THIS AGREEMENT is effective the day the application is approved BY AND BETWEEN:
Applicant, (hereinafter referred to as “Owner” and Haispot, LLC, a company incorporated under the laws of United States of America and having its head office at 1700 Northside Dr, Suite A7, Unit #5235 Atlanta, GA: (hereinafter referred to as “DISTRIBUTOR” or “RESELLER”)
WHEREAS: OWNER is the manufacturer of the Product (as hereinafter defined);
Owner has determined that to enhance the development of the market and increase the sales of its Product in the Territory, it would be advantageous to co-ordinate its distribution activities with a distributor in the Territory who possesses a readily available and extensive sales network in the Territory; and
Haispot wishes to enter into this Agreement with Owner whereby Haispot will undertake the distribution and sale of Product in the Territory on the terms and subject to the conditions contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual promises and covenants herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) the parties hereby agree as follows:
Whenever used in this Agreement, the following terms shall have the following meanings respectively, unless otherwise specified:
“Affiliate” of a party means any Person which directly or indirectly controls, is controlled by, or is under common control with, such party; as used herein, the term “control” or “controls” means possession of the power to direct, or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, law or otherwise, and the term “controlled” shall have the meaning correlative to the foregoing.
“Agreement” means this distribution agreement, the recitals set forth in the preamble herein, and all schedules attached hereto, as well as all amendments, additions, restatements or modifications made hereto and thereto and all other documents incorporated herein or therein by reference, all of which are hereby made an integral part of and will be read as if included within the text of this distribution agreement;
“Business Day” means each of Monday, Tuesday, Wednesday, Thursday and Friday, except when any such day occurs on a statutory holiday observed in the Territory;
“Confidential Information” means any and all information, documentation or knowledge in any form, relating to the business and assets of OWNER, not generally known to the public, disclosed to, or which may be obtained directly or indirectly by, the Haispot, or which may be derived in any way by it as a consequence of the performance of its obligations hereunder, including, without limitation, information relating to OWNER’s present and contemplated products and services; product designs; inventions, improvements; standards, specifications, systems, methods and operating procedures; techniques and modes of manufacturing, compounding or preparing products, formulations and recipes; merchandising, marketing plans and strategies; tests and reports; profits, costs, pricing, product sourcing and sales policies and strategies; buying habits and preferences of present customers of OWNER as well as prospective and potential customers, their names and addresses; trade secrets, know-how, data, research and development; patent, trade-mark, copyright, industrial design and all other intellectual property and proprietary rights and shall also include terms of this Agreement;
“Effective Date” means day application is approved by Haispot;
“Latent Defect” means a defect in any Product which was caused by OWNER in the manufacturing process or in the design or packaging of the Product, which renders it not useable in the ordinary course of the business of DISTRIBUTOR or not fit for its intended purpose and that is not identifiable by a basic examination of such Product;
“Minimum Annual Performance Requirements” means those minimum annual performance targets required to be satisfied by the Haispot as set out more specifically in Schedule “B” attached hereto;
“Person” means any person, individual, firm, association, syndicate, partnership, joint venture, trustee, trust, corporation, division of a corporation, unincorporated organization or other entity or a government agency or political subdivision thereof;
“Prime” means, at any time, the rate of interest per annum equal to the rate which the principal office of the Bank of Nova Scotia in the city of Toronto, Ontario, Canada, quotes, publishes and refers to as its “prime rate” and which is its reference rate of interest for loans in Canadian dollars made in Canada to Canadian borrowers, adjusted automatically with each quote or published change in such rate, all without the necessity of any notice to a party hereto;
“Product” means the finished goods products manufactured and sold by OWNER as set forth more specifically in Schedule “A” attached hereto as the same may be supplemented by OWNER, in its sole discretion, from time to time;
“Term” means the term of this Agreement as set forth in Article III comprising the Initial Term and any Renewal Term;
“Territory” means the country of l; and
“Trade-marks” means all the trade-marks and trade names, whether or not registered, which are owned and used by or under license from OWNER and which appear on the Product including without limitation, the trade-marks “l”.
