INTERNATIONAL PRODUCTION AND DISTRIBUTION AGREEMENT
Between the Undersigned:
DIALPACK GmbH, with
office at Germany, 87600 Kaufbeuren, Bergstrasse 2
hereinafter referred to as "DIALPACK"
and
LOOK MODELS INTERNATIONAL, INC.
with corporate offices at Passauer Platz 1, 1010 Wien, Austria
hereinafter referred to as "DISTRIBUTOR"
WHEREAS;
1. DIALPACK represents that it owns the patent and has the ability to license
the exclusive worldwide rights for
o a patented dispenser which helps the consumer to self-adjust the sun
protection factor,
o the brand VARIOSUN.
This product line includes on this present date PRODUCTS laid down in
attachment I of this agreement.
2. DIALPACK is a company legally established in 2001 under the laws of
Germany and holds the mandatory government permits.
3. DISTRIBUTOR is a company legally established in 2000 under the laws of
the state of Delaware in the country of the United States of America.
4. DISTRIBUTOR wishes to obtain the various exclusive and non-exclusive
rights to distribute and market the products herein concerned.
THE FOLLOWING IS AGREED:
1 Definitions:
1.1 PRODUCT: the products as in attachment I.
1.2 INFORMATION: any scientific technical marketing & sales
information in the possession of DIALPACK and needed by
DISTRIBUTOR for the promotion and sale of the PRODUCT.
1.3 AFFILIATED COMPANY: any organisation controlled (direct or
indirect ownership of more than 50%) by DIALPACK or DISTRIBUTOR.
1.4 EXCLUSIVE: only DISTRIBUTOR has the right to promote, sell or
distribute the PRODUCT.
1.5 MODEL-TYPE LABELS: any and all non-exclusive clients that sell
brand or tradename products that use the name model, connote, or
refer to models, including but not limited to the Sea Change
Group, New York.
1.6 NON-EXCLUSIVE COUNTRIES: North America, South America, the
Caribbean, the Pacific Rim, Australia, Middle East and Africa.
1.7 TERRITORIES: those countries listed in Attachment II hereto. The
parties contemplate the following rights: worldwide exclusive
rights for Catwalk/Look and MODEL-TYPE LABELS, the exclusive
distribution rights in all the TERRITORIES (attachment II), and
non-exclusive rights for non MODEL-TYPE LABELS in NON-EXCLUSIVE
COUNTRIES .
2 Assignments and Exclusivity:
2.1 DIALPACK represents that the mutual agreements contained herein
are is subject to the following conditions :
o reliability of its the dispensing system,
o as to sun creams, reliability of its SPF-factors, if
contents are ordered from DIALPACK (proven and confirmed by
tests of assigned Institutes).
2.2 DIALPACK grants the DISTRIBUTOR and the DISTRIBUTOR accepts from
DIALPACK, under the terms and conditions as stated in this
Agreement the following rights:
o the exclusive right to promote and distribute the PRODUCT in
the TERRITORIES. In the event a company within a TERRITORY
contacts DIALPACK to purchase or to gain rights to PRODUCTS,
DIALPACK shall refer the client to DISTRIBUTOR and
DISTRIBUTOR shall act as DIALPACK'S representative in the
transaction, subject to the terms of this Agreement.
o the world-wide exclusive right to promote and distribute the
PRODUCT under the Catwalk, Look and other model-type labels.
Any company seeking to purchase or to gain rights to its
DIALPACK products under the name Catwalk, Look and other
MODEL-TYPE LABELS, including but not limited to products
distributed in the NON-EXCLUSIVE COUNTRIES, shall deal with
DISTRIBUTOR as its exclusive distributor. In the event a
company, which sells products under a MODEL-TYPE LABEL,
contacts DIALPACK to purchase or gain rights to its
PRODUCTS, DISTRIBUTOR shall act as DIALPACK'S exclusive
representative in the transaction, subject to the terms of
this transaction.
o The non-exlusive right to promote and distribute PRODUCTS
not using catwalk/look or a MODEL-TYPE LABELS in the United
States of America;
o the right to receive and utilize any information needed for
the promotion of the PRODUCT according to the current
legislation.
The DISTRIBUTOR is not be allowed to promote, sell or distribute the product
(except under the catwalk/look/model-type labels or in the non-exclusive
countries) actively outside the TERRITORY, except for promotions, sales and
distributions for which DIALPACK has given its written approval..
3 Exchange of information, obligation to cooperate and suggested adjustments
3.1 DIALPACK will provide DISTRIBUTOR with all the information the
Distributor deems is needed for the promotion and the sale of the
product.
