.S. Commencing with the calendar
year beginning January 1, 1998, DISTRIBUTOR shall make a minimum annual total
purchase of Products having a net plant invoice value of $150,000 U.S.
Commencing with the calendar year beginning January 1, 1999, DISTRIBUTOR shall
make a minimum annual total purchase of Products having a net plant invoice
value of $400,000 U.S.
(d) Orders. DISTRIBUTOR shall in submitting orders describe the
Products in a clear and unambiguous manner and shall include precise
instructions for packaging, invoicing, and shipping.
(e) Resale Prices. DISTRIBUTOR shall distribute the Products
through all available means, including restaurant accounts, store and market
retail accounts, or otherwise, which may
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be commensurate with good development of the Territory. DISTRIBUTOR shall set
resale prices for the Products at its own discretion.
5. LIST PRICES.
(a) The prices to be paid by DISTRIBUTOR to WINERY for each order
of Products shall be WINERY'S prices in effect on the date said order for
Products from time to time on thirty (30) days' written notice to DISTRIBUTOR to
compensate for increases in its cost of manufacturing Products due to changes in
currency exchange rates or increases in energy, labor, raw materials or
transportation costs or in duties or other governmental charges, impositions or
assessments. No price increase shall effect the prices of Products sold to
DISTRIBUTOR pursuant to orders placed by DISTRIBUTOR and accepted by WINERY
prior to the effective date of such price increase.
(b) Any and all taxes assessed to WINERY by federal, state, or
local governments on sales of WINERY'S Products to DISTRIBUTOR shall be included
on invoices rendered by WINERY to DISTRIBUTOR.
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6. PLACEMENT OF ORDERS AND SHIPMENT.
(a) Upon the placing of a written order for Products to WINERY by
DISTRIBUTOR, a binding agreement will be created whereby WINERY will agree to
sell and ship, and DISTRIBUTOR will agree to purchase and pay for, the Products
ordered under the terms of this Agreement.
(b) Any terms or conditions stated in DISTRIBUTOR'S order
inconsistent with this Agreement shall be null and void.
(c) WINERY shall ship the Products to DISTRIBUTOR within a
reasonable time after receipt of any order. Shipping dates shall be approximate
and shall be computed from the date of receipt of the order by WINERY. Weights
given shall be estimated weights. All typographical and clerical errors shall be
subject to correction.
(d) WINERY shall in no event be obligated to make any such
shipment if such shipment would, at the time thereof, constitute a violation of
any laws, regulations, or policies of the Territory or of the United States of
America or France.
(e) WINERY's obligation to effect shipment of the Products shall
be fully discharged; and ownership, legal title, and all risk of loss or damage
shall pass to DISTRIBUTOR when the Products have been delivered to the carrier
at WINERY's place of business or any other place designated by WINERY.
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(f) DISTRIBUTOR shall be entitled to conduct a reasonable
investigation of the Products upon receipt thereof. All claims for defects in
the Products or shortages shall be made in writing by DISTRIBUTOR within twenty
(20) days of the receipt of the Products. Acceptance of the Products by
DISTRIBUTOR shall constitute a waiver of all claims by DISTRIBUTOR for loss or
damage due to defects or shortages in the Products, or to delay in delivery of
the Products.
(g) No Products shall be returned for credit without first
obtaining the written permission of WINERY to return such Products. In the event
WINERY does agree to accept goods and all such returned Products must be
received by WINERY in an unused condition and in condition for resale as new
merchandise.
7. PAYMENTS.
(a) All terms of this Agreement, (including but not limited to
"cost", "payments", "amounts", "value", "discounts", "price", "credits"
"set-off", "dollars" or "$") shall be calculated and constructed in terms of
currency of the United States of America.
(b) In order to secure DISTRIBUTOR's obligation to accept and
purchase any Products ordered under the terms of this
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Agreement, DISTRIBUTOR shall establish a confirmed, irrevocable and
transferrable letter of credit in favor of WINERY, or an assignee of WINERY or
an affiliate of WINERY at a bank within the United States of America acceptable
to WINERY; and the conditions for payment thereunder shall be satisfied upon the
delivery by WINERY of the usual shipping documents.
8. Confidential Information.
DISTRIBUTOR and WINERY shall not use or disclose to third parties any
confidential information concerning the business, affairs, or the products of
the other party which it may acquire in the course of its activities under this
Agreement and shall take all necessary precautions to prevent any such
disclosure by any of its employees, officers, or affiliated persons and
entities. For purposes of this Article, confidential information shall include
trade secrets and other unpatentable information.
9. Sub-Distributors.
DISTRIBUTOR shall have the right to appoint sub-distributors for the
sale and promotion of the Products in the Territory. Additionally DISTRIBUTOR
shall have the right to enter into alliances and cooperative arrangements for
the sale, promotion and distribution of the Product in the Territory.
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10. CONSEQUENTIAL DAMAGES - INDEMNITY.
