EXHIBIT 10.26
Pages where confidential treatment has been requested are stamped "Confidential
Treatment Requested. The redacted material has been separately filed with the
Commission." The appropriate section has been marked at the appropriate place
with a star [*].
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EXHIBIT 10.26
"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
DISTRIBUTOR AGREEMENT
This agreement is entered into this 30th day of January, 1998 by and between
Alcide Corporation, a Delaware corporation whose offices are located at 8561
154th Ave. N.E., Redmond, Washington (hereinafter "Supplier") and Universal
Marketing Services, Inc., 5545 Avenida de los Robles, Visalia, CA 93291
(hereinafter "Distributor"), and supersedes all previous agreements between the
parties.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. Definitions
As used herein, the term
1.1 "Contract Term" shall mean that period stated on Schedule A
attached hereto.
1.2 "Products" shall mean Alcide-Registered Trademark- external udder
care products including UDDERgold-Registered Trademark- Germicidal Barrier Teat
Dip, 4XLA-Registered Trademark- Pre- and Post-Milking Teat Dip and
Pre-Gold-Registered Trademark- Pre-Milking Teat Dip. Products shall include any
refinements or improvements to the existing udder care product line and any new
teat dips introduced into the Territories by Alcide Corporation during the term
of this Agreement.
1.3 "Territories" shall be as defined by the attached Schedule B.
2. Appointment of Distributor
2.1 Subject to the terms and conditions of this Agreement, Supplier
hereby appoints Distributor as exclusive distributor of the Products for the
Territories. Distributor hereby accepts said appointment and agrees to actively
promote and sell the Products.
2.2 In accepting this appointment, Distributor agrees that it and its
subsidiaries shall not, directly or indirectly, sell or distribute in the
Territories:
(a) Any other external udder care disinfectant product [*].
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"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
(b) Any product containing acidified chlorite, chlorous acid or
chlorine dioxide as its active ingredients or degradents [*].
2.3 Distributor may appoint agents, dealers or sales representatives
to act on Distributor's behalf for sales of the Products in the Territories,
provided that any compensation to such agents, dealers or representatives shall
be solely Distributor's responsibility.
2.4 Subject to the terms and conditions of this Agreement,
Distributor is authorized to sell the Products purchased from Supplier in such
manner, at such prices and upon such terms as Distributor shall determine.
Distributor is an independent contractor, not an agent or representative of
Supplier. Distributor shall not assume or create any obligation in the name of
Supplier or make any representation, warranty or guarantee on behalf of or in
the name of Supplier.
2.5 Labeling of the Products shall be determined exclusively by
Supplier.
In any of the Distributor's activities relating to the
promotion and sale of the Products, Supplier's name and trademark shall always
be prominently displayed in order to protect Supplier's rights and goodwill in
the same. Whenever Supplier's name and trademark are used in advertising and
promotional programs, Supplier retains the right to review and approve same.
Distributor will have the right to review all Product labels
prior to final approval by Supplier, and Distributor's name and trademark shall
be displayed on all labels for product delivered in the Territories.
Distributor shall reimburse Supplier for art work related to labels making
specific reference to Distributor or Sub-distributors and, upon termination of
this Agreement, Distributor shall purchase such labels from Supplier at the cost
incurred by Supplier.
2.6 All registrations, trade names, trademarks and product names
under which the Products are sold shall be the property of Supplier. In the
event any registrations (e.g., Product registrations) are taken or issued in the
name of Distributor, Distributor shall, upon request, but in no event later than
upon termination of this Agreement, transfer such registrations to Supplier or
Supplier's designee and provide any documents and assistance reasonably required
in connection therewith.
2.7 This Agreement shall not be construed as establishing a
franchise.
2.8 Supplier and Distributor each represent and warrant to the other
that it is authorized to enter into and perform this Agreement and that this
Agreement does not and shall not conflict with any other agreements it may have.
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"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
3. Terms and Conditions of Sale
3.1 All of Distributor's orders for the Products shall be subject to
the terms and conditions set forth in this Section 3 and in the attached
Schedule D which provides product pricing and discounts; no additional or
different terms set forth in Distributor's or Supplier's purchase order,
acknowledgment or other forms or correspondence (other than an amendment to this
Agreement pursuant to Section 8.1 hereof) shall govern any sales of the Products
by Supplier to Distributor.
3.2 Supplier shall be responsible for labeling, packing and shipping
all Products ordered in a form agreed upon between Supplier and Distributor as
being appropriate for the Territory and suitable for ready sale to the end user
in the Territories. All deliveries shall be [*].
3.3 Schedule A (attached) sets forth goal amounts of products to be
purchased by Distributor from Supplier during the initial year of the contract.
Ninety (90) days prior to the start of subsequent contract years, Distributor
and Supplier will meet to revise Schedule A and establish product purchase goals
for the next contract year. In the event that Distributor and Supplier cannot
agree on goal amounts the new goals will be arbitrarily set at [*].