The following schedules are incorporated into this Agreement by reference and form an integral part hereof:
OWNER hereby grants to Haispotand Haispot hereby accepts from OWNER the [non-]exclusive right to distribute the Product in the Territory, upon and subject to all terms and conditions set forth in this Agreement. Haispotcovenants and agrees to purchase the Product for its own account from OWNER and to market, distribute and sell such Product . Nothing in this Agreement shall restrict OWNER from selling Product to any other Person [inside or] outside the Territory.
Haispot shall inform OWNER in writing of, and OWNER shall have the right to approve or disapprove, any sub-distributor(s) proposed to be appointed by Haispotin respect to the sale and distribution of Product in the Territory, provided, however, that the appointment of any such sub-distributor(s) by Haispot, following approval by OWNER, shall not relieve Haispot of any of its obligations hereunder.
Haispot covenants and agrees that all enquiries with respect to and any orders for Product received, directly or indirectly, by Haispot from outside the Territory shall be referred to OWNER.
The initial term of this Agreement shall come into effect on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall continue in full force and effect until either party terminates the agreement
PURCHASE ORDERS AND SUPPLY OF THE PRODUCT
During the Term, Haispotshall primarily purchase all of its requirements of Product from OWNER
Haispot shall place a firm written order with OWNER on Haispot’s [standard] purchase order forms for the quantity of Product to be purchased. Only such orders placed by Haispot and accepted by OWNER shall be binding on the parties hereto. Where there is a conflict between the terms and conditions stated in such [standard] purchase order form and the provisions of this Agreement, the provisions of this Agreement shall prevail despite any statement to the contrary in such [standard] purchase order form or otherwise. For the purposes of clarity, notwithstanding anything herein to the contrary, the terms and conditions of this Agreement will govern all Product sold by OWNER to Haispot.
The risk of loss and damage to Product shall pass to Haispot immediately upon Product being picked up by or on behalf of Haispot, its agent or transport carrier, at OWNER’s warehouse in l, and thereafter OWNER shall not be responsible for any loss or damage to the Product. Haispot will be the importer of record into the Territory for all Product purchased by it and will be responsible for the accuracy of the information presented and the payment of all duties and taxes, and will be liable for any fines or penalties resulting from any missing or inaccurate information
Haispot shall anticipate its future requirements for Product and shall purchase and keep sufficient stock of Product on hand and shall maintain adequately trained and experienced sales staff as well as appropriate premises and warehouse facilities and equipment (including vehicles) for stocking and sales of the Product in order to meet the Territory market demand.
During each year of the Term, whether during the Initial Term or any Renewal Term, Haispot covenants and agrees to purchase from OWNER, for distribution within the Territory, not less than the minimum quantities of Product required in order to meet the Minimum Annual Performance Requirements. In the event that Haispot shall purchase more than the prescribed Minimum Annual Performance Requirement for a particular year, the excess shall not be credited towards the Minimum Annual Performance Requirement in any subsequent year. In the event Haispot does not achieve the requisite Minimum Annual Performance Requirement for any year during the Term or any Renewal Term, as the case may be, then OWNER may terminate this Agreement at any time thereafter upon sixty (60) days’ notice to Haispot.
PRODUCT PRICING AND PAYMENT
Subject to and in accordance with the terms and conditions hereof, OWNER agrees to sell to Haispot, and Haispot agrees to buy from OWNER, the Product at the prices agreed to between Haispot and Owner, or prices of the Product are in U.S. dollars, F.O.B. OWNER’s warehouse. All charges that may be incurred in connection with the delivery of the Product to Haispot, including, without limitation, in respect to freight, export duties, import duties, all applicable taxes, appropriate insurance and storage costs or any other payments required to process the products from OWNER’s warehouse are can be the responsibility of Haispot or Owner.
Payment options can be discussed between the owner and a representative of Haispot
OWNER shall have the right, in its sole discretion, to increase its prices listed unilaterally, it being understood that any such increases shall only be effective upon ninety (90) days’ written notice to Haispot, whereupon at the end of such ninety (90) day notice period, any such revised price shall be effective immediately without further notice and shall be deemed to form part of the price list set forth in Schedule “A” attached hereto as if the same had initially been set forth therein.
