目录 ARTICLE I APPOINTMENT TO SELL AND DISTRIBUTE 第一条 委任销售与分销 ARTICLE II ERM 第二条 协议期间 ARTICLE III RODUCTS AND PRICES 第三条 产品和价格 ARTICLE IV ERFORMANCE第四条 协议履行 ARTICLE V TERMS OF PAYMENT第五条 支付条款 ARTICLE V目录
ARTICLE I APPOINTMENT TO SELL AND DISTRIBUTE 第一条 委任销售与分销
ARTICLE II ERM 第二条 协议期间
ARTICLE III RODUCTS AND PRICES 第三条 产品和价格
ARTICLE IV ERFORMANCE第四条 协议履行
ARTICLE V TERMS OF PAYMENT第五条 支付条款
ARTICLE VI RADEMARK第六条 商标
ARTICLE VII LOCAL LAWS第七条 本地法律
ARTICLE VIII LOCAL FEES AND TAXES第八条 地方税费
ARTICLE IX LEGAL RELATIONSHIP AND INDEMNIFICATION
ARTICLE X ASSIGNMENT第十条 转让
ARTICLE XI TERMINATION第十一条 协议终止
ARTICLE XII MISCELLANEOUS第十二条 杂项条款
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made on this day of _____, between A INC., a Florida Corporation (the "Company") located at_____, Florida 32114 and _______ (the "Distributor") located at _______,.
本经销协议 (以下简称"协议") ,系位于佛罗里达州的A公司（以下简称公司）与______(以下简称"经销商") 位于_______的公司，于_____签订。
WHEREAS, the Company is the exclusive worldwide distributor of cosmetic and skin care products (collectively the "BB Product or Products") manufactured by BBB INTERNATIONAL, INC. a Florida Corporation; and
鉴于公司是BB化妆品的全球独家的经销商，所代理的护肤品均由佛罗里达BBB国际公司制造(以下称 "BB产品") 。
WHEREAS, the Company desires to increase the public''s consumption of the BBB Products specified herein within the geographic area described in Exhibit A (the "Territory"); and
WHEREAS, the Distributor desires to secure the right to market the aforementioned Products in the Territory and such additional territories as may be agreed upon in writing between the Company and Distributor.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I APPOINTMENT TO SELL AND DISTRIBUTE 第一条 委任销售与分销
Section 1.1 Appointment. The Company agrees to sell and the Distributor agrees to buy Products on the terms and conditions contained in this Agreement. The Distributor agrees to sell, distribute and promote the sale of Products throughout the Territory on the terms and conditions contained in this agreement.
Section 1.2 Territory. Except as provided in Section 11.4 hereunder, the Company agrees not to deliver the Products to any person other than Distributor within the portion of the Territory, provided, however, that the Company shall have the right to ocean-going vessels and to ship Products through or deliver Products within the Exclusive Territory if it knows or reasonably believes that substantially all of such Products are to be reshipped for eventual delivery outside the Territory. Without the prior written consent of the Company, which in the Company''s sole and absolute discretion may be withheld, Distributor hereby covenants and agrees that it shall not: (i) sell, ship or deliver the Products to or in any place or geographic area located outside the Territory; or (ii) sell Products to any purchaser if Distributor knows or has reason to believe that more than 20% of such Products will eventually be sold through retail outlets located outside the Territory. In the event that sales of Products are made by a distributor in another area and a substantial portion of such Products are shipped by customers of such Distributor into the Territory, or in the event sales of Products are made within the Territory by Distributor and a substantial portion of such Products are shipped by customers into an area outside the Territory in which another distributor has sales rights, (whether or not such shipments take place as the result of a breach hereof), then the Company shall have the right in its discretion (in addition to any other rights and remedies) to make an equitable apportionment of the adjusted gross profits from such sales between the Distributor and any other distributors of the Products purchasing directly from the Company involved in such dispute. Any such apportionment in adjusted gross profits may be determined by the Company acting in its sole discretion exercised in good faith, taking into account such factors as sales effort and expenses in securing the customer''s business, the level of advertising and promotion by the distributor into whose territory the Products are shipped, and the likelihood that the cross-shipments have reduced sales which otherwise would have been made in the territory into which the goods have been shipped. Adjusted gross profits, as used herein, shall mean sales prices, less (I) cost of goods sold, (ii) direct freight, and (iii) direct selling cost.
