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EXHIBIT 10.7
IMPORT AND DISTRIBUTION AGREEMENT
This agreement is made and entered into this 29th day of September 1997 by and
between the Cognac Godet Freres, 1 rue du Duc B.P., 17003 La Rochelle Cedex,
France, and R & R (Bordeaux) Imports, Inc., a FLORIDA, USA CORPORATION, with its
principal place of business at 3201 West Griffin Road, Suite # 204, Ft.
Lauderdale, Florida 33312-6900, USA Distributor).
RECITALS
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WHEREAS, GODET FRERES is engaged in the production and sale of Champagne Maxime
Godet 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 GODET
FRERES and be designated as the exclusive distributor of champagne Maxime Godet
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) GODET FRERES 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. GODET FRERES 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 GODET
FRERES 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 it 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 GODET FRERES and its products.
(c) Notwithstanding the foregoing, should DISTRIBUTOR, commencing with
the 1998 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.
2. PRODUCTS
The term "Products" as used in this Agreement shall mean Champagne
produced by GODET FRERES 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 Carribean Islands. The Territory may be
subsequently enlarged, reduced or otherwhise changed by agreement in writing of
the parties hereto.
4. SALES ACTIVITIES
DISTRIBUTOR shall conduct the sales activities cotemplated under this
agreement by purchasing Products from GODET FRERES 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 its employees to 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 GODET FRERES.
(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 1997,
DISTRIBUTOR shall make a minimum annual total purchase of 400 cases 12 bottles.
Commencing with the calendar year beginning just after receiving the label
approuval by the B.A.T.F. Year 2: 600 cases, Year 3: 800 cases. Year 4: 1000
cases.
(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.
5. LIST PRICES
(a) The prices to be paid by DISTRIBUTOR to GODET FRERES for each order
of products shall be GODET FRERES'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 and accepted by GODET FRERES prior to the effective date of such
price increase.
(b) Any and all taxes assessed to GODET FRERES by federal, state, or
local governments on sales of GODET FRERES's products to DISTRIBUTOR shall be
included on invoices rendered by GODET FRERES to DISTRIBUTOR.
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6. PLACEMENT OF ORDERS AND SHIPMENT
(a) Upon the placing of a written order for products to GODET FRERES by
DISTRIBUTOR, a binding agreement will be created whereby GODET FRERES 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) GODET FRERES 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 by GODET FRERES. Weights given
shall be estimated weights. All typographical and clerical errors shall be
subject to correction.
(d) GODET FRERES shall in no event be obligated to make any such
shipment would, at the time thereof, constitute a violation of any laws,
regulations, of United States of America or France.
(e) GODET FRERES'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 GODET FRERES's place of business or any other place designated by GODET
FRERES.
(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 ten (10)days of the
receipt of the products. Acceptance of the products 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 GODET FRERES to return such products.
7. PAYMENTS
(a) All terms of this Agreement are in French Francs.
(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 transferable letter of credit in favor of
GODET FRERES, or an assignee of GODET FRERES or an affiliate of GODET FRERES at
a bank within the United States of America acceptable to GODET FRERES; and the
conditions for payment thereunder shall be satisfied upon the delivery by GODET
FRERES of the usual shipping documents.
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8. CONFIDENTIAL INFORMATION
DISTRIBUTOR and GODET FRERES shall not use or disclose to third parties
any confidential information concerning the business, affairs, or the products
of the order 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.
10. CONSEQUENTIAL DAMAGES - INDEMNITY
(a) The parties hereto acknowledge that the ability of GODET FRERES 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 GODET FRERES 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 not limited to, lost goodwill, lost resale profits,
and lost customers of DISTRIBUTOR.
(b) DISTRIBUTOR shall indemnity GODET FRERES 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. 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 GODET FRERES.
DISTRIBUTOR shall not make quotations or write letters in the name of GODET
FRERES but in every instance shall use its own name.
12. EFFECTIVE DATE AND DURATION
(a) This agreement shall be effective for five (5) 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, no
less than three (3) months prior to the end of the initial or any renewal term
either party shall give the other written notice of nonrenewal.
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(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;
1- breaches any material provision of this agreement, and such breach is not
cured within ninety (90) days written notice thereof;
2- insolvency or bankruptcy of either party under applicable law, and/or the
appointment of a trustee or receiver for either party; or
3- any inability or prospective failure of either party to perform its
obligations hereunder.
4- Not to achieve the minimum quantity per year mentioned in the paragraph
4 (c).
13. RIGHTS AND OBLIGATIONS UPON TERMINATION
Upon expiration or termination of this agreement for any reason, all
orders received from DISTRIBUTOR but not shipped by GODET FRERES prior to the
effective date of termination shall be shipped by GODET FRERES, and DISTRIBUTOR
agrees to accept shipment of and make payment for any such orders shipped by
GODET FRERES.
14. NO ASSIGNMENT
This agreement shall not be assigned by either party, either by
operation of law or by contract, without the prior written 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 DISTRIBUTION.
15. GOVERNMENT REGULATION
(a) DISTRIBUTOR agrees to obtain at its own expense import license,
forein 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 GODET FRERES, by affidavit or other
reasonable means from time to time at GODET FRERES' request, and the reasonable
satisfaction of GODET FRERES, assurances that the appointment of DISTRIBUTOR
hereunder, its activities under this agreement, and the payment to GODET FRERES
of any monies or consideration contemplated hereunder are proper and lawful
under the law in force in the territorry 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 in a state thereof and that no part
of any monies or considerations paid hereunder shall accrue for the benefit of
any such official.
16. FORCE MAJEURE
This agreement and GODET FRERES 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 cancel all or any portion of this
agreement within a reasonable time after the causes for nonperformance or delay
have terminated.
17. 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.
18. 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 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.
19. LANGUAGE
This agreement is written in French and English in two
counterparts in each language. French and English texts shall have equal
validity and legal effect, provided however that in case of disagreement, the
English language text shall prevail.
20. 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
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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.
(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 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.
21. GOVERNING LAW
The formation, validity, execution, amendment and termination of this
agreement shall be governed by the applicable laws of the State of Florida, USA
and international legal principles and practices.
22. 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. If within thirty
(30) days following the date on which such notice is given, the 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 Paris France under the auspices of the
Arbitration Institute of the Paris 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 participate within thirty (30) days after the selection of the
first arbitrator, the relevant appointment shall be made by the President of the
Institute.
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(c) The arbitration proceedings shall be conducted in English and
French. 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
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.
23. 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.
IN WITNESS WHEREOF, and intending to be legally bound hereby, DISTRIBUTOR and
GODET FRERES have each caused this agreement to be delivered and executed by
their proper and duly authorized officers on this 29th of September 1997.
GODET FRERES Date: 9/29/97
[SIG]
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DISTRIBUTOR
- - R & R (Bordeaux) Imports, Inc. Date: 9/29/97
[SIG]
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President
[SIG]
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Managing Director