QUALITY AND CHANGES IN PRODUCT
OWNER guarantees that the quality of Product supplied under this Agreement shall meet, at the time of delivery to Haispot, which for greater certainty is the time when Product is picked up by Haispot, its agent or transport carrier at OWNER’s warehouse, the same quality and standards as Product sold to OWNER’s customers. Thereafter, Haispot shall be responsible for any diminishment in the quality of the Product in its possession, whether caused by improper transport or storage of such Product or for any other reason whatsoever.
Haispot shall, promptly following receipt of the Product, examine such Product and satisfy itself that it meets its requirements. To be valid, any claim in respect to short-shipment or for defective Product (other than with respect to Latent Defects) must be made in writing or email by Haispot to OWNER within fourteen (14) days (“Investigation Period”) of the date such Product arrived at Haispot’s warehouse, and such short-shipment or defect must not have been caused while the Product was in transport from OWNER’s warehouse to Haispot’s warehouse or while in storage by or on behalf of Haispot. If Haispot has not notified OWNER that it has rejected any Product as defective by the end of the Investigation Period, then it shall be deemed to have accepted the Product (“Accepted Product”). If OWNER agrees with Haispot that any rejected Product is defective, OWNER will replace such defective Product with replacement Product free of defect and this replacement Product shall constitute the sole and exclusive liability of OWNER in respect to defective Product.
OWNER may make modifications to Product at any time or discontinue the sale of, or limit its production of, any Product without thereby incurring any liability whatsoever to Haispot with respect to any order placed by Haispot. OWNER will endeavour to give Haispot sixty (60) days’ prior notice in the event of any such discontinuance.
Packaging and warehousing responsibilities
Haispot shall provide OWNER with all necessary information pertaining to packaging and packaging labelling with respect to the local requirements in each jurisdiction within the Territory.
Haispot will use its best efforts to ensure that warehousing and transportation to and within the Territory are effected in such a manner so as not to have a negative effect on the quality of the Product. The physical flow of Product from the warehouse shall be based on a first-in, first-out system.
Without limiting the generality of the foregoing, Haispotundertakes to perform, at its sole expense, the following services and activities in connection with and for the benefit of maintaining Product:
suitable warehousing with appropriate climate control as per OWNER requirements as they may be revised by OWNER, in its sole discretion, from time to time; and
stacking the Product so as not to exceed OWNER’s prescribed standards with respect thereto.
Haispot shall assume full responsibility for and shall indemnify and save OWNER harmless from any damage, claim, liability, loss or expense (including any legal costs) which OWNER may suffer or incur by reason of Haispot’s packaging, stocking, warehousing, storage, use, sale and/or distribution of the Product.
It is acknowledged by both parties hereto that the import and distribution of Product in the Territory may be dependent upon prior registration of such Product with the appropriate local government authority in the Territory. Haispot shall investigate and so advise OWNER in this regard and, should Product registration or other market authorization be required to import and sell Product in the Territory, Haispot acknowledges and agrees that it shall be responsible for securing the registration of the Product or other market authorization, as the case may be, for, and on behalf of, and in the name of, OWNER.
In furtherance of the foregoing,Haispot agrees to use its best efforts to arrange for and complete the registration of the Product in OWNER’s name in a timely manner, which in any event must occur within one hundred and eighty (180) days of the Effective Date of this Agreement, or within one hundred and eighty (180) days of the effective date of any amendment to the list of Product in Schedule “A” attached hereto, in the case of additional finished goods products being added thereto, and Haispotshall pay all costs relating to such registration of Product, in accordance with all applicable laws, rules and regulations of the Territory and shall indemnify and save harmless OWNER in respect to the same. Haispot shall keep OWNER informed in writing of the progress of any required application for registration, and any proposed submissions relating to such Product registration must be forwarded to OWNER for its approval prior to being submitted to the appropriate government authority. Thereafter, upon registration of the Product, Haispotwill inform OWNER and provide copies and official government receipts in respect thereto. Upon receiving the official registration documents and the receipts evidencing payment in full for such registration by Haispot, in OWNER’s name, OWNER will reimburse Haispot for the cost of such Product registration. Haispot agrees that it will be responsible for the cost of any Product registration that is submitted without the prior approval of OWNER.
OWNER shall retain title to all Product registrations and Trade-marks.