区域划分 除本协议第 11.4规定外, 公司对经销商所签订的区域实行区域内销售保护，不能在区域内将产品提供给其他人, 但如果公司知道或者有理由确信,实际上这些产品将最终转运到保护区域外地区，则有权在本保护区域运送本产品。未经公司的书面同意，公司有权随时收回该同意，经销商承诺保证同意不得有如下行为：（1）不在/到任何非经销商区域内进行销售、装运、交付本产品；（2）经销商知道或应当知道，20%以上的本产品将最终通过区域外的零售店销售出去，则不得出售给该买方。如果，另一个区域的经销商窜货到本区域或该经销商客户大部分货物窜货到本区域以及本区域内经销商窜货或其客户窜货到别的区域，（无论装运是否构成违约的后果），公司有权（除了任何其他权利和救济），在直接从公司购买产品的涉及纠纷的经销商之间调整毛利作出公平分配以避免矛盾。公司将根据诚实信用的原则独自裁量，考虑经销商的销售业绩、业务花费、广告促销水平以及因为窜货而引起的销售额减少程度等因素来调整这一合理的区域利润分配。调整毛利润意味着调整销售价格，减少(1)销售成本,(2)直接运费,(3) 直接销售费用。
CORPORATE ACCOUNTS: BBB公司账户:
BBB has no interest in supplying accounts in Distributor''s respective territory and will strongly discourage accounts from electing to be supplied directly thru BBB corporate. However, in some rare instances, an existing or new account may elect to be supplied directly by BBB corporate, i.e., an international hotel chain or spa chain. In these rare instances, Distributor would be immediately notified by corporate of any such activity in their respective territory. In this case, Distributor would then be awarded a 20% commission on all sales generated from BBB retail and professional products on placed orders from said BBB corporate account. In exchange for this commission, Distributor would be required to train, educate and support said account. However, BBB corporate would be solely responsible for advertising and co-op advertising incentives, spa menu design package and event sampling opportunities, etc.
BB公司不会给经销商在各自经销区域提供的账户，并强烈反对直接提供通过BBB公司选用帐户。 然而，在一些特殊情况下，BBB公司也可直接提供账户，如国际宾馆或者水疗连锁。在这些特殊情况下，公司会立刻告知各自区域的经销商该活动。在这种情况下，经销商会获得来自从BBB公司在该帐户所产生的BBB零售和专业产品销售额的20%提成。作为提成的交换，经销商需要培训、训练和支持该帐户。但是,BBB 公司会独自负责进行广告运作和合作广告激励、Spa项目设计包装和事件抽样机会等。
In the event Distributor elects to refrain from training, educating and supporting said corporate account, Distributor would be awarded a monthly commission of 5% on all sales generated from BB retail and professional products on placed orders.
Section 1.3 Ocean-Going Vessels. Distributor shall not sell Products to ocean-going vessels unless approved in writing from the Company.
Section 1.4 Conflicts of Interest. Distributor hereby covenants and agrees that during the initial term and any renewal term hereof neither Distributor nor any Related Person (as hereinafter defined) shall, either directly or indirectly, distribute or sell within the Territory any products or goods not manufactured or sold by the Company which are or may be in competition with the Products, including (without limitation) skin care products; (The term "Related Person" shall mean: (i) any person who directly or indirectly owns any beneficial interest in or in any manner controls any of the stock of Distributor; (ii) any member of Distributor''s or any such stockholder''s immediate family; and (iii) any person, partnership, corporation or other entity which any of the foregoing individually or collectively control or in which any of the foregoing have any direct or indirect ownership or financial interest.
