EXHIBIT 10.4
Liquor Group Brokerage Agreement
THIS AGREEMENT ("Agreement") is made as of the signature date by and
between the Vendor as listed on the signature page below (hereinafter referred
to as "Vendor"), and Liquor Group (hereinafter referred to as "Broker")
exclusively for the Products specified in Exhibit A attached hereto (hereinafter
referred to as "Products') in the Territory specified in Exhibit A attached
hereto (hereinafter referred to as the "Territory").
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WHEREAS, The Vendor is authorized to sell the Products of alcoholic
beverages listed in Exhibit A (hereinafter referred to as the "Products") in the
Territory;
WHEREAS, Vendor desires to appoint Broker as its exclusive Licensed Broker
with respect to the Products upon the terms and conditions set forth in this
Agreement; and
WHEREAS, Broker desires to accept such appointment upon such terms and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree it as follows:
1. Appointment. The Vendor hereby appoints Broker as its exclusive licensed
sales Broker representative organization with respect to the products
offered by the Vendor in the Territory as specified in Exhibit A. Vendor
acknowledges and agrees that Broker will have all of the rights and
privileges afforded it under the terms and conditions of this Agreement.
Broker herby accepts such appointment and agrees to act as such sales
broker.
2. Duties. Broker shall diligently promote the sales of the Products listed in
Exhibit A by calling upon retail outlets and on-premise licenses, providing
displays and point of sale materials where permitted by regulation,
conducting programs as requested by Vendor from time to time at Vendor's
expense and otherwise promoting the distribution of the Vendor's products.
The Vendor will supply all promotional materials. Broker shall maintain an
office and personnel adequate to carry out the terms of this Agreement.
Broker will not do anything detrimental to the Vendor's interest or which
may adversely affect the goodwill of our business or the goodwill of the
Products for which Broker is acting pursuant to this agreement.
3. Relationship of Parties. It is understood that Broker is acting for the
Vendor strictly as an independent sales broker, and nothing herein shall be
deemed to constitute a partnership between the parties or to be deemed to
constitute Broker as the agent for the Vendor for any other purpose beyond
that required for the performance of this agreement and shall have no power
of authority to bind or contract in the name of, or otherwise create a
liability against the Vendor.
4. Relationship with Authorized Distribution Agents. The financial/clerical
relationships with the Territory's contracted Authorized Distribution
Agent(s) (ADAs) shall be the sole responsibility of the Vendor, formal
interaction with the ADA's by the Broker on Vendor's behalf shall not be
permitted without prior approval by Vendor. However, Broker shall, in its'
normal course of business be in contact with ADAs to obtain reports,
inventory stock status and other information as is required.
Liquor Group Brokerage Agreement
5. Products Covered. The Agreement shall cover, and Broker's duties shall be
applicable, to all products and sizes for the Vendor and its subsidiaries
listed on Exhibit A attached hereto, which may from time to time, be
amended.
6. Compensation. The Vendor shall pay the Broker, and Broker shall accept as
full compensation for services under this Agreement a monthly commission
basis on the commission rates as set forth in the commission rates attached
hereto as Exhibit A.
7. Bonus Commission. Broker may earn a "bonus" commission on every case
depleted for that year if the depletion number reaches or exceeds the set
case and/of profit goal established and agreed to by the Vendor. Such bonus
shall be discussed and agreed in writing by and between the Broker and the
Vendor.
8. Program Incentives. Program incentives from the Vendor are an essential
component of a successful marketing and promotional strategy in this
market. A program incentive budget shall be prepared and mutually agreed by
the parties as shown in Exhibit B attached hereto. Vendor is responsible
for funding of product promotions and programs prior to their
implementation and commencement. Once the budget is agreed Vendor shall
deposit the monthly anticipated expenditure in advance to the Broker
promotion and program account. This account to be replenished monthly
against specific documentation of utilization provided by Broker. Broker
will not continue any promotion or program without receipt of funding,
unless otherwise mutually agreed.
9. Merchandising Grants. The Vendor may from time to time, and at its sole
option, confirmed to the Broker by separate letter, grant monies for
Broker's use in promotion of the Vendor's Products represented by this
Agreement. Broker agrees to abide by the terms and conditions set forth in
the individual grant letter or letter and nothing herein shall be construed
as a guarantee or promise that the Vendor will provide such a grant.
10. Deliverable goods. Vendor is responsible to provide to the territory such
merchantable goods in sufficient quantities as requested by the Broker.
Vendor shall provide such products in conformity with the samples presented
to Broker at or prior to the time of this agreement. Vendor bears all cost
to bring such goods to market and is responsible in all manners of law for
the deliverables. Broker understands that Vendor may from time to time
alter the appearance, formulation, configuration and/or packaging of such
goods and as so far as these altered goods maintain the level of quality
and merchantability Broker agrees to put forth its best efforts to continue
to sell the goods.
11. Broker's Projections. Broker will assist Vendor in determining the proper
level of merchandisable products to be maintained in the territory. Broker
may prepare from time to time projections on anticipated sales to
facilitate determining proper merchandise levels. These projections are
intended for informational purposes only. Due to the vague nature inherent
in all consumable goods projections, Broker shall not be liable for any
aspects of projections submitted to vendor.
12. Term. This agreement shall be effective as of the date of signature, and
shall be in effect until terminated by mutual agreement. The Initial Term
of the agreement shall be shall be two (2) years, renewable in ongoing two
(2) year increments, provided each party performs obligations specified
herein. The Term shall begin on the date this agreement has been duly
executed by the Vendor and the agreement shall be automatically renewed on
its' anniversary date, two years hence.
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Liquor Group Brokerage Agreement
13. Performance Criteria. During the initial year of this agreement, a baseline
of historical sales per product will be established for each brand. Broker
warrants that it will equal or exceed one hundred and ten percent (110%) of
the baseline established for the subsequent calendar year and shall
increase such results by no less than 5% per annum thereafter; provided the
macroeconomic condition of the market remains stable at or above similar
levels as the baseline historical period.
14. Trademark Protection. During the life of this agreement, Vendor shall
maintain in full force and effect Federal and International registrations
of its trade name, product name and trademarks for the products; and shall
at its own expense and discretion exercise its common law and statutory
rights against any infringements of its trade name, trademark, labels, and
copyrights. Vendor shall authorize and hold Broker harmless for all
promotional use of registrations of said products for the duration of this
agreement.
15. Termination. This agreement may be terminated at the discretion of either
party only for breach of agreement for cause, including failure to
accomplish criteria as outlined in Exhibit A. Either party must provide
notice of such cause in writing to the other party, and allow 30 days for
such cause to be remedied by the other party prior to submittal written of
request for termination. Such request must be made in writing to the other
party, and should cause for termination be deemed sufficient by mutual
agreement, said termination shall be effective Sixty (60) days from the
date of the termination acceptance. Should it be determined that failure to
accomplish the performance criteria is due to the activities, or lack
thereof, of the broker, and such cause is not remedied by the Broker under
the 30 day redemption period, then a Sixty (60) day termination shall be
granted to Vendor without the requirement of mutual agreement.
16. Reports by Broker. Broker will periodically provide Vendor with such
reports as Vendor may reasonably request, including, but not limited to
monthly and or quarterly reports of sales of the Products. The style and
frequency of reports to be determined at the commencement of this agreement
and any subsequent alterations shall be requested in writing and to be
mutually agreed.
17. Compliance of Law. Broker agrees at all times during the term of this
Agreement to comply with all applicable federal, state and local laws and
regulations applicable to its performance hereunder.
18. Code of Practices. Broker adheres strictly to the DISCUS Code of
Responsible Practices for Beverage Alcohol Advertising and Marketing and
will not condone, participate in nor permit any activity not in accordance
with the guidelines contained therein. Broker reserves the right to decline
to participate in, or prohibit any promotional activity within in its
Territory that it deems in its sole discretion to be outside of its own
guidelines. More information on DISCUS guidelines can be found at:
www.Discus.org
19. Confidentiality Agreement. Broker agrees to maintain confidentiality with
regards to the internal marketing and promotional strategy of the Vendor.
