This Exclusive Vendor Agreement (the” Agreement”), is made and effective [DATE],
BETWEEN: [YOUR COMPANY NAME] (the “Company”), a corporation organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:
[YOUR COMPLETE ADDRESS]
AND: [VENDOR NAME] (the "Vendor"), an individual with his main address located at OR a corporation organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:
WHEREAS the Vendor intends to supply exclusively certain material which are used by the Company in its business on the terms and conditions set forth in this Agreement.
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
“Accessories” means the accessories described in Exhibit A attached hereto, and includes any special devices manufactured by Company and used in connection with the operation of the Goods.
Accessories may be deleted from or added to Exhibit A and their specifications and design may be changed by Company at its sole discretion at any time by mailing written notice of such changes to Vendor. Each change shall become effective [NUMBER] days following the date notice thereof is sent to Vendor.
“Affiliate means” any company controlled by, controlling, or under common control with Company. Affiliate means any person, corporation or other entity: (i) which owns, now or hereafter, directly or indirectly, twenty-five percent (25%) or more of any class of the voting stock of Company or is, now or hereafter, directly or indirectly, in effective control of Company; or (ii) twenty-five percent (25%) or more of any class of the voting stock of which Company, or a party described in paragraph (i), owns, now or hereafter, directly or indirectly, or of which Company, or a party described in paragraph (i), is, now or hereafter, directly or indirectly, in control.
“Customer” means any person who purchases or leases Products from Vendor.
“Delivery Point” means Company's facilities at [FULL ADDRESS]. Delivery point means Vendor’s facilities at [FULL ADDRESS].
“Exhibit” means an exhibit attached to this agreement.
“Goods” means those items described in Exhibit B. Goods may be deleted from or added to Exhibit B and their specifications and design may be changed by Company at its sole discretion at any time by mailing written notice of such changes to Vendor. Each change shall become effective [NUMBER] days following the date notice thereof is sent to Vendor.
“Products” means Goods, Accessories, and Spare Parts.
“Specifications” means those specifications set forth in Exhibit D.
“Territory” means the following geographic area or areas: [SPECIFY]. During the term of this Agreement, Vendor shall have the first right of refusal at its option to expand the Territory in order to supply the Products on an exclusive basis in [COUNTRIES]. Company shall give Vendor written notice and the terms under which it intends to permit supply, or the terms of any offer or request from a third party for rights to supply, any of the Products in any country not then included in the Territory. Vendor shall accept or reject such offer in writing within [NUMBER] days after receipt thereof, and, if Vendor accepts such offer, the Territory shall be appropriately expanded.
“Trademark” means any trademark, logo, service mark or other commercial designation, whether or not registered, used to represent or describe the Products of Company, as set forth in Exhibit E.
Company hereby appoints Vendor as Company's exclusive vendor of Products to the Company, and Vendor accepts that position.
Company, to the extent that it is legally Permitted to do so, (
) shall not appoint any
or agent in the Territory for the Products other than
, (ii) shall not, and shall cause any Affiliate not to, knowingly sell Products to any person other than
or a party designated by
for use or resale within the Territory (except pursuant to any agreement effective at the time this Agreement became applicable to the service so provided), and (iii) shall use its best efforts to prevent any party other than
from seeking customers for the Products in the Territory, from establishing any branch related to the
of Products in the Territory, or from maintaining any distribution depot with respect to the Products in the Territory.
Company, or any Affiliate, sells any Product which is eventually resold in the Territory (other than a sale to
or a party designated by
) and Company, or that Affiliate, had reason to know at the time of its sale of that Product that such resale was likely to occur, Company shall, immediately after the trigger sale (which shall be the resale of the Product in the territory or the sale immediately preceding the use of the Product in the Territory) is contracted, pay to the
[PERCENT] % of the price of that Product under this Agreement at the time that the trigger sale was contracted, which payment shall represent a recapture of certain advertising and capital expenditures made by
. Nothing contained in this Section shall affect any other right or remedy which
may have pursuant to this Agreement.