3.2 DIALPACK and DISTRIBUTOR will notify each other promptly of any
abnormal or unexpected reactions caused by the product or any incident
concerning the quality of the product.
3.3 DISTRIBUTOR can suggest changes or adjustments to be made by DIALPACK
to the product, whenever commercial surveys or legislation would
require such changes or adjustments. DIALPACK commits itself to make
these changes or adjustments.
4 Confidentiality :
4.1 The DISTRIBUTOR, except as may otherwise be mutually agreed upon in
writing during the period of this agreement, and for a period of three
(3) years from the date of the termination of this Agreement, shall
not, without prior written consent of DIALPACK:
(a) hold trade secrets and proprietary information not in the public
domain (the "information") in confidence, exercising a degree of
care not less than the care used by the DISTRIBUTOR to protect
its own proprietary or confidential information that it does not
wish to disclose, which in no event shall be less than reasonable
care,
(b) restrict disclosure of the information solely to those directors,
officers, employees and/or agents/consultants with a need to know
and not disclose it to any other person and then only upon
written approval of DIALPACK,
(c) advise those persons to whom the information was disclosed of
their obligations assumed herein, and
(d) use the information only for the purpose of the performance of
this agreement.
4.2 The obligations of the DISTRIBUTOR shall not apply to any information:
(a) which was independently developed by the DISTRIBUTOR or lawfully
received free of restrictions from another source having the
right so to furnish such information; or
(b) after it has become generally available to the public without
breach of this agreement by the DISTRIBUTOR; or
(c) which at the time of disclosure to the DISTRIBUTOR was known to
the DISTRIBUTOR free of restrictions as evidenced by
documentation in the DISTRIBUTOR's possession, or
(d) which is disclosed pursuant to the requirement of a governmental
agency or any law requiring thereof, provided that the
DISTRIBUTOR provides DIALPACK with prior written notice of any
such disclosure within a reasonable time so as to allow DIALPACK
to take measures to prevent the disclosure of said information.
4.3 DIALPACK, except as may otherwise be mutually agreed upon in writing
during the period of this agreement, and for a period of three (3)
years from the date of the termination of this Agreement, shall,
without prior written consent of the DISTRIBUTOR:
(a) hold trade secrets, accounts, client records and proprietary
information not in the public domain (the "information") in
confidence, exercising a degree of care not less than the care
used by DIALPACK to protect its own proprietary or confidential
information that it does not wish to disclose, which in no event
shall be less than reasonable care,
(b) restrict disclosure of the information solely to those directors,
officers, employees and/or agents/consultants with a need to know
and not disclose it to any other person and then only upon
written approval of the DISTRIBUTOR,
(c) advise those persons to whom the information was disclosed of
their obligations assumed herein, and
(d) use the information only for the purpose of the performance of
this agreement.
4.4 The obligations of DIALPACK shall not apply to any information:
(a) which was independently developed by DIALPACK or lawfully
received free of restrictions from another source having the
right so to furnish such information; or
(b) after it has become generally available to the public without
breach of this agreement by DIALPACK; or
(c) which at the time of disclosure to DIALPACK was known to the
DISTRIBUTOR free of restrictions as evidenced by documentation in
DIALPACK's possession, or
(d) which is disclosed pursuant to the requirement of a governmental
agency or any law requiring thereof, provided that DIALPACK
provides the DISTRIBUTOR with prior written notice of any such
disclosure within a reasonable time so as to allow the
DISTRIBUTOR to take measures to prevent the disclosure of said
information.
5 Launching, promotion and minimum purchase
5.1 DISTRIBUTOR shall at all times promote and distribute the product in
accordance to the regulations of the applicable health authorisation
and shall endeavour that the promotion and distribution will be in
compliance with the legislation at all times.
5.2 DISTRIBUTOR will be responsible for the marketing of the product
within the territory. All expenses in relation to such marketing of
the product in the territory will be at the cost of DISTRIBUTOR.
5.3 DIALPACK will deliver the product "ex works".
5.4 Costs of new development and new tools for adapted and for new
products will be discussed in good faith and on a most-favoured nation
basis..
5.5 DISTRIBUTOR will do the reasonably necessary work to market the sale
of the product in the territory.
5.6 The Parties will exchange that information on a monthly basis
necessary to indicate (i) their compliance with this Agreement,
including but not limited to provisions regarding the exclusive and
territorial nature of the rights granted hereunder and (ii) the
DISTRIBUTOR'S good faith endeavors to promote and distribute the
PRODUCT
5.7 Forecasts shall be given to DIALPACK as soon as possible, but at least
two months prior to the start of each contract year.