[*]
[*]
3.4 Distributor shall make payments to Supplier for Products [*]
ordered by Supplier if product is sourced from the United States; [*] if sourced
from Europe. Invoice will not be issued by Supplier until Product is
manufactured and ready for shipment with proper notification of availability
provided to Distributor. [*].
3.5 Supplier provides the Limited Warranty as described in Schedule
C.
3.6 Prices shown in Schedule D may be revised by Supplier at any time
during the Term of this Agreement following sixty (60) days prior written notice
to Distributor from Supplier.
3.7 Supplier shall have Distributor named as an additional insured
under Supplier's Product Liability Insurance policy at all times during the term
of this Agreement.
4. Promotional Activities
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"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
4.1 Distributor shall undertake such advertising and promotional
activity relating to Products as is deemed appropriate by Distributor to
actively promote sales. Such advertising and promotional activity shall be
solely at Distributor's expense unless otherwise agreed to in writing by
Supplier. All advertising and promotional materials developed by Distributor
shall be in accordance with descriptions of Products provided by Supplier and,
to the best of Distributor's knowledge, shall be accurate in all material
respects. Upon request, Supplier shall have the right to review and approve all
advertising and promotional materials developed by Distributor. Such approval
will not be unreasonably withheld and will automatically be given if Supplier
does not respond to the request within seven (7) working days.
4.2 Distributor's marketing plans shall be provided to Supplier [*].
A list of major meetings, annual shows, seminars and training programs at which
Supplier's participation is desired shall be submitted ninety (90) days in
advance by Distributor.
4.3 A tabulation of Distributor sales by Product and Territory shall
be provided by Distributor to Supplier at the end of each fiscal quarter.
Distributor shall maintain records of sales to Sub-distributors or customers for
a period of at least two years and, upon request, provide Supplier with copies
of such records.
5. Term and Termination
5.1 This Agreement may be terminated by Supplier [*] in the event
that Distributor fails to:
(a) comply fully with Sections 3 and 4 of the Agreement;
(b) [*]
(c) [*]
5.2 Distributor's exclusive rights for any Territory may be
terminated by Supplier if Distributor fails to purchase during the contract year
at least [*]. Supplier may then, at its sole option, add additional
distributors for the Territory. If Supplier chooses to add additional
distributors in the Territory, the Distributor will be notified sixty (60) days
prior to actual start of Product sales by the additional distributors, and the
Distributor will have the right to terminate this Agreement with sixty (60) days
notice.
5.3 This Agreement may also be terminated by either party, effective
immediately upon notice to the other, in the event the party to which such
notice is sent becomes the subject of any bankruptcy or insolvency proceedings.
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5.4 In any case where a party claims the other party is in breach of
the provisions of this Agreement (other than a failure to purchase at least the
goals set forth in Schedule A), this Agreement may be terminated by either party
in the event there is a material breach of this Agreement by the other party.
The injured party shall give written notice of the breach. The party in breach
must commence curing the breach within sixty (60) days of receiving notice
thereof. If the breach is not cured within one hundred and twenty (120) days,
this Agreement shall be terminated.
5.5 The provisions of Sections 2.2, 2.6, and 7 and any accrued
obligations shall survive termination of this Agreement.
5.6 No later than one hundred and fifty (150) days prior to
expiration of this Agreement, Distributor and Supplier shall meet to discuss
their intentions regarding a new or extended agreement.
6. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington, regardless of its or any other
jurisdiction's choice of law principles. The 1980 U.N. Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement.
Distributor shall not make any claim or institute any litigation against
Supplier in connection with this Agreement or any invoice other than in the
courts of the State of Washington, U.S.A., King County, or the United States
District Court for the Western District of Washington. Distributor hereby
irrevocably consents and submits to the jurisdiction of the courts of the State
of Washington and the United States District Court for the Western District of
Washington.
7. Confidential Information
7.1 (a) Supplier and Distributor agree, with respect to any
confidential information received from the other and identified as confidential
information, that:
(i) the receiving party shall use reasonable care to
prevent disclosure of the confidential information to any third party without
the prior written consent of the disclosing party, and the degree of care taken
by the receiving party shall be at least as great as the degree of care which
the receiving party takes in protecting its own confidential information; and
(ii) receiving party shall not use confidential information
disclosed by the other party for any commercial purpose other than pursuant to
this Agreement, or publish or disclose it to third persons without the prior
written consent of the disclosing party.
(b) Neither party shall have any obligation with respect to any
information disclosed by the other party:
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(i) which is already in the possession of the receiving
party at the time of its receipt from the disclosing party;
(ii) which the receiving party lawfully receives from
another person whose disclosure thereof to the receiving party does not violate
any rights of the disclosing party; or
(iii) which is or becomes published or otherwise publicly
available through no act or omission of the receiving party.