If Company or any Affiliate is contacted by any party inquiring about the purchase of Products in the Territory (other than Vendor or a party designated by Vendor), Company shall, or shall cause that Affiliate to, refer such party to Vendor for handling.
Relationship of Parties
is an independent contractor and is not the legal representative or agent of Company for any purpose and shall have no right or authority (except as expressly provided in this Agreement) to incur, assume or create in writing or otherwise, any warranty over any of Company's employees, all of whom are entirely under the control of Company, who shall be responsible for their acts and omissions.
shall, at its own expense, during the term of this Agreement and any extension thereof, maintain full insurance under any Workmen's Compensation Laws effective in the state or other applicable jurisdiction covering all persons employed by and working for it in connection with the performance of this Agreement, and upon request shall furnish Company with satisfactory evidence of the maintenance of such insurance.
accepts exclusive liability for all contributions and payroll taxes required under Federal Social Security Laws and State Unemployment Compensation Laws or other payments under any laws of similar character in any applicable jurisdiction as to all persons employed by and working for it.
Nothing contained in this Agreement shall be deemed to create any partnership or joint venture relationship between the parties.
Sale of Products by
Vendor agrees to exercise its best efforts to develop the largest possible market for the Products in the Territory and shall continuously offer, advertise, demonstrate and otherwise promote the sale of Products in the Territory.
The parties have consulted together and now agree that if
best efforts are used as provided in this Section, a minimum of [SPECIFY] Products ("Annual Market Potential") will be purchased and
in the Territory during the first year of this Agreement.
At the beginning of each subsequent year hereunder the parties will consult together in good faith and agree on the Annual Market Potential applicable to that year; provided, however, that if they cannot agree, the Annual Market Potential for the immediately Preceding year will apply to the current year.
Vendor agrees that it will not supply or represent any Products in the Territory which compete with the Products during the term of this Agreement or any extensions thereof.
Vendor shall be entitled, during the term of the partnership created by this Agreement and any extension thereof, to advertise and hold itself out as an authorized Vendor of the Products. At all times during the term of the partnership created by this Agreement and any extension thereof, Vendor shall use the Trademarks in all advertisements and other activities conducted by Vendor to promote the sale of the Products.
shall submit examples of all proposed advertisements and other promotional materials for the Products to Company for inspection and
shall not use any such advertisements or promotional materials without having received the prior written consent of Company to do so.
shall not, pursuant to this Agreement or otherwise, have or acquire any right, title or interest in or to Company's Trademarks.
If Company or any Affiliate now or hereafter manufactures or supplies, or proposes to manufacture or supply, any product other than the Products, Company shall immediately notify, or cause such Affiliate to notify, Vendor of that fact and of all details concerning that product. Vendor may request from Company supply rights for that product in the Territory, or any portion thereof, and if so requested, Company shall grant, or shall cause the subject Affiliate to grant, such supply rights to Vendor on terms and conditions no less favorable than those provided in this Agreement with respect to Products.
If Vendor does not obtain those supply rights or obtains them only for a portion of the Territory, and Company or an Affiliate later desires to offer those rights for the Territory or any portion thereof to another party, Company shall first, or shall cause such Affiliate to first, make that offer in writing to Vendor on terms and conditions which shall be specified fully in that offer. That offer shall contain a full description of the subject product and its operation.
Vendor may request, and Company shall promptly provide, or shall cause such Affiliate promptly to provide, further information concerning the product or the offer. If Vendor fails to accept such offer, Company or the Affiliate may then offer the product to another party for distribution in the Territory but may not offer it on terms and conditions more favorable than those offered to Vendor. If Company or the Affiliate desires to make a better offer to another party, Company shall first, or shall cause the affiliate first to, make such better offer to Vendor in accordance with the procedure set forth above.