To the extent that Product registration has been effected in the name of Haispot, Haispot will co-operate fully in the transfer of such registrations to OWNER or any Person designated by
SALES AND MARKETING OF THE PRODUCT
Haispot will resell all Product purchased hereunder in compliance with all applicable laws in the Territory and only in the packaging supplied or approved by OWNER. Haispot is responsible for marketing and promotional activities in the Territory and for compliance with all applicable laws and regulations, including, without limitation, laws and regulations regarding health and safety, nutritional medicinal products, marketing practices, etc. Haispot represents and warrants that it has obtained all permits, licenses, registrations and other approvals required by every national, local or municipal government or agency, in respect of the performance of Haispot’s obligations under this Agreement.
Haispot shall use its best efforts, at its own expense, to market, promote and sell the Product in the Territory and shall use the same channels and methods and exercise the same diligence, including making regular and sufficient contact with present and prospective customers of Product in the Territory, which Haispot uses in marketing its other non-competing products. All advertising by Haispot in any medium shall be conducted in a dignified manner that will reflect favorably upon the goodwill and reputation of OWNER.
The determination of sales and marketing strategies and Haispot’s selling prices for the Product within the Territory shall be the responsibility of Haispot,
ADDITIONAL OBLIGATIONS OF DISTRIBUTOR
During the currency of this Agreement, in addition to any other obligations set forth herein, DISTRIBUTOR shall:
use its best efforts in the performance of its obligations under this Agreement, including without limitation, in respect to the active solicitation of orders in the Territory for the purchase of Product;
commit and adhere to the highest standards of operation, including those standards that may be prescribed by OWNER from time to time;
provide to OWNER ongoing market evaluations for Product and use its best efforts to develop and enhance the OWNER name and brand image in order to increase market awareness and sales of such Product within the Territory;
supply OWNER with records of all contacts made with present and prospective customers in the Territory, including the nature of such contacts;
comply with and cause any sub-distributors or other Persons appointed by it to comply with all applicable laws, rules, regulations and/or guidelines in the Territory relating to the use, storage, handling, transportation, marketing, advertisement, distribution, sale, transfer and/or disposal of the Product, as well as with the terms and conditions of this Agreement; and
keep complete and accurate records with respect to any and all Product purchased from OWNER and sold by Haispot in the Territory.
REPRESENTATIONS AND WARRANTIES OF DISTRIBUTOR
Haispot represents and warrants to OWNER, acknowledging that OWNER is relying upon such representations and warranties in connection with its entering into this Agreement, as follows:
Haispot is a valid subsisting corporation incorporated pursuant to the laws of the United States of America
Haispot has all requisite power and authority to execute and deliver this Agreement and has all necessary power and authority to perform the obligations of Haispot as set out herein;
the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which Haispot may be a party;
the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of Haispot and this Agreement, when duly executed and delivered by Haispot, will constitute a legal and binding obligation of Haispot enforceable in accordance with its terms;
the performance by Haispot of all its obligations hereunder, including the sale of the Product, will be conducted in compliance with all applicable laws in the Territory; and
Haispot possesses a readily available and extensive sales network in the Territory.
The Product will be marketed and sold by Haispot solely under the Trade-marks. Haispot will not alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any Trade-marks, logos, trade names or trading style of OWNER) and other indications of origin, which may be placed on Product. Haispot acknowledges that OWNER is the exclusive owner of the Trade-marks and Haispot has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith and that all goodwill associated with the Trade-marks is owned by and shall enure exclusively to and for the benefit of OWNER. Furthermore, Haispot agrees not to represent in any manner that it has acquired any ownership rights in the Trade-marks. Any goodwill enjoyed by Haispot from use of the Trade-marks shall vest in and become the absolute property of OWNER and Haispot undertakes and agrees, at the request and expense of OWNER, whether before or after termination of this Agreement, to execute all such instruments and to do all such acts and things as may be necessary and desirable to vest absolutely in OWNER all such Trade-marks and the goodwill therein. Haispot shall, during the Term of this Agreement and subject to due compliance with the provisions of this Article XII, have the right to use and display OWNER’s Trade-Marks and copyrighted material in the Territory solely in connection with the marketing, sale, distribution and support of the Product in such Territory in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by OWNER, for no other purpose whatsoever. It is the responsibility of Haispot to ensure that the packaging materials for Product are in conformity with all applicable legislation in the Territory.
