DISTRIBUTOR AGREEMENT
PREAMBLE
THIS DISTRIBUTION AGREEMENT ("Agreement") entered into as of MARCH
20, 2006
Creative Enterprises, (hereinafter "Supplier") and Exclusive
Beverage
Distributors with its principle place of business at 176-19 Central
Ave.
Fanningdale, NY, 11735 (hereinafter "Distributor").
RECITAL
WHEREAS, Supplier is in the business of developing, marketing,
selling and
promoting certain beverage products, including the Product (as
hereinafter
defined):
WHEREAS, Distributor is in the business of distributing beverages
to customers
and assures the Supplier that it has the financial resources,
facilities,
personnel, and expertise necessary to successfully market the
Product in the
territory (as hereinafter defined); and
WHEREAS, Distributor wishes to obtain, and Supplier is willing to
grant
Distributor an exclusive right to distribute the Product to retail
customers for
purpose of resale in the Territory.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual
representations and agreements set forth herein, and other good and
valuable
consideration, the receipt and adequacy of which are hereby
acknowledged.
Supplier and Distributor, intending to be legally bound, hereby
agree as
follows:
1.
DEFINITIONS - For purpose of this Agreement the following terms
shall
have the respective meanings indicated below:
1.1
PRODUCT - Jana Water, Jana Flavored Water, and Skinny Water.
1.2
SALES QUOTA - Specified minimum case quantities of the
Product as set forth in EXHIBIT A consisting of a Minimum
Annual Purchase Commitment.
1.3
TERRITORY - As set forth in EXHIBIT B).
1.4
PRICING - As set forth in EXHIBIT C).
1.5
CASE 24 pack 16 oz. Water, Flavored Water, and Skinny Water,
12 Pack 1 Liter and 1.5 Liter water.
* Certain portions of this Exhibit has been omitted and filed
separately with
the Commission. Confidential treatment has been requested with
respect to the
omitted portions.
1
2.
GRANT OF DISTRIBUTION RIGHT
2.1
EXCLUSIVE - Subject to the terms and conditions of this
agreement, Supplier hereby grants to Distributor, and
Distributor hereby accepts from Supplier, a nontransferable,
exclusive right to distribute the Product to customers
located in a Territory.
2.2
Supplier agrees to compensate Distributor for all cases
delivered in the Territory through alternative distribution
subject to the exceptions herein Section 2 of this
agreement. This invasion fee will be paid on a quarterly
basis, at the rate of *** per case.
2.3
Supplier expressly reserves unto itself and/or its agents
the right to sell products within the territory to all
accounts that will not accept store delivery inclusive of
catalogue accounts, internet fulfillment services and
electronic media accounts.
2.4
Supplier shall be free to sell or distribute products in the
Territory to or in any of the following which Distributor
fails to effectively service within 90 days hereof, or at
any time that such service ceases or is interrupted for any
period of 30 or more days.
a)
Any class or channel of trade that is mutually
agreed upon;
b)
Any significant, definable, geographical segment of
the territory;
c)
Any accounts the Distributor is unwilling to
service;
2.5
Distributor may appoint sub-distributors in furtherance of
its obligations under this Agreement to service the
Territory encompassed by this Agreement. Distributor shall
be responsible for the conduct of all its sub-distributors.
In the event this Agreement is terminated, any and
all sub-distributor Agreements shall automatically be
terminated. The Distributor agrees to indemnify and hold
harmless Supplier against any and all damages and costs,
including attorney's fees and all other expenses incidental
thereto, incurred as a result of any claim(s) asserted by
any of the Distributors' sub-distributors, Supplier may
notify Distributor of such dissatisfication and it shall be
the obligation of the Distributor to terminate the
sub-distributor within sixty (60) days of said notification
by Supplier, without any disruption of service to the retail
accounts being serviced by said sub-distributor.