Sales, Service and Storage Facilities
shall, at its expense, engage and maintain a sales, service and parts handling organization in the Territory, staffed with such experienced personnel as are necessary to enable
to perform its obligations under this Agreement.
shall, at its expense, maintain facilities and personnel in the Territory that will enable it promptly and satisfactorily to perform, at a reasonable price, all inspection, maintenance and other necessary servicing of Products sold by
. To assist
in the discharge of this service and maintenance function, Company shall provide service and maintenance training, without charge, to any reasonable number of
's personnel as
shall, at its expense, at all times store and maintain its inventory of Products in accordance with current, applicable instructions issued by Company from time to time.
shall, at its expense, deliver one copy of Company's current, applicable operation and maintenance manual to each Customer at the time of sale and, at that time,
shall, at its expense, fully explain and demonstrate to the customer the proper method of operating and maintaining the Products.
shall mail to Company, during the term of the
ship created by this Agreement and any extension thereof, prompt written notice of the address of each location at which products are stored, and the address of each facility established by
to sell and service the Products. Company may, through its designated agent, inspect all such locations and facilities and the operations conducted therein at any time during normal business hours.
As promptly as practicable after execution of the Agreement, Company shall transmit to Vendor information, materials, manuals and other technical documents necessary to enable Vendor to perform its obligations under this Agreement and, in particular, to carry out the warranty repairs pursuant to ARTICLE 4 of this Agreement. Throughout the term of this Agreement and any extension thereof, Company shall continue to give Vendor such technical assistance as Vendor may reasonably request. Vendor shall reimburse Company for all reasonable out-of-pocket expenses incurred by Company in providing technical assistance.
Spare Parts and Accessories
Vendor shall keep in stock an adequate supply of Spare Parts and Accessories for the servicing of Goods. No Spare Parts or Accessories not manufactured by Company shall be used in connection with the Goods unless they have been approved in writing by Company.
Written Technical data, drawings, plans and engineering in technical instructions pertaining to the Products are recognized by Vendor to be secret and confidential and to be the property of Company.
Those items shall at all times and for all purposes be held by Vendor in a confidential capacity and shall not, without the prior written consent of Company, (i) be disclosed by Vendor to any person, firm or corporation, excepting those salaried employees of Vendor who are required to utilize such items in connection with the sale, inspection, repair or servicing of Products during the term of the partnership created by this Agreement or any extension thereof, or (ii) be disclosed to any person, firm or corporation, or copied or used by Vendor, its employees or agents at any time following the expiration or termination of the partnership created by this Agreement or any extension thereof, except where such use is necessary in order to maintain or service Products still covered by the warranty provisions of ARTICLE 4 at the time of such expiration or termination. Company may require as a condition to any disclosure by Vendor pursuant to this Section that any salaried employee to whom disclosure is to be made sign a secrecy agreement, enforceable by Company, containing terms satisfactory to Company.
TERMS OF PURCHASE AND SALE OF PRODUCTS
shall purchase its requirements for the Products from Company. Such requirements shall include (
) purchasing and maintaining an inventory of Products that is sufficient to enable
to perform its obligations hereunder, and (ii) at least one (1) demonstration model of the Goods and Accessories.
Each order for Products submitted by
to Company shall be subject to the written acceptance of Company, and Company may, in its own discretion, accept or reject any order for Products without obligation or liability to
by reason of its rejection of any such request.
Company shall supply to
sufficient Products to enable
to meet the full demand for Products in the Territory.
All orders for Products transmitted by
to Company shall be deemed to be accepted by Company at the time such orders are received by Company to the extent that they are in compliance with the terms of this Agreement and Company shall perform in accordance with all accepted orders. Company shall confirm its receipt and acceptance of each order written [NUMBER] days of receipt of the order.
Purchases for Resale only. All Products purchased by
shall be purchased solely for commercial resale or lease, excepting those Products reasonably required by
for advertising and demonstration purposes.
Each order for Products issued by
to Company under this Agreement shall identify that it is an order and shall further set forth the delivery date or dates and the description and quantity of Products which are to be delivered on each of such dates. An order for Products shall not provide a delivery date less than [NUMBER] days after the date that order is delivered to Company.