In connection with the foregoing, Haispot covenants and agrees as follows:
to market, distribute and support the Product only under the Trade-marks, and not under any other trade-mark or logo of any other Person;
to obtain from OWNER written approval for all promotional material, alternative product packaging including, without limitation, blister packaging and cartons, and to comply with all instructions issued by OWNER relating to the form and manner in which OWNER’s Trade-marks shall be used and to discontinue forthwith, upon notice from OWNER, any practice relating to the use of OWNER’s Trade-marks which in OWNER’s opinion would or might adversely affect the rights or interests of OWNER in such Trade-marks;
not to use or permit any entity controlled by it or affiliated with it to use the Trade-marks or any other trade-marks or trade names or trade dress of OWNER or any trade-marks, trade dress, words, names, symbols, or designs which could reasonably be expected to be considered confusingly similar thereto, as part of its corporate or trading name or style, or on any of its products;
not to infringe OWNER’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of OWNER to any Trade-marks, trade names, copyrights and registrations used in connection with the Product, nor to effect any applications or registrations thereof without the express written consent of OWNER, and not to take any action to the detriment of OWNER’s interest therein or which would or could dilute the value of the goodwill attaching to the Trade-marks;
not to effect or permit the removal, renewal or alteration of any Trade-marks, trade names, notices, name plates, or D.I.N.’s or NPN’s or serial numbers affixed to any of the Product or its packaging;
CONFIDENTIAL INFORMATION AND NON-COMPETITION
When and if required, OWNER will furnish Haispotthe necessary information so that Haispot can fulfill its obligations hereunder regarding the registration of the Product to be distributed in the Territory. This information shall constitute part of the Confidential Information defined in Section 1.1(d).
From time to time, OWNER may periodically provide Haispot with new or up-graded data that has become available, documentation, tests, reports or other pertinent information relating to the Product or otherwise, which information will also form part of the Confidential Information and which will assist in keeping Haispot knowledgeable in regard to the Product and maintaining a competitive edge in the marketing and sales of the Product.
Haispot acknowledges that in its relationship with OWNER and/or by virtue of the performance of this Agreement, it and/or its employees, shareholders, officers, directors, principals, agents and contractors (collectively, “Representatives”) will be and shall hereafter continue to be entrusted with Confidential Information, the disclosure of any of which to competitors of OWNER or to the general public would be highly detrimental to the best interests of OWNER. Haispot further acknowledges that the right to maintain confidential such Confidential Information constitutes a proprietary right of OWNER, which OWNER is entitled to protect. Accordingly, and notwithstanding anything to the contrary herein expressed, Haispotcovenants and agrees with OWNER:
that it shall not use or copy, or permit the use or copy of any of the Confidential Information, directly or indirectly, for any purpose other than the discharge of its duties and obligations arising from its appointment as a DISTRIBUTOR hereunder and only in the best interests of OWNER;
that it will maintain the absolute confidentiality of the Confidential Information and that it will not (without the prior written consent of OWNER) either individually, or in partnership or jointly, or in conjunction with any other Person, as principal, agent, shareholder, or in any manner whatsoever, disclose, reveal, release, utilize, sell, assign, supply, or transfer to any person at any time, any of the Confidential Information, except to the extent necessary to discharge its duties and obligations relating to its appointment hereunder and only in the best interests of OWNER;
that it will take all necessary action and will do all that is reasonably within its power to prevent the disclosure, release or supply of any of the Confidential Information to any Person, including by any of its Representatives, except to the extent necessary to discharge its duties and obligations hereunder and only in the best interests of OWNER;
in furtherance of the above, Haispot will advise its Representatives, and any other Persons who are given access to the Confidential Information, of the confidential and proprietary nature of the Confidential Information and of the restrictions imposed by this Agreement and, if appropriate, shall require each of them to signify in writing their agreement to abide by the terms of this Agreement and maintain the confidentiality of the Confidential Information.