(a) The parties hereto acknowledge that the ability of WINERY to
comply with the terms of this Agreement is of the utmost importance to the
business operations of DISTRIBUTOR. As a result, the parties understand that
should WINERY breach any provision of this Agreement, that is shall be liable to
DISTRIBUTOR for all damages which consequentially occur as a result of said
breach including, but hot limited to, lost goodwill, lost resale profits, and
lost customers of DISTRIBUTOR.
(b) DISTRIBUTOR shall indemnify WINERY and hold it harmless from
any claims, demands, liabilities, suits, or expenses of any kind arising out of
DISTRIBUTOR'S business, and these provisions shall survive the termination of
this Agreement.
11. PRODUCT WARRANTY.
WINERY warrants to DISTRIBUTOR that Products shall be of merchantable
quality at the time title there passes to DISTRIBUTOR in accordance with this
Agreement. WINERY at is option, shall replace any Products which fail to comply
with such warranty or shall refund the purchase price paid by DISTRIBUTOR
therefor. Further, WINERY hereby agrees to indemnify DISTRIBUTOR for any claims
for liabilities made against DISTRIBUTOR arising out of personal injuries or
death or damage to property caused by
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defective Products, unless such defect is created by DISTRIBUTOR'S handling of
the Products.
12. RELATIONSHIP BETWEEN PARTIES.
DISTRIBUTOR agrees that in all matters relating to this Agreement it is
and shall be acting as an independent contractor and shall bear all of its
expenses in connection with this Agreement. It shall not have any authority to
assume or create any obligation, express or implied, on behalf of WINERY.
DISTRIBUTOR shall not make quotations or write letters in the name of WINERY
but in every instance shall use its own name.
13. EFFECTIVE DATE AND DURATION.
(a) This Agreement shall be effective for three (3) years from
the effective date, unless sooner terminated as hereinafter provided. This
Agreement shall be automatically renewed for additional terms of ten (10) years
each, unless not less than nine (9) months prior to the end of the initial or
any renewal term either party shall give the other written notice of
non-renewal.
(b) This Agreement may be terminated prior to the expiration of
the initial term of this Agreement, or any renewals thereof, by either party if
the other party;
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(i) breaches any material provision of this Agreement, and
such breach is not cured within ninety (90) days written notice thereof;
(ii) insolvency or bankruptcy of either party under
applicable law, and/or the appointment of a trustee or receiver for either
party; or
(iii) any inability or prospective failure of either party
to perform its obligations hereunder.
14. RIGHTS AND OBLIGATIONS UPON TERMINATION.
Upon expiration or termination of this Agreement for any reason, all
orders received from DISTRIBUTOR but not shipped by WINERY prior to the
effective date of termination shall be shipped by WINERY, and DISTRIBUTOR agrees
to accept shipment of and make payment for any such orders shipped by WINERY.
15. NO ASSIGNMENT.
This Agreement shall not be assigned by either party, either by
operation of law or by contract, without the prior written consent of the other
party hereto, and any attempt to assign without such consent shall be null and
void. Nothing herein contained, however, shall prevent DISTRIBUTOR from
assigning this Agreement to any subsidiary, an affiliate, sister, or parent
corporation of DISTRIBUTOR.
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16. GOVERNMENT REGULATION.
(a) DISTRIBUTOR agrees to obtain at its own expense import
license, foreign exchange permit, or other permit or approval it may need for
the performance of its obligations under this Agreement, and in essence, to
comply at its own expense with all applicable laws, regulations, and orders of
the government(s) of the Territory, the United States or any instrumentality
thereof.
(b) DISTRIBUTOR agrees to furnish to WINERY, by affidavit or
other reasonable means from time to time at WINERY'S request, and the reasonable
satisfaction of WINERY, assurances that the appointment of DISTRIBUTOR
hereunder, its activities under this Agreement, and the payment to WINERY of any
monies or consideration contemplated hereunder ARE PROPER AND LAWFUL under the
law in force in the Territory and in the United States of America. DISTRIBUTOR
further represents that no person employed by it is an official of any
government agency or a corporation owned by the government(s) of the Territory,
the United States of America, or any State thereof and that no part of any
monies or considerations paid hereunder shall accrue for the benefit of any such
official.
17. FORCE MAJEURE.
This agreement and WINERY'S and DISTRIBUTOR'S performance hereunder are
subject to all contingencies beyond their reasonable control, including but not
limited to force majeure; strikes;
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lockouts; labor disputes; floods; civil commotion; riot; acts of God; rules;
laws; orders; restrictions; embargoes; quotas or actions of any government;
foreign or domestic or any agency or subdivision thereof; casualties; fires;
accidents; shortages of transportation facilities; detention of the Products by
custom authorities; or losses of the Products in public or private warehouses.