The individual contracts for the sale of Products formed by
's submission of orders to Company pursuant to the terms and conditions hereof shall automatically incorporate, to the extent applicable, the terms and conditions hereof, shall be subject only to those terms and conditions (together with all terms in orders which are contemplated by this Agreement) and shall not be subject to any conflicting or additional terms included in any documents exchanged in connection therewith.
Cancellation of Orders
All cancellation of orders by Vendor shall be in writing, or if not initially in writing, shall be confirmed in writing. If Vendor cancels an order, which has been accepted by Company, Vendor shall reimburse Company for any cost incident to such order incurred by Company prior to the time it was informed of the cancellation.
The prices for Goods, and any discounts applicable thereto, are set forth in Exhibit B. The prices for Accessories, together with any discounts applicable thereto, are set forth in Exhibit A. The prices for Spare Parts, together with any discounts applicable thereto, are set forth in Exhibit C. All prices are F.O.B. the Delivery Point. If the price for any Product is not set forth on Exhibit A, B or C and Vendor nevertheless orders such a Product from Company, the parties hereby evidence their intention thereby to conclude a contract for the sale of that Product at a reasonable price to be determined by the Parties mutually negotiating in good faith.
Company reserves the right, in its sole discretion, to change prices or discounts applicable to the Products. Company shall give written notice to Vendor of any price change at least [NUMBER] days prior to the effective date thereof. The price in effect as of the date of Vendor's receipt of notice of such price change shall remain applicable to all orders received by Company prior to that effective date.
Company shall, at its expense, pack all Products in accordance with Company's standard packing procedure, which shall be suitable to permit shipment of the Products to the Territory; provided, however, that if Vendor requests a modification of those procedures, Company shall make the requested modification and Vendor shall bear any reasonable expenses incurred by Company in complying with such modified procedures which are in excess of the expenses which Company would have incurred in following its standard procedures.
Delivery: Title and Risk of Loss
All deliveries of Products sold by Company to Vendor pursuant to this Agreement shall be made F.O.B. the Delivery Point, and title to and risk of loss of Products shall pass from Company to Vendor at the Delivery Point. Vendor shall be responsible for arranging all transportation of Products, but if requested by Vendor, Company shall, at Vendor's expense, assist Vendor in making such arrangements. Vendor shall also procure insurance for the transportation of the Products, and such insurance shall be of a kind and on terms current at the port of shipment. In the event that Company is requested to assist Vendor in arranging for transportation, Vendor shall reimburse Company for all costs applicable to the Products following their delivery to Vendor, including, without limitation, insurance, transportation, loading and unloading, handling and storage. Vendor shall pay all charges, including customs duty and sales tax, incurred with respect to the Products following their Delivery to the carrier or forwarder.
Inspection and Acceptance
Promptly upon the receipt of a shipment of Products, Vendor shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged. Within [NUMBER] days of receipt of the shipment, Vendor shall notify Company in writing of any shortages, defects or damage which Vendor claims existed at the time of delivery. Within [NUMBER] days after the receipt of such notice, Company will investigate the claim of shortages, defects or damage, inform Vendor of its findings, and deliver to Vendor Products to replace any which Company determines, in its sole discretion, were in short supply, defective or damaged at the time of delivery.
Upon delivery and acceptance of Products, Company may submit to Vendor Company's invoice
for those Products. Vendor shall pay each such proper invoice within [NUMBER] days after Vendor's receipt of that invoice. Payment shall be made in [CURRENCY] to a bank account to be notified in writing by Company to Vendor.
This Agreement contains the entire understanding of the parties and there are no commitments, agreements, or understandings between the parties other than those expressly set forth herein. This agreement shall not be altered, waived, modified, or amended except in writing signed by the parties hereto and notarized.
Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by arbitration to be held in the [CITY, STATE], in accordance with the law in this jurisdiction, and judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof.
Vendor agrees not to disclose or use, except as required in Vendor's duties, at any time, any information disclosed to or acquired by Vendor during the term of this contract. Vendor agrees that all confidential information shall be deemed to be and shall be treated as a sole and exclusive property of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on [DATE].
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