Notwithstanding any other provision herein, the parties hereto agree that this Agreement shall automatically terminate without requirement of notice to the defaulting party or an opportunity to cure, upon the occurrence of the following events:
if a decree or order of a court having competent jurisdiction is entered adjudging a party bankrupt or approving as properly filed a petition seeking or winding up of such party under the Companies Creditors Arrangement Act (Canada) or the Winding –up and Restructuring Act (Canada) or under any analogous, comparable or similar law in the Territory or other applicable jurisdiction, or under any other process of execution or similar effect against any substantial part of the property of such party, including, without limitation, the appointment of a receiver in respect thereto, or ordering for the winding up or liquidation of its affairs, and any such decree or order continues unstayed and in effect for a period of thirty (30) days;
if a party admits in writing its inability to pay its debts as they become due, makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors, makes any proposal under the Bankruptcy and Insolvency Act (Canada) or any comparable or similar law in the Territory or other applicable jurisdiction, seeks relief under the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada) or any other bankruptcy, insolvency, or analogous, comparable or similar law in the Territory or other applicable jurisdiction, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, custodian, sequestrator or other person with similar powers to itself or of all of any substantial portion of its property or assets, or files a petition or otherwise commences any proceeding seeking any reorganization, arrangement, composition or readjustment under the applicable bankruptcy, insolvency, moratorium, reorganization or other similar law in the Territory or other applicable jurisdiction affecting creditors’ rights or consents to or acquiesces in, the filing of such a petition;
if a governmental regulatory order or final judgment or decree in any jurisdiction which materially and adversely affects the ability of a party to fulfill its obligations to the other party under this Agreement shall have been made, issued obtained or entered against such party and such order, judgment or decree shall not have been vacated, discharged or stayed pending appeal within the applicable time period; or
DISTRIBUTOR assigns or attempts to assign this Agreement or any of the rights or obligations hereunder without the prior written consent of OWNER being given.
OWNER may, without prejudice to any other rights, immediately terminate this Agreement by notice to DISTRIBUTOR if:
any change occurs in the constitution, management or control or the financial or other circumstances of DISTRIBUTOR which, in the sole opinion of OWNER, is materially detrimental to the interests of OWNER including, without limitation, as a result of any interest in DISTRIBUTOR being acquired by any Person engaged in a business that is competitive with the business of OWNER; or
the Product has not been duly registered for sale in the Territory within the time period prescribed pursuant to the terms of this Agreement, including Section 8.2 hereof.
In the event OWNER shall deem it necessary to recall the Product from the Territory, whether as a consequence of issues discovered by OWNER, or if required by the local authorities in the Territory, OWNER shall be entitled to terminate this Agreement upon three (3) months’ notice. In such case, neither of the parties shall be obliged to pay any compensation, loss of income, or goodwill to the other party, except that OWNER shall indemnify Haispot in respect to any liabilities incurred by Haispot in respect to any claims made by any Person against Haispot as a direct consequence of and relating specifically to such recall of Product, provided that such Product recall was not caused by or necessitated by any actions or omissions on the part of
Furthermore this Agreement may also be terminated by either party at any time in the event that the other party commits a material breach of any provision of this Agreement and such other party fails to remedy such breach within thirty (30) days after receipt of written notice specifying the breach from the non-defaulting party.
Upon termination of this Agreement for any reason whatsoever:
Haispot shall cease use of OWNER’s Trade-marks and shall thereafter refrain from holding itself out as an authorized distributor of OWNER, and DISTRIBUTOR will forthwith remove and thereafter discontinue all advertisements, signs and notifications stating or implying that it is a distributor of Product or in any way connected with OWNER;
OWNER shall have the option, but not the obligation, to repurchase from DISTRIBUTOR any of the Product in DISTRIBUTOR’s inventory by refunding to DISTRIBUTOR its net cost for such Product, provided, however, that OWNER may set off and deduct from the repurchase price any amount then due and owing by DISTRIBUTOR to OWNER as well as any freight charges and duties relating to the delivery of such Product to OWNER;
In case of termination of this Agreement, OWNER will grant DISTRIBUTOR a reasonable period of time to sell its existing stock of Product, which shall in any event not be longer than ninety days (90) from the date of termination of this Agreement.
LIMITATION OF LIABILITY AND INDEMNITIES
Except as expressly provided in this Agreement, there are no representations or warranties, express or implied, statutory or otherwise, relating to the Product, including, without limitation, any implied warranty of merchantability or fitness for any particular purpose. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods. DISTRIBUTOR assumes all risk and liability for any loss, damage or injury resulting from the sale and use of the Product, either alone or in combination with other products.