利益冲突。经销商特立约同意在初始期间和其后任何续约期间，经销商和任何关联人员(下文中定义的)不得直接或间接在区域内分销或者销售任何不是公司制造或者销售的或可能产生竞争的产品，包括(但不限于)护肤品;(术语关联人员指：(1)任何直接或者间接享有经销商权益或以任何方式拥有经销商股份的人; (2)经销商股东或者任何经销商股东的直系亲属;(3) 任何上述独自或共同控制或直接间接拥有所有权或者财产利益的自然人、合伙、公司或者其他实体)。
Section 1.5 Remedies. Distributor specifically acknowledges that any breach of any of its covenants contained in this Section I may cause irreparable harm to the Company and that damages are not an adequate remedy. Distributor therefore agrees that the Company shall be entitled to injunctive or equitable relief to enforce such covenants. (The foregoing shall not be construed to limit in any way the Company''s right to enforce such covenants in any manner or the Company''s rights to injunctive or equitable relief with respect to any other terms of this Agreement.)
Section 1.6 Invalidity of Covenants. In the event that any covenant of Distributor set forth in this Section I is determined by a court of competent jurisdiction to be unenforceable for any reason, the Distributor hereby agrees to be bound by such lesser restrictions as such court determines are enforceable.
Section 1.7 Bond. In any action or proceeding by Company to obtain a temporary restraining order and/or preliminary injunction to enforce these covenant(s), Distributor hereby agrees to waive the necessity of the posting of any injunction bond by Company in order to obtain the temporary restraining order and/or preliminary injunction. In the event that Company''s request for a temporary restraining order and/or motion for preliminary injunction is granted in whole or in part but Company is ultimately unsuccessful in obtaining a permanent injunction to enforce any of these covenant(s), Distributor hereby waives any and all rights it may have against Company for any injuries or damages, including consequential damages, sustained by Distributor and arising directly or indirectly from the issuance of the temporary restraining order and/or preliminary injunction.
ARTICLE II TERM 第二条 协议期间
Section 2.1 Duration of Agreement. Unless this Agreement is earlier terminated as provided herein, this Agreement shall be for an initial term beginning on the date hereof and ending _______, ______. This Agreement shall be renewed for successive one-year terms thereafter unless either party gives written notice of non-renewal at least 30 days prior to the end of the initial term or any renewal then in effect.
ARTICLE III PRODUCTS AND PRICES 第三条 产品和价格
Section 3.1 Products. The term "Products" shall include only those products of the Company listed in Exhibit "B". The Company may, upon fifteen (15) days written notice to the Distributor, cease selling any or all of the Products to Distributor without any liability to Company, provided that the Company does not sell any of such Products to another person or legal entity within the Territory during the term hereof, and that the discontinuance is undertaken in good faith for bona fide business reasons. The Company may add Products to Exhibit "B" from time to time upon such terms and conditions as it deems appropriate.
产品 本协议中用语 "产品" 只包括公司在附件2 中所列出的产品.公司可以提前15天书面通知经销商，停止销售任一或者全部产品而不承担任何责任，但公司不得在本协议期间销售任何该产品给本区域中的其他自然人或者法律实体且该中断是按诚实信用原则基于善意的商业理由。公司可以在适当时机，根据该条款随时增加产品到附件2。
Section 3.2 Prices. Company shall strive to maintain reasonable price levels of Products, which shall be determined and established at its sole discretion, taking into consideration such factors as competition and market conditions in Territory as well as the nature and extent of the sales promotion support that Distributor and Company shall each provide. Company shall notify Distributor of any changes in price thirty (30) days in advance of any price changes.
Section 3.3 Marketing and Advertising Material. Distributor shall abide by all corporate policies and procedures directly relating to trademarks, product/packaging color guidelines, image, marketing and advertising materials as defined by the latest revision of Corporate Policies Procedures Booklet.
Distributor shall pay Company for all marketing and advertising material which the Distributor desires subsequent to the marketing and advertising material furnished Distributor with its initial order. Company will sell marketing and advertising material to distributor at Company''s cost. Distributor shall also pay all shipping charges and a reasonable handling charge for the marketing and advertising material. All translations and printed material in foreign languages are at the sole expense of the Distributor. All "brand-related" design, set-up time and artwork submitted to Company''s graphic department shall be reasonably requested and provided free of charge as follows: proofs provided in PDF format, final artwork provided on CD final art format. