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Exhibit 10.2
EXCLUSIVE INTERNATIONAL
DISTRIBUTION AGREEMENT
This EXCLUSIVE INTERNATIONAL
DISTRIBUTION AGREEMENT (“ Agreement ”)
is made as of _____________, 2008, between and among The Hong
Kong Winalite Group Limited, a Hong Kong company (“
Winalite ”); and the following (the “
Distributor ”):
Name of company:
__________________________________________________
Country and location of legal
organization: ________________________________
Distributor’s initials:
__________
Winalite’s
initials: __________
Each of the foregoing is referred
to as a “ Party ” and together as the
“ Parties ”. Capitalized terms not
otherwise defined have the meanings assigned to them in
Exhibit A to this Agreement.
RECITALS
A.
Winalite has the right to
distribute certain personal health and hygiene products
identified on Exhibit B (the “
Products ”) in certain countries around the
world, including in the territory identified on Exhibit C
(the “ Territory ”).
B.
Winalite has been organized to
centralize and coordinate the marketing, sale and distribution
of branded products, including those previously manufactured
and/or distributed by third parties using the name
“Winalite;” accordingly, the ownership and rights to
that name and brand are also being consolidated within
Winalite.
C.
Distributor desires to be
appointed, and Winalite desires to appoint Distributor, as
Winalite’s exclusive sub-distributor for the Products in
the Territory, with authority to market and re-sell those
Products by direct marketing (except within the People’s
Republic of China) and/or other means within the Territory, on
the terms and conditions set forth in this Agreement.
D.
The Parties will enter into a
License Agreement and a Consulting and Management Services
Agreement in connection with the distribution of the Products in
the Territory.
NOW, THEREFORE, in consideration
of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the Parties, the
Parties agree as follows:
AGREEMENT
1.
Appointment, Territory and
Products.
(a)
Appointment.
Winalite appoints Distributor as its exclusive
sub-distributor of the Products within the Territory during the
Term of this Agreement, and Distributor accepts such
appointment.
(b)
Territory.
Distributor may only market, advertise, sell, distribute or
otherwise transfer the Products to third parties located within
the Territory and will not directly or indirectly market,
advertise, sell or distribute the Products to any Person located
outside the Territory including selling or distributing the
Products to any Person for ultimate resale to Persons outside
the Territory.
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(c)
Products.
Winalite may from time to time (i)
revise Exhibit B to delete obsolete products or to add
products that Winalite deems appropriate for sale and
distribution by Distributor within the Territory, and/or (ii)
make changes, modifications, enhancements or alterations to the
Products, which will then replace the prior Products for
purposes of this Agreement. Winalite will not be liable for any
loss or damages incurred by the Distributor arising out of any
changes, modifications, enhancements or alternations to the
Products.
2.
Winalite
Brand. Distributor
hereby transfers to Winalite all right, title and interest it
may have in and to the word “Winalite,” including
without limitation any trademark, trade name, or copyright to
that word and any representation or design incorporating that
word (collectively, the “ Winalite Brand
”).
3.
Responsibilities of
Distributor .
Throughout the Term of this Agreement, at its
expense, Distributor will (i) use its best efforts to promote
the sale of the Products within the Territory, to increase the
volume of such sales, and to develop and increase the market for
the Products; (ii) establish and maintain markets and
organizations for the marketing, sale and distribution of the
Products within the Territory; (iii) conduct Product knowledge
and sales training for its personnel and those of the Downline
Distributors as necessary or appropriate to carry out its
obligations under this Agreement; (iv) maintain facilities and
personnel adequate to discharge its responsibilities under this
Agreement; (v) maintain reasonable inventory of Product for the
prompt filling of orders from customer and Downline
Distributors; (vi) maintain good relationships with customers
and Downline Distributors; (vii) conduct advertising and
marketing of the Products, in periodicals and other appropriate
venues and media, to the extent reasonably necessary to
discharge its responsibilities under this Agreement; (iv)
prepare and maintain adequate sales and other promotional
literature concerning the Products and distribute such materials
to customers and potential customers in the Territory; (viii)
attend and participate in trade shows and exhibits held within
the Territory to the extent reasonably necessary to promote the
sales of the Products in the Territory; (ix) at such intervals
as Winalite will designate, furnish to Winalite any and all
reports reasonably requested by it relating to all sales, orders
booked, inquiries received and other activities of Distributor
under this Agreement and all Downline Distributors; and (x)
perform any and all other acts reasonably necessary or desirable
to fulfill its obligations under this Agreement.
4.
Responsibilities of
Winalite . Winalite will take all
reasonable steps to timely supply the Products to Distributor.
From time to time, at its discretion, Winalite may provide
marketing and sales support, customer services support,
advertising, training, and other services to Distributor
pursuant to one or more separate agreements between the
Parties.