DISTRIBUTOR hereby agrees to defend, indemnify and hold harmless OWNER against any liability, losses, damages or costs (including any legal costs) incurred or suffered by OWNER as a result of any breach, negligent act or omission or wilful default on the part of DISTRIBUTOR, or its Representatives arising either directly or indirectly from the performance (or non-performance) by DISTRIBUTOR or any of its Representatives of any obligations under this Agreement.
OWNER shall not be liable to the DISTRIBUTOR for any special, indirect, consequential, punitive or exemplary damages, including for greater certainty any damages on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business.
Notwithstanding anything to the contrary herein, if OWNER notifies DISTRIBUTOR that any of the Product needs to be recalled or otherwise withdrawn from the market, and DISTRIBUTOR refuses or otherwise fails to do so in a timely fashion, DISTRIBUTOR agrees to indemnify OWNER, its affiliates, and their respective officers, directors, employees, agents and shareholders, from and against any and all liability, loses, damages or costs, including legal costs, incurred or suffered by OWNER as a result of any such failure or refusal.
No failure or omission by OWNER or DISTRIBUTOR in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if the same arises on account of force majeure, which term shall include any event or cause beyond the control of OWNER or DISTRIBUTOR, as the case may be, including but not restricted to acts of God, acts or omissions of any government, or agency thereof, rebellion, insurrection, riot, sabotage, invasion, quarantine, restrictions, strike, lock out and transportation embargoes, provided that the party relying on this Section shall forthwith after any such event give written notice to the other party of its inability to perform such obligation and the reasons therefore. If force majeure continues for a period of more than three (3) months, without the parties hereto being able to develop an alternative satisfactory arrangement, then either party has the option of immediately terminating this Agreement.
Any notice, request, demand, consent or other communication required or permitted under this Agreement shall be in writing and shall be given by personal delivery (including courier) by email, prepaid registered or certified mail or by fax (confirmed by mail) addressed to the party for which it is intended at the address below and shall be deemed to be given on the day of delivery or transmission if during normal business hours, or, if after business hours, on the next following Business Day, or if mailed by registered or certified mail, on the day which is seven (7) Business Days after such notice is mailed during normal postal conditions. In the event of a postal disruption, any notice mailed will be deemed received on the seventh (7th) Business Day following resumption of regular postal service:
GOVERNING LAW AND ARBITRATION
The parties agree that the validity, operation and performance of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia and the federal laws of the United States of America applicable therein (notwithstanding conflict of law rules), and the parties do expressly and irrevocably attorn to the jurisdiction of courts of Georgia with respect to any matter or claim, suit, action or proceeding arising under or related to this Agreement. To the fullest extend permitted by applicable law, DISTRIBUTOR waives and agrees not to assert, as a defense or otherwise, (i) any claim that it is not subject to the jurisdiction (in persona or otherwise) of any such court, (ii) any objection that it may now or hereafter have to the laying of venue in any such court, or (iii) any claim that any action, suit or proceeding has been brought in an inconvenient forum.
Any dispute concerning the subject matter of this Agreement, or the breach, termination or validity thereof (a “Dispute”) will be settled exclusively in accordance with the procedures set forth herein. The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. If the Dispute has not been resolved through good faith efforts and negotiations of senior officers or representatives of the parties within fifteen (15) days of receipt by the relevant party of the notice of Dispute, such notice will be deemed to be a notice of arbitration and the parties agree to submit the Dispute to a single arbitrator mutually agreeable to both parties. In the event that the parties cannot agree on a sole arbitrator, the arbitrator will be appointed by a judge of the Georgia Superior Court of Justice on application by either party to the Dispute. All arbitration, proceedings and hearings will be conducted in the English language in accordance with the Model Law on International Commercial Arbitration as set out in the Schedule to the International Commercial Arbitration Act, R.S.O., 1990, Chap. 19 and the UNCITRAL arbitration rules then in force. All decisions and awards rendered by the arbitrator will be final and binding upon the parties for all questions submitted to such arbitrator and the costs associated with such submission shall be shared equally by the parties involved in the Dispute unless the arbitrator decides otherwise. The parties waive all rights of appeal therefore to any court or tribunal, and agree that the only recourse by any party to any court will be for the purpose of enforcing an arbitration award.
Submission of the Haispot vendor application serves as a owner signature and agreement