5.8 The Parties agree that the DISTRIBUTOR shall be given most-favoured
nation pricing meaning that DIALPACK shall charge DISTRIBUTOR at or
below the lowest prices it charges to its other distributors.
6 Supply:
6.1 DIALPACK holds all mandatory government permits for the production of
this product.
6.2 The product will be manufactured by DIALPACK or by a company
designated by DIALPACK for that purpose. Both, DIALPACK and the
designated company will meet the standards of current legislation
concerning the manufacturing and the distribution of the product.
7 Terms of supply
7.1 DISTRIBUTOR will make good faith efforts to ensure that the product is
supplied to the end user on an "ex works Germany "INCOTERMS 1990"
basis.
7.2 DISTRIBUTOR shall notify DIALPACK of all payment arrangements it
negotiates with customers and shall forward DIALPACK copies of any and
all contracts, letter of credit or guarantees. Upon receipt of any
funds from end-users DISTRIBUTOR will promptly pay DIALPACK its
pro-rata portion thereof until full payment has been made.
7.3 DIALPACK will use its reasonable best efforts to deliver the products
within the reasonable quantities at the time specified in the
DISTRIBUTOR'S purchase order. Delivery will take place no later than
the attached list of lead times (Add.III) after purchase order has
been received and the specification of labels and text has been
approved by DISTRIBUTOR but will use best efforts to deliver sooner if
possible.
7.4 DISTRIBUTOR will use reasonable efforts to promptly check delivered
products for faults and completeness and will notify DIALPACK of any
noticeable defect if discovered. Claims for guarantees are only
possible within 6 month after delivery.
7.5 DISTRIBUTOR acknowledges that DIALPACK will print the brand "DIALPACK"
Web-address and the Patent Number on the back-side label of PRODUCT in
a typesize no larger than is legally necessary to maintain DIALPACK'S
intellectual property rights in the PRODUCT.
7.6 Prices for 2001/2002 are binding prices from DIALPACK to DISTRIBUTOR,
depending on minimums.
7.7 Dialjpack will start with production of ordered goods as soon as
DISTRIBUTOR guarantees payment by document or cash in advance.
8 CATWALK MARKETING RIGHTS:
8.1 In consideration of entering this Agreement, DIALPACK grants
distributor the worldwide rights to distribute the PRODUCTS under the
Catwalk/Look and MODEL-TYPE LABEL. This right shall survive the
termination of this agreement.
8.2 Line extension: DIALPACK shall take responsibility for the
manufacturing and development of the products' future line extensions
and will inform DISTRIBUTOR of such developments by registered letter.
DIALPACK grants the DISTRIBUTOR exclusive rights to all line
extensions and improvements to the PRODUCT and the first right to
distribute the new products not related to or derived from the
PRODUCTS (the "new product") as mentioned in 2.2. DISTRIBUTOR will
inform DIALPACK of its interest to distribute the new product by
registered letter within two months after the receipt of the
registered letter from DIALPACK. If DISTRIBUTOR expresses no interest
in distributing the new product, DIALPACK will be allowed to
distribute it through other distribution channels, unless the existing
business would be harmed by such arrangement.
9 Duration:
This Agreement will have effect on the day it is signed and will remain in
force for a period of five (5) years for Catwalk products. Three (3) years for
the "right of first refusal". The Agreement will be automatically extended for
successive periods of one (1) year, unless DISTRIBUTOR or DIALPACK terminates
the Agreement, giving 3 months notice before the end of each annual period by
registered letter.
10 Termination
10.1 DISTRIBUTOR has the right to terminate this Agreement at any time if :
o DIALPACK is declared bankrupt, in suspension of payments,
liquidation or dissolution.
o DIALPACK distributes directly a similar product into the
DISTRIBUTOR's market
10.2 DIALPACK has the right to terminate this Agreement at any time if :
o DISTRIBUTOR is declared bankrupt, in suspension of payments,
liquidation or dissolution.
o DISTRIBUTOR fails to market and/or promote the product in the
territory and does not take on the said activity within a period
of 60 days after the request of DIALPACK to continue the said
activity.
o DISTRIBUTOR fails to obtain, without due cause, the agreed
minimum quantities as laid down in art. 5.5 of this Agreement
o DISTRIBUTOR actively promotes, sells or distributes the product
outside the territory
11 Liability
11.1 DIALPACK shall indemnify and hold harmless DISTRIBUTOR and its
affiliated companies, customers of DISTRIBUTOR, their officers,
directors and employees from and against any and all claims, losses,
damages, judgements, costs, awards, expenses (including reasonable
attorneys' fees) and liabilities of every kind (collectively,
"Losses") arising directly out of or resulting directly from any
breach by DIALPACK of any of its warranties, guarantees,
representations, obligations or convenants contained herein and shall
be answerable to third parties for any damage, loss, complaint, action
or detriment caused by the product as a result of defective
manufacturing DIALPACK will meet the costs of any criminal or civil
action resulting from these claims at his own expense.