In any such event, the party not subject to force majeure shall have the right,
in its sole discretion and without any liability to the other party, to (a)
cancel all or any portion of this Agreement, or (b) require performance of this
Agreement within a reasonable time after the causes for nonperformance or delay
have terminated.
18. SEPARABILITY.
If any provision of this Agreement is found by any court of competent
jurisdiction to be invalid or unenforceable, the invalidity of such provision
shall not affect the other provisions of this Agreement and all provisions not
affected by such invalidity or unenforceability shall remain in full force and
effect.
19. WAIVER.
The waiver by either party hereto of a breach or default in any of the
provisions of this Agreement by the other party
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not be construed as a waiver of any succeeding breach of the same or other
provisions; nor shall any delay or omission on the part of either party to
exercise or avail itself of any right, power, or privilege that it has or may
have hereunder operate as a waiver of any breach or default by the other party.
20. LANGUAGE.
This Agreement is written in French and English in two counterparts in
each language. One copy of each language text shall be retained by each party.
French and English texts shall have equal validity and legal effect, provided
however that in case of disagreement, the English language text shall prevail.
21. NOTICES.
(a) Unless otherwise specifically provided, all notices, demands, or
requests required or permitted by this Agreement shall be in writing and in
English and sent in a letter form or by telex, facsimile (facsimile to be
accompanied by a telex notice requesting confirmation of receipt), telegraph or
cable to the address of the parties first set forth hereinabove, or to such
other address as may from time to time be designated by any party through
notification to the other party at its address as in effect from time to time.
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The dates on which notices shall be deemed to have been effectively
given shall be determined as follows:
(a) Notices given by personal delivery shall be deemed
effectively given on the date of personal delivery;
(b) Notices given in letter form shall be deemed effectively
given on the tenth day after the date mailed (as indicated by the postmark) by
registered airmail; postage prepaid, or the fourth day after delivery to an
internationally recognized courier service;
(c) Notices given by telex, telegram or cable shall be deemed
effectively given on the second business day following the date of transmissions
as indicated on the document in question; and
(d) Notices given by facsimile shall be deemed effectively given
on the first business day following the date of transmission of a telex notice
requesting confirmation of receipt as indicated on the telex in question.
Nothing contained herein shall justify or excuse failure to give oral
notice for the purpose of informing the other party thereof when notification is
appropriate, by such oral notice shall not satisfy the requirement of written
notice.
22. GOVERNING LAW.
The formation, validity, execution, amendment and termination of this
Agreement shall be governed by the applicable laws of the
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State of Florida, U.S.A. and international legal principles and practices.
23. Resolution of Disputes.
(a) Any dispute, controversy or claim arising out of or relating to this
Agreement, or the interpretation, breach, termination or validity hereof, shall
be resolved through friendly consultation. Such consultation shall begin
immediately after one party has delivered to the other party a written request
for such consultation. If within thirty (30) days following the date on which
such notice is given, the dispute cannot be resolved, one dispute shall be
submitted to arbitration upon the request of one party with notice to the other
party.
(b) Any arbitration to be conducted pursuant to the terms of this
Agreement shall be conducted in Stockholm, Sweden under the auspices of the
Arbitration Institute of the Stockholm Chamber of Commerce (the "Institute").
There shall be three arbitrators. Each party shall select one arbitrator within
thirty (30) days after giving or receiving the demand for arbitration. Such
arbitrators shall be freely selected, and the parties shall not be limited in
their selection to any prescribed list. The President of the Institute shall
select the third arbitrator. If the other party does not appoint an arbitrator
who has consented to
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participate within thirty (30) days after the selection of the first arbitrator,
the relevant appointment shall be made by the President of the Institute.
(c) The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law in effect at the time of arbitration.
However, if such rules are in conflict with the provisions of this Section 23,
including the provisions concerning the appointment of arbitrators, the
provisions of this Section 23 shall prevail.
(d) Each party shall cooperate with the other in making full disclosure
of and providing complete access to all information and documents requested by
the other party in connection with such proceeding, subject only to any
confidentiality obligations binding on such party.
(e) The award of the arbitration tribunal shall be final and binding
upon the parties, and either party, may apply to a court of competent
jurisdiction for enforcement of such award.
24. Entire Agreement; Modifications and Waivers.
This Agreement is the entire agreement of the parties with respect to
the subject matter described in this Agreement and all oral and written prior
negotiations and agreements and any conflicting prior course of dealing or trade
usage are superseded hereby. The parties hereto agree that no representations
have been
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made or relied upon, except as specifically stated in this Agreement. This
Agreement may be modified only, by a writing signed by both parties.
IN WITNESS WHEREOF, and intending to be legally bound
hereby, DISTRIBUTOR and WINERY have each caused this Agreement to be delivered
and executed by their proper and duly authorized officers on this _____ day of
December, 1996.
WINERY: Cave du Vignoble Gursonnais
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By: DATE
DISTRIBUTOR: R & R (Bordeaux) Imports, Inc.
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By: Robert K. Walker, President DATE
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