(c) Upon expiration or termination of this Agreement,
Distributor and Supplier shall each, upon the written request of the other,
return or destroy all materials, copies thereof and extracts therefrom which
include any information designated as confidential by the other pursuant to
Section 7.1.(a). Each may, however, retain for legal archival purposes only,
one (1) copy of all such material.
(d) The provisions of this Section 7.1 shall survive termination
of this Agreement and remain in full force and effect for a period of three (3)
years as to any item of confidential information.
8. Miscellaneous
8.1 This Agreement constitutes the entire agreement between
Distributor and Supplier and may be amended only by a written document signed by
both parties hereto.
8.2 All notices, requests or other communications under this
Agreement shall be given in the English language and will be deemed properly
given if in writing and delivered in person, sent via international courier
service or by confirmed facsimile transmission to the intended recipient at the
address specified below, or to such other address as a party may specify in
writing:
If to Supplier: Alcide Corporation
Attn.: Joseph A. Sasenick
If to Distributor: Universal Marketing Services, Inc.
Attn.: Willard G. Clark
8.3 The failure by either party to enforce any term or provision of
this Agreement shall not constitute a waiver of the same.
8.4 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and one and the same document.
8.5 The rights of Distributor hereunder shall not be assigned or
transferred, either voluntarily or by operation of law, without the prior
written consent of Supplier, nor shall the
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duties of Distributor hereunder be delegated in whole or in part. Any such
assignment, transfer or delegation shall be of no force or effect. Any change
in control of Distributor shall be deemed an impermissible assignment and
entitle Supplier to terminate this Agreement. This Agreement shall be binding
upon and inure to the benefit of Supplier, its successors and assigns.
Distributor has the right to assign its obligations under this Agreement to
World-Wide Sires, Inc., to Willard G. Clark, or to any entity in which
World-Wide Sires, Inc. or Willard G. Clark has an ownership interest of 51% or
more.
8.6 If any provision of this Agreement is or becomes invalid, illegal
or unenforceable, the remaining provisions shall remain in full force and
effect, and for the invalid, illegal or unenforceable provision shall be
substituted a valid, legal and enforceable provision which shall be as similar
as possible in economic and business objectives as intended by the parties.
8.7 Distributor shall comply with all applicable laws and regulations
in performing under this Agreement and reselling Products, including the U.S.
Foreign Corrupt Practices Act.
8.8 Neither party shall be responsible for non-performance or delay
in performance arising from force majeure except the term of this Agreement
shall not be extended as a consequence thereof. Force majeure shall be deemed
to include, but not be limited to, those circumstances, if any, whereby
Distributor shall be prevented from meeting minimum purchase requirements set
forth in Schedule A as a consequence of acts and omissions of Supplier.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
ALCIDE CORPORATION
("Supplier")
By /s/ John Richards
UNIVERSAL MARKETING SERVICES,INC.
("Distributor")
By /s/ Willard G. Clark
President
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"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
SCHEDULE A
(1) Contract Term
(2) Goals
(1) The Contract Term shall be a three year period commencing January 1, 1998,
and ending December 31, 2000.
(2) Goal amounts of Product to be purchased by Distributor from Supplier for
each Territory [*] after commencement of the Contract Term are as follows:
United Kingdom [*]
Spain [*]
Republic of Ireland [*]
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SCHEDULE B
Territories
1) United Kingdom
2) Spain
3) Republic of Ireland
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SCHEDULE C
Limited Warranty
Alcide Corporation warrants to all purchasers of this Product that it has been
manufactured in accordance with U.S. regulatory requirements, is free of defects
and is as described in all labeling affixed hereto. Alcide's sole obligation
under this warranty and buyer's sole remedy for any defect or failure to meet
such requirements or labeling shall be limited to replacement without cost
(except all costs for shipping and handling which shall be Distributor's
responsibility) of any quantity of the Product sold.
THE WARRANTY PROVIDED HEREIN AND THE OBLIGATIONS AND LIABILITIES OF ALCIDE
CORPORATION HEREUNDER ARE EXCLUSIVE AND IN LIEU OF, AND BUYER HEREBY WAIVES ALL
OTHER REMEDIES, WARRANTIES, GUARANTIES OR LIABILITIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND ANY
REMEDIES OR LIABILITIES FOR LOST PROFITS OR CONSEQUENTIAL DAMAGES). BUYER
ACKNOWLEDGES THAT HE IS NOT RELYING ON THE JUDGMENT OF ALCIDE CORPORATION TO
SELECT OR FURNISH COMPONENTS OR MATERIALS SUITABLE FOR ANY PARTICULAR PURPOSE
AND THAT ALCIDE CORPORATION MAKES NO WARRANTIES OTHER THAN ON THE FACE HEREOF.
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"Confidential Treatment Requested.
The redacted material has been
separately filed with the
Commission."
SCHEDULE D
[*]
Discount levels determined [*] based on [*].
[*] Volume/Gallons
Discount Rate
[*]
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