11.2 DISTRIBUTOR shall be answerable to third parties for any damage, loss,
complaint, action or detriment caused by the product as a result of
grossly negligent of purposeful misrepresentation of the PRODUCT.
DISTRIBUTOR will meet the costs of any criminal or civil action
resulting from these claims at its own expense.
12 Right of First Refusal
12.1 In the event that DIALPACK receives an offer to sell or determines to
sell the PRODUCT, the PATENTS underlying the PRODUCT, and/or the
shares or assets of DIALPACK, then it shall immediately notify
DISTRIBUTOR in writing of the occurrence of this event. DISTRIBUTOR
shall have the right to purchase the PRODUCT, the PANTENT underlying
the PRODUCT and/or the shares or assets of DIALPACK at the same price
and terms as has been offered to DIALPACK. DISTRIBUTOR shall notify
DIALPACK of its intention to exercise this right of first refusal
within 30 days of such offer. In the event that DISTRIBUTOR refuses
the purchase and DIALPACK changes the price or terms in any way, it
shall immediately re-offer the right of purchase to DISTRIBUTOR in
accordance to the aforementioned terms.
13 Miscellaneous
13.1 Modifications to this Agreement and additional or different provisions
are only valid if they have been accepted in writing by both parties.
13.2 Notifications and communications within the framework of this
Agreement shall be made by registered letter to the address as
mentioned in this Agreement. Parties will report immediately any
change of address.
13.3 This Agreement contains the Agreement between DIALPACK and DISTRIBUTOR
and will replace any other verbal or written Agreement relating to the
above mentioned matter.
13.4 The nullity of a provision of this Agreement shall not have the result
that the Agreement as a whole is void. In the place of the zero or
invalid provisions a suitable regulation shall apply which
approximates as closely as possible the intention of the parties and
the economic result aimed for by the parties in a legally effective
way.
13.5 The failure by a party to take any action in case of default relating
to any provision of this Agreement by the other party or the allowing
or toleration of a deviation from any provision of this Agreement
shall not be considered to be a relinquishment of right.
13.6 Parties are not allowed to transfer rights included in this Agreement
to third parties without written approval from the other party.
13.7 The English language of this Agreement shall be the only authentic
text.
14 Force majeure :
14.1 Neither of the parties shall be held responsible for non-performance
of its obligations in the event that this non-performance is a result
of force major.
14.2 Force majeure shall be understood to mean any circumstance outside the
will and control of the parties, whether or not foreseeable at the
time of entering into the Agreement, as a result of which the
fulfilment can not reasonably be demanded from that party, such as
war, government measures, fire and other disruptions to the business,
import or export bans, lack of raw materials, factory or transport
disruption, strikes, lock out, quarantine, civil disturbance, extreme
weather conditions...
14.3 In case of temporary force majeure the mutual obligations will be
suspended until the hindrance is eliminated.
14.4 When force majeure persistently prevents fulfilment and lasts for more
than 90 days, the Agreement shall end by right. Parties shall not have
right to fulfilment, compensation or/and postponement.
14.5 If either of the parties would find itself in a situation of force
majeure, it will immediately notify the other party.
15 Applicable law
This Agreement is governed by laws of Germany in force of signature
thereof.
Thus prepared in duplicate and signed at..........................
on the.............................
Dietmar Rock Wolfgang Schwarz
For DIALPACK For DISTRIBUTOR
END OF CONTRACT
Attachement to International Distribution Agreement
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ATTACHEMENT I to the International Distribution Agreement
PRODUCT DESCRIPTION:
Product as defined in the agreement is: A dispenser with two accomodation
compartments that have bottoms that support and reduce the volume of the
accomodation compartment. The accomodation compartment contain a liquid medium
of varied makeup and use ("filler"), for two different components of the medium
to be dispensed, a mixing means connected to each outlet opening, a manually
adjustable adjustment means by means of which the ratio of the components of the
medium supplied to the mixing means can be adjusted, a dispenser nozzle for the
medium to be dispensed by the dispenser which nozzle is connected to the mixing
means, wherein the outlet openings are each connected to a discharge pump having
a plunger, the outlets of which open into a common mixing line leading to the
dispenser nozzle, and discharge pumps pivotally retained at guide rails
supported at the container as pivotal operating levers for the plungers of the
pumps.
A product may consist of only the dispenser or the cartridge or the filler as
the case may be.