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EXHIBIT 10.6
IMPORT AND DISTRIBUTION AGREEMENT
This Agreement is made and entered into this 16th day of April, 1997, by and
between the VIGNERONS DE BUZET - B.P. 17 F 47160 BUZET SUR BAISE, "WINERY"
and, R & R (BORDEAUX) IMPORTS, Inc.,
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 wines assigned in the limited
list of wines described in the section 2 and the DISTRIBUTOR is designated as a
exclusive DISTRIBUTOR of WINERY for this list described in section 2 for the
purposed of selling such product in the territory assigned to it, see section 3.
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.
WINERY agrees that while this Agreement is in effect, it will not sell the
mentioned products in the section 2 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 2000 calendar year, fail to meet the minimum annual purchase requirements
set forth in Section 4 (c) of this Agreement, then DISTRIBUTOR shall become a
non-exclusive distributor of the Products.
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2. PRODUCTS.
The terms "Products" as used in this Agreement shall mean the following wine
list :
o AC BUZET WHITE SPECIAL SEAFOOD N/V
o AC BUZET RED GOLD HERALDRY
o AC BUZET RED RENAISSANCE
o AC BUZET WHITE RENAISSANCE
o AC BUZET ROSE RENAISSANCE
o AC BUZET RED L'EXCELLENCE
o AC BUZET WHITE L'EXCELLENCE
o AC BUZET ROSE L'EXCELLENCE
o AC BUZET RED INSTANT NATURE
WINERY shall have the right to stop selling any of the over-mentioned Products
without incurring any obligation or liability to Distributor.
3. TERRITORY.
The term "Territory" as used in this Agreement shall mean the United States of
America (excluding the State of New York), 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 selected in section 2 from WINERY for resale to
DISTRIBUTOR'S customers within the Territory assigned in section 3. 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 assigned in section 3. DISTRIBUTOR
shall have the right to use the names or any derivation thereof, or any other
name or mark associated with brands assigned by WINERY, see section 2.
(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
an ex-cellar free of charges invoice value of 275,000 FF. Commencing with the
calendar year beginning January 1, 1998, DISTRIBUTOR shall make a minimum annual
total purchase of Products having an ex-cellar free of charges invoice value of
825,000 FF. Commencing with the calendar year beginning January 1, 1999, and
January 1, 2000 and the following years, DISTRIBUTOR shall make a minimum annual
total purchase of Products having an ex-cellar free of charges invoice value of
2 200 000 FF.
(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 be commensurate with good development of the
Territory. DISTRIBUTOR shall set resale prices for the products at its own
discretion.
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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 increase 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 places by DISTRIBUTOR and accepted by WINERY
prior to the effective date of such price increase.
(b) The WINERY'S prices are ex-cellar, free of charges, in FF, per
bottle and will be invoiced only under these conditions.
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 DISTRIBUTORS order inconsistent
with this Agreement shall be null and void.
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(c) WINERY shall ship the products to DISTRIBUTOR within a reasonable
time after receipt of any order, a minimum time of 3 weeks is asked for the
preparation of the goods and this, after receipt of the order. Shipping dates
shall be approximated 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) All risk of loss or damage shall pass to DISTRIBUTOR when the
Products have been collected by the WINERY'S place of business or any other
place designated by WINERY. DISTRIBUTOR agrees to take possession in its
responsibility ex-cellar.
(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.
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(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, a minimum of two percent (2%) of the invoice price plus
any other expenses WINERY may have incurred in packing, shipping,
transportation, or otherwise shall be returned at the expense of DISTRIBUTOR,
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",
"F.F.", shall be calculated and constructed in terms of currency of France.
(b) In order to secure DISTRIBUTOR's obligation to accept and purchase
any Products ordered under the terms of this Agreement, DISTRIBUTOR shall
establish a confirmed, irrevocable and transferrable letter of credit in favor
of WINERY, transferred in a bank accepted by the WINERY, or with a pre-payment
through SWIFT Transfer with 2% discount, delivery of goods after creditation of
the WINERY'S account.
8. CONFIDENTIAL INFORMATION.
DISTRIBUTOR and WINERY shall not use of 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.
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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.
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 the provision of exclusivity of the wine list mentioned in section
2, that is shall be liable to DISTRIBUTOR for all damages which consequentially
occur as a result of said breach including, but not 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 as
per samples previously delivered and accepted by DISTRIBUTOR 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 defective products, unless such defect is created by
DISTRIBUTOR's handling of the Products.
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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 ten (10) years from the
effective date, unless sooner terminated as hereinafter provided. This agreement
shall be automatically renewed for additional terms of five (5) 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 ;
(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.
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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 order party hereto, and
any attempt to assign with out 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.
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
governments 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 for
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.
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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 consideration 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; 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, 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 provision is not
affected by such invalidity or unenforceability shall remain in full force and
effect.
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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 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 on 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.
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 French 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.
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;
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(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 transmission,
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 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.
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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 Geneva Switzerland under the auspices of the
International Chamber of Commerce in Paris.
(c) The arbitration proceedings shall be conducted in English and
French.
(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.
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 made or relied upon, except as specifically stated in this Agreement.
This Agreement may be modified only by a writing signed by both parties.
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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 16th day of April,
1997.
WINERY: DATE
LES VIGNERONS DE BUZET 16/04/1997
B.P. 17
47160 BUZET SUR BAISE (FRANCE)
/s/ JEAN-MICHEL RENAUD
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Mr Jean-Michel RENAUD,
Managing Director.
DISTRIBUTOR: DATE
4/16/97
R&R (BORDEAUX) IMPORTS Inc.
/s/ ROBERT K. WALKER
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By Robert K. Walker,
Managing Director
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