5.
Right to Appoint
Sub-Distributors. Distributor may appoint one or more
sub-distributors of the Product within the Territory, but may
under no circumstances grant or purport to grant to any other
Person more rights than granted to Distributor by Winalite in
this Agreement. Any sub-distributors appointed by Distributor,
together with any further sub-distributors of the Products, are
referred to collectively as the “ Downline
Distributors .” Distributor will promptly inform
Winalite of the appointment and identity of all Downline
Distributors and, at least semi-annually, of the activities of
the Downline Distributors. Distributor will use its best efforts
to ensure the compliance by all Downline Distributors with all
obligations imposed on them by their appointment, including
without limitation their obligation to maintain the
confidentiality of all Winalite Confidential Information.
Distributor will be liable for and indemnify Winalite against
any and all claims, actions, liabilities, losses, damages and
expenses (including legal expenses) incurred by Winalite which
arise out of or in connection with, directly or indirectly,
Distributor's performance under this Agreement, including
without limitation any losses or expenses arising out of any
third party demand, claim or action (including any claim
alleging infringement of third party rights) or any
misrepresentation, negligence, fraud, willful misconduct or
breach of statutory duty of or by Distributor, or its Downline
Distributors, employees, agents or contractors.
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6.
Purchase, Marking and
Labeling of Products, etc.
(a)
Purchase Orders, Payment
Terms, and Delivery .
Distributor will place orders for Products in a form
and manner prescribed by Winalite, and Distributor’s
purchase of the Products will be on terms and conditions
specified by Winalite or then generally in use by Winalite for
like sales of Product. All purchases will be FOB Hong Kong, or
such other location as the Parties may from time to time
designate, and legal title to the Products sold hereunder, and
all risk of loss, will pass from Winalite to Distributor, when
the Products are delivered to a common carrier at that location.
All payments will be made in the currency specified by Winalite
from time to time, and all remittances will be made in such
currency to Winalite at the address listed below or such other
place as Winalite may designate. Distributor will pay all sums
payable by it to Winalite under this Agreement free and clear of
all deductions or withholdings on account of tax or otherwise
unless the law requires a deduction or withholding to be made.
If a deduction or withholding is so required the
Distributor will pay such additional amount as will ensure that
the net amount Winalite receives equals the full amount which it
would have received had the deduction or withholding not been
required.
(b)
Price and Price Changes.
Distributor’s
purchase price from Winalite for any Product will be the price
for such Product set from time to time by Winalite on an
arm’s length basis. Distributor will purchase and sell the
Products for its own account.
(c)
Marking and
Labeling. Distributor
will inform Winalite at least ninety (90) days before placement
of any order for Products if the Products must be marked or
labeled (together with the details of the marking or label) in
any way to comply with import or other laws applicable to the
import or sale of the Products within the Territory. Winalite
has no independent obligation to determine what marking or
labeling may be required by applicable laws and regulations of
the Territory. Winalite may in its discretion include the cost
of any such marking or labeling in the price for the Products
charged to Distributors.
(d)
Governmental
Approvals. Distributor
is responsible for obtaining any and all approvals necessary for
the import and sale of the Products in the Territory.
(e)
Advertising and Promotional
Materials. Distributor will obtain the prior consent of Winalite for
any and all promotional or marketing materials, literature, logo
products, or any other items bearing the name, trademark or
other words or marks which Winalite owns, has the rights to, or
which identify Winalite or any of its brands.
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7.
Warranties.
(a)
Winalite
Warranties. All
Products sold to Distributor will be subject to the standard
warranty issued by Winalite for such Products. Distributor will
not grant any warranties to its customers in excess of the
warranties granted by Winalite to Distributor.
(b)
Disclaimer of
warranties. SUBJECT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN THE STANDARD
WARRANTY PROVIDED BY WINALITE FOR THE PRODUCTS, ALL WARRANTIES,
CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR
OTHERWISE IN RELATION TO THE PRODUCTS (APART FROM TERMS IMPLIED
AS TO TITLE UNDER THE SALE OF GOODS ORDINANCE) ARE EXCLUDED TO
THE FULLEST EXTENT PERMITTED BY LAW.
(c)
Distributor’s
Warranties to Purchasers .
Distributor hereby covenants and agrees to indemnify and
hold Winalite harmless for any loss, damage or injury, including
attorneys’ fees (on a full indemnity basis) and costs,
arising out of any express or implied warranties given by it
with regard to any of the Products except to the extent Winalite
has extended its own warranty to Distributor with regard to such
Products.
8.
Representations and
Warranties. Each Party
represents and warrants to the other, as to itself and not as to
the other, as follows:
(a)
It is a company duly organized
under the laws of the country identified in its address on the
signature page of this Agreement and has all requisite corporate
power and authority to enter into, deliver and perform its
obligations under this
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