2.6
Chain accounts, from time to time Supplier or it's
affiliates may agree to uniform pricing with certain Chain
accounts customers. Distributor shall have a right of first
refusal to match the agreed to uniform pricing for these
accounts within the Territory. All discounts will be split
between supplier and distributor.
3.
MARKETING OBLIGATIONS OF DISTRIBUTOR
3.1
DISTRIBUTION TO CUSTOMERS - Subject to the exclusions
contained in paragraph 2.4 hereof, Distributor shall
directly distribute the Product to customers within the
Territory.
* Certain portions of this Exhibit has been omitted and filed
separately with
the Commission. Confidential treatment has been requested with
respect to the
omitted portions.
2
3.2
SALES QUOTAS - As set forth in EXHIBIT A. In each annual
period. Distributor shall equal or exceed the retail sales
quota set forth in EXHIBIT A.
3.3
PROMOTIONAL EFFORTS - Distributor shall use its best
efforts to aggressively sell and promote the product to
customers in the Territory.
3.4
DISTRIBUTOR ASSISTANCE - Supplier shall assist Distributor
with the marketing of product within the Territory and will
honor all reasonable requests for promotional support.
3.5
DISTRIBUTOR SERVICE - Distributor shall use its best
efforts to properly service all customers within the
Territory.
3.6
REPORTS - Distributor shall deliver to Supplier no later
than 10 days after the end of each month during the term of
this agreement a written report showing for the preceding
month by ship-to location.
a.
Monthly Depletions of product by case for each item
b.
Year to Date Sales of Product in cases for each item
c.
Number of Active Accounts for the Product
d.
Sales to chain Accounts of twenty (20) stores or more
(whether all such stores are within or outside the
Territory) by cases for item, upon request.
4. ORDER PROCEDURE
4.1
ORDERS - All orders for Product requested by Distributor
shall be in writing and received by Supplier at least 5 days
prior to requested shipping date.
4.2
SUPPLIER ACCEPTANCE - All orders for Product by
Distributor shall be subject to acceptance by Supplier and
shall not be binding upon Supplier until the earlier of
written confirmation or shipment, and in the case of
acceptance by shipment, only as to the portion of the order
actually shipped.
4.3
CONTROLLING TERMS - The terms and conditions of this
agreement and of the applicable Supplier hereunder. Any
terms or conditions appearing on the face or reverse side of
any purchase order, acknowledgement or confirmation that are
different from or in addition to those required hereunder
shall not be binding on the parties, even if signed and
returned.
5. PRICES, DISCOUNTS AND PAYMENT
5.1
PRICES TO DISTRIBUTOR - The price payable by Distributor
for the Product shall be established by Supplier for
purposes of this agreement and may be changed, at the
Supplier's sole discretion, within thirty (30) days written
notice to Distributor.
3
5.2
PAYMENT - Distributor shall pay for Product within (45)
days from the date product is received on such terms as may
be otherwise specified on Supplier's invoice. At Supplier's
option, shipments may be made on credit terms in effect at
the time an order is accepted. Supplier reserves the right,
upon written notice to Distributor of any of its obligations
to Supplier, including the failure of Distributor to comply
with credit terms and limitations.
5.3
DISTRIBUTOR FINANCIAL CONDITION - Distributor represents
and warrants that it is and at all times during the term of
this Agreement shall remain in good financial condition,
solvent and able to pay invoices for product when due.
6. WARRANTY - Subject to the terms and conditions of this
Agreement, Supplier
warrants that the Product, when and is delivered to Distributor,
confirms to its
specifications in all material respects, and to the best of its
knowledge is
free from defects in contents and workmanship.
7. CONFIDENTIAL INFORMATION - During the course of performance of
this
Agreement. Supplier may disclose certain Confidential Information
to the
Distributor solely to permit Distributor to perform its obligations
under this
Agreement. Distributor shall use its best efforts to maintain the
secrecy of all
such Confidential Info
