IMPORTER/DISTRIBUTOR AGREEMENT
THIS AGREEMENT made this 1st day of January, 2002 by and between Liquor
Group Holdings, LLC, hereinafter referred to as the "Company", and Liquor
Group Florida, LLC, hereinafter referred to as "Importer/Distributor".
WHEREAS the Company is organized and operational under the laws of
the United States of America and is engaged as the exclusive brand
representative, owner and marketing entity for all available brands of
product hereinafter referred to as the "Product".
WHEREAS the Importer/Distributor possesses and declares that it has
the ability and proper licenses to import and distribute and promote the
sale of the Product to it's client base and it's prospective customers.
WHEREAS Company desires to grant to the Importer/Distributor a
license to sell and to promote the sale of the Product subject to the sales
territory, minimum sales, and other terms, conditions and limitations
provided in this agreement;
WHEREAS the Importer/Distributor wishes to obtain a license to sell
and promote the sale of the Product in accordance with the terms,
conditions and limitations provided in this agreement;
WHEREAS the Importer/Distributor desires to obtain from the Company
and the Company desires to grant to the Importer/Distributor, the right to
sell and promote the sale of the Product specifically in the geographical
territory of Florida, USA (minus military bases), hereinafter referred to
as the "Territory".
WHEREAS the term Export Sale shall hereinafter be referred to as
sales of the product from Company to the Importer/Distributor.
WHEREAS the word Retail shall hereinafter be referred to as sales of
the product from Importer/Distributor to liquor license holders within the
territory of this agreement.
IT IS THEREFORE MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:
ARTICLE 1.0
GRANT OF LICENSE
1.1 License. The Company hereby grants to the Importer/Distributor
the permission and nontransferable right and license to market and sell at
retail the Product in the Sales Territory described above, hereinafter
referred to as the "Sales Territory". In addition, the Company grants to
the Importer/Distributor the nontransferable right and license to use the
Product' trade name, trademark, labels, copyrights, and other advertising
media for the sole purpose of selling and the marketing the Product within
the Sales Territory. All such advertising and marketing shall be approved
by Company in writing by company prior to issue. The Company indemnifies
and holds harmless the Importer/Distributor for any claims arising out of
the approved use of the brand trademarks, labels, copyrights and other
advertising media.
1.2 Relation of the Parties. This agreement does not constitute a
partnership, joint venture or employment agreement between the Company and
the Importer/Distributor. Neither party shall represent itself or its
organization as having any relationship to the other party other than that
described in this agreement and neither party shall have or hold itself out
as having the power to make contracts in the name of or binding the other
party hereto.
1.3 Expenses. Each party shall pay and be solely liable for all
expenses incurred by it in connection with this agreement.
1.4 Taxes. Neither party shall be responsible for the collection,
withholding or payment of any taxes of the other party.
1.5 Non-Exclusive. The Distributor acknowledges and understands
that the license granted under this agreement is a non-exclusive, unless
specifically stated otherwise in this document, license to import the
Product and market and sell the Product at either wholesale and/or retail.
1.6 Sales Territory. Each Sales Territory shall have a separate
and distinct Importation/Distribution Agreement.
1.7 Subcontractors. Should the Importer/Distributor contract
distribution or any other activity or service with any other party, the
contract between those parties shall track the overriding
Importer/Distributor agreement and any subcontractors shall be bound by the
terms and conditions therein.
ARTICLE 2.0
COVENANTS OF THE COMPANY
The Company covenants as follows:
2.1 Trademark Protection. During the life of this agreement, the
Company shall maintain in full force and effect federal and international
registrations of its trade name product name and trademarks 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. Company shall hold harmless Importer/Distributor for all use
of registrations held by Company for the duration of this agreement.
2.2 Marketing. The Company shall support the Importer/Distributor
through marketing and advertising efforts. Such efforts shall be defined
solely by the Company and may change at any time without notice.
2.3 Strategy. The Company and the Importer/Distributor will strive
to optimize the exchange of information with regard to market developments
and the strategic approach of the market.
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ARTICLE 3.0
COVENANTS OF THE IMPORTER/DISTRIBUTOR
The Importer/Distributor covenants as follows:
3.1 Prepayment for First Order. Upon contract signing, the
Importer/Distributor shall make a payment in the amount of N/A
directly to Company for N/A , to be invoiced and delivered under the
delivery terms herein.
3.2 Subsequent Orders A minimum order volume of __________________
per annum (excluding the initial order) shall be required to maintain the
contract in force. If this order volume is not achieved by the conclusion
of the first year this contract shall be considered breached and the
contract canceled at the discretion of the Company.
Orders placed after the initial prepaid order shall be paid to the Company
on the following payment schedule:
_______ upon placing the order with the Company
_______ upon delivery to Freight Forwarding Service at the
distillery/warehouse.
___X___ upon receipt of goods to the Importer/Distributor's territories'
customs control (bailment terms)
3.3 Importation/Distribution network. The Importer/Distributor
shall use its best efforts to import, distribute and market and sell at
wholesale/retail the Product within the Sales Territory. To help
facilitate such efforts the Importer/Distributor shall develop and
implement an importation/distribution organization to service the
Importer/Distributor's Sales Territory.
3.4 Supply on Hand. The Importer/Distributor shall use its best
efforts to maintain an inventory of the Product at all times adequate to
satisfy for a period of 30 days of demand for the Product.
3.5 Product Shall Remain in Sales Territory. Each Sales Territory
shall have separate and distinct Import/Distribution Agreements. All
Product must remain in the original territory where imported. Product
cannot be brokered, traded or distributed in any way, even if the territory
holder has more than one territory and desires to broker, trade or
distribute within another territory controlled by that same
Importer/Distributor.
3.6 Representations. The Importer/Distributor shall not make any
oral or written representations of any kind concerning the Product
including warranties or guarantees, other than those provided by the
Company to the Importer/Distributor in writing.
3.7 Buyer Lists. The Importer/Distributor will furnish the
Company, not less than quarter annually, the name, address and contact
information of each person or company that purchases the Product from the
Importer/Distributor as well as a description of Product and volume
purchased.
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3.8 Trademarks. The Importer/Distributor acknowledges that the
Importer/ Distributor's license to use the Product' trade name, trademark,
labels, copyrights and other advertising media is solely for the purpose of
selling and marketing the Product within the Sales Territory.
Importer/Distributor agrees not to use Company trademarks in any malicious
manner. In addition, the Importer/Distributor hereby represents that upon
the termination of this agreement the Importer/Distributor's right and
license to use the Product' trade name, trademark, labels, copyrights and
other advertising media shall cease immediately and they shall be no longer
utilized by the Importer/Distributor.
3.9 Care. The Importer/Distributor will ensure that good care is
taken of the Product distributed by the Importer/Distributor including safe
and effective retail delivery and point of sale display as provided by the
Company.
3.10 Promotional materials. The Importer/Distributor will receive
from the Company the documentation, general sales and promotional material
deemed necessary by the Company for the sale of the Product in sufficient
quantities. Designs, marketing materials and printed matter not supplied
by the Company shall first be submitted to the Company for approval before
being created and distributed by Importer/Distributor.
3.11 Strategy. The Importer/Distributor and the Company will strive
to optimize the exchange of information with regard to market developments
and the strategic approach of the market.
ARTICLE 4.0
TERM
4.1 Initial Term. This agreement shall have an initial term of
two (2) years, renewable in two (2) year increments, to be mutually agreed
but ultimately at the sole discretion of the Company. The Term shall begin
on the date this agreement has been duly executed by the Company and the
Importer/Distributor and shall end on the agreement anniversary date, two
years hence, subject to the following:
4.2 Either party on ninety days (90) written notice to the other
may terminate this agreement for any reason, but without prejudice to any
rights of either party. Moneys due to either party become immediately due
upon termination notice under this agreement. Any and all orders placed or
committed to must be fulfilled regardless of cancellation.
4.3 The Company may immediately suspend this agreement under the following
conditions:
a. If the Importer/Distributor is in default of any payment due to the
Company, its vendors, brokers or assigns for a period of 30 days,
b. If the Importer/Distributor defaults in performing any of the other
terms of this agreement and continues in default for a period of 30
days after written notice thereof.
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c. If the Importer/Distributor is adjudicated bankrupt or insolvent, or
enters into a composition with its creditors.
d. If a receiver is appointed for it, or if a majority of its voting
stock is transferred.
e. If its ownership or control is in any way substantially changed.
If any of the aforementioned conditions exist, the Company may
terminate this agreement without prejudice upon giving written notice to
the Importer/Distributor at least 30 days before the time when such
termination is to take effect, and thereupon this agreement shall become
void, but without prejudice to the rights of either party to moneys due or
to become due under this agreement.
4.4 Upon the termination of this agreement for any reason, the
Importer/Distributor shall discontinue the use of the Company's trade name,
trademark, labels, copyrights, and other advertising media and shall remove
all signs and displays relating thereto; and, in the event of failure so to
do, the Company may itself remove such articles at the
Importer/Distributor's expense.
4.5 Upon the termination of this agreement for any reason, the
Company shall have the option to repurchase its Product then in the
possession of the Importer/Distributor and available for sale, at prices
originally billed to the Importer/Distributor and with deductions for
moneys due or to become due to the Company under this agreement. As to any
of the Company's Product not repurchased by the Company, the
Importer/Distributor shall have the right to dispose of them in the regular
course of its business, and for this purpose the restrictions of Section
4.3 shall be deferred until six months after the termination of this
agreement.
4.6 At any time during this agreement should either party violate
any State or Federal or international liquor law, whether convicted or
plea-bargained, either intentional or unintentional, continuation of this
agreement shall be at the sole discretion of the other party. All standard
termination clauses shall be overridden in such an instance.
ARTICLE 5.0
ASSIGNMENT
This agreement shall not be assigned by the Importer/Distributor;
however, the Importer/Distributor shall have the right to grant
sub-licenses and to utilize agents and employees to fulfill its duties and
obligations under this agreement; however, all of such persons shall be
subject to the terms of this agreement and the Importer/Distributor shall
be liable for the performance or non-performance of all such persons.
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ARTICLE 6.0
PRICE, ORDER AND DELIVERY OF GOODS
6.1 Price. The price for the Product shall be as set forth on
Exhibit A, attached hereto as amended from time to time by the Company.
The Company will notify the Importer/Distributor of any changes in the
price of the Product in writing at least 30 days prior to the effective
date of such changes.
6.2 Orders. The Importer/Distributor shall have the right to
place orders with the Company for such quantities of the Product as is
necessary to fulfill the Importer/Distributor's obligations under Article
3.0 hereof and such other quantities of the Product as the
Importer/Distributor shall deem necessary. All orders shall be placed on
the forms provided by the Company.
6.3 Delivery of Goods. The Company will use its best efforts to
supply Product to the Importer/Distributor within forty-five (45) days of
the date of receiving an order; however, the Company's failure or inability
for whatever reason to supply and deliver ordered Product to the
Importer/Distributor within forty-five (45) days from the date ordered does
not give the Importer/Distributor any right or interest in any claim
against the Company for damages of any kind whatsoever.
6.4 Time of Delivery. Delivery from the Company shall officially
occur when the Freight Forwarder receives and takes delivery of the Product
on behalf of the Importer/Distributor FOD at the Distillery or Warehouse.
6.5 Minimum Order. Please refer to Article 3.00 above.
6.6 Retail Pricing. The Importer/Distributor shall obtain
product retail pricing approval from the Company prior to implementation.
ARTICLE 7.0
MARKETING AND PROMOTIONAL SUPPORT
7.1 The Company will support the brand building/product marketing
effort the Importer/Distributor as follows:
The Company will assist the Importer/Distributor in the preparation of
their promotional and marketing plan, if so desired. The Company is to
provide advertising and marketing support at their discretion in the form
of existing television commercials, radio spots, ad slicks, mirror web
sites, promotional giveaway items or other traditional marketing materials
to the Importer/Distributor free of charge.
If additional promotional products or services are requested by the
Importer/Distributor, the incentive and promotional product supplier for
the Company shall provide promotional items and general merchandizing items
to the Importer/Distributor at a rate consistent with what is charged to
the Company for the US market.
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The Advertising Agency of Record for the Company may also assist the
Importer/Distributor in media purchasing and public relations strategy.
This service shall be free of charge, so long as the Importer/Distributor
makes all product related media placement through the Companies Advertising
Agency.
The Company shall have the unquestioned right of approval for all
television, radio, promotional activities and Product that the
Importer/Distributor chooses to produce on their own, regardless of costs
incurred or committed.
7.2 Confidentiality Agreement The Importer/Distributor agrees
to maintain confidentiality with regards to the marketing and promotional
strategy of the Company.
ARTICLE 8.0
WARRANTY AND INDEMNITY
8.1 The Company guarantees the Product and labels are in accordance
with the regulations of United States Treasury Office, Tax and Trade
Bureau.
8.2 The Company, as an Exporter/Importer of said Product, is
insured against losses resulting from defective or damaged Product
delivered to the Importer/Distributor. Defective or damaged Product must
be brought to the attention of the Company within 24 hours of receipt of
the product by the Importer/Distributor, and must be inspected by a duly
authorized representative of the company prior to credit issue or claim
reimbursement. Replacement product will be issued for damaged or defective
product in a timely manner, subject to insurance claim and approval of
such.
ARTICLE 9.0
MISCELLANEOUS
9.1 Attorney Fees. In the event any party fails to perform any
of its obligations under this agreement or in the event a dispute arises
concerning the meaning or interpretation of any provision of this
agreement, the defaulting party or parties or the party or parties not
prevailing in such dispute, as the case may be, shall pay any and all costs
and expenses incurred by the other party or parties in enforcing or
establishing its or their rights under this agreement, including, without
limitation, reasonable attorneys' fees, whether suit be brought or not, and
whether incurred in arbitration, mediation, trial or appellate proceedings.
9.2 Remedies. All rights and remedies granted in this agreement
shall be cumulative and not exclusive of all other rights and remedies
which the parties may have at law or in equity, and the parties may
exercise all or any of such rights and remedies at any one or more times
without being deemed to have waived any or all other rights and remedies
which they may have in the matter.
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9.3 Notices. Any and all notices, designations, consents, offers,
acceptances or any other communication provided for herein shall be given
in writing by certified mail which shall be addressed to each party at his
address of record, or to such other address as may be designated by the
party. Notice may be by facsimile if followed by certified mail and the
date of the facsimile shall control.
9.4 Invalid Provision. The invalidity or unenforceability of any
particular provision of this agreement shall not affect the other
provisions of this agreement, and the agreement shall be construed in all
respects as if such invalid or unenforceable provision(s) were omitted. If
one or more phrases, sentences or provisions of this agreement is
susceptible of two or more legal interpretations, at least one of which
would make the same legally enforceable, then the legal interpretation
which would render it legally enforceable shall be used in construing this
agreement.
9.5 Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.6 Modification. No alteration, change or modification of this
agreement shall be valid or binding upon any of the parties unless and
until the same shall be reduced to writing and signed by the parties hereto.
9.7 Headings. Headings contained herein are for convenience of
reference only and are not intended to define, limit or describe the scope
or intent of any provisions of this agreement.
9.8 Governing Law. The validity, construction and effect of this
agreement shall be construed and governed by the laws of the State of
Florida. The parties agree that the proper jurisdiction and venue for the
resolution or litigation of any disputes shall be in the City of
Jacksonville, Duval County, Florida.
9.9 Entire Agreement. This agreement supersedes all agreements
previously made between the parties hereto relating to its subject matter.
There are no other agreements or understandings between them and this
agreement is the entire agreement among the parties. Amendments and
exhibits to this agreement shall only be held valid when signed by both
parties hereto.
9.10 Benefit. This agreement shall not be assign-able by either
party.
9.11 Gender and Number. Whenever the context of this agreement requires,
the masculine gender includes the feminine and neuter and the singular number
includes the plural and vice versa.
THIS SPACE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto set their hand and seals on the day
and year first above written.
For Company: /s/ Gray C. Solomon,
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as Managing Member of Liquor Group Holding, LLC, Inc.
For Importer/Distributor: /s/ Gray C. Solomon ,
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as Managing Member of Liquor Group Florida, LLC.