Any materials marked confidential and disclosed as such to Broker shall be
handled with the sensitivity and care of general business and professional
standards.
20. Assignment. Except to the extent otherwise provided by law, this Agreement
may not be assigned nor the obligations imposed by it delegated, in whole
or part, without the prior written consent of the other party.
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Liquor Group Brokerage Agreement
21. Scope of Agreement. This Agreement constitutes the entire agreement between
Vendor and Broker and supersedes all prior agreements and understandings.
Only an instrument in writing signed by both parties may modify it.
22. Liability of Agent. Neither Broker nor any of its officers, directors,
employees, agents or affiliates shall be liable to Vendor for any action
taken or omitted to be taken by it or them under this Agreement or in
connection herewith, except for its gross negligence or willful misconduct.
23. Non-Waver. Failure by either party to exercise promptly any option or right
herein granted to it or to require strict performance of any obligation
herein imposed on the other shall not be deemed to be a wavier of such
rights.
24. Governing Law. This Agreement operates to the fullest extent permissible by
law. If any provision of this Agreement is unlawful, void or unenforceable,
that provision is deemed severable from this Agreement and does not affect
the validity and enforceability of any remaining provisions. This Agreement
is governed by, and construed in accordance with, the laws of the Territory
without giving effect to any principles of conflicts of law. Broker and
Vendor agree to submit to the exclusive jurisdiction of the courts of the
Territory for resolution of any dispute, action or proceeding arising in
connection with this Agreement and further irrevocably waive any right you
may have to trial by jury in any such dispute, action or proceeding. Broker
and Vendor hereby agree to first utilize a Board Certified Arbitrator at
mutual cost to settle any and all disputes regarding this agreement.
25. Notices. Any notice required or permitted to be given under this Agreement
by one of the parties to the other shall be deemed to have been
sufficiently given for all purposes if mailed by registered or certified
mail.
26. Territory. The territory contemplated herein through this agreement is:
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IN WITNESS WHEREOF, this Agreement has been duly executed by an authorized
officer of the parties hereto as of the date written below:
VENDOR: LIQUOR GROUP
By: ______________________________ By: ______________________________________
Printed Name: ____________________ Printed Name: ____________________________
Title: ___________________________ Title: ___________________________________
Date: ____________________________ Date: ____________________________________
Vendor Contact Info:
Address: _________________________ Email: ___________________________________
City, State, ZIP: ________________ Phone: ___________________________________
Alternate Contact: _______________ Fax: ____________________________________
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Liquor Group Brokerage Agreement
Exhibit A
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Product Name: FOD/
% Product Case Case Commission Case Quota
Alcohol Size: Code: Pack: LGH: Per-Case: Per-Annum:
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Product Code required for all Products listed, if you do not have a Product code
for a specified product, mark that column with an X. If you need more space for
additional Products just duplicate this page and fill in as needed.
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Liquor Group Brokerage Agreement
Exhibit B
VENDOR / BRAND MARKETING NOTES:
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PROMOTIONAL SUPPORT
The Supplier agrees to support the Product through the following means per annum
of this agreement:
Support type: % of cost paid by Supplier: Quantity Available:
Product Demonstrations: __________% #: ______________
Product for Product Demonstrations:__________% #: ______________
Sales Samples: __________% #: ______________
T-Shirts / Apparel: __________% #: ______________
Stickers: __________% #: ______________
Giveaway Trinkets: __________% #: ______________
Advertising/Media: __________% $: ______________
Sales Rep Training: __________% #: ______________
Sales Rep Rewards: __________% #/$: _____________
Other: _________________________ __________% #/$: _____________
Supplier hereby agrees to provide Point of Sale (POS) materials with every
shipment of Product. Should sufficient POS materials not be provided, materials
will be generated by Broker and charged back to Vendor at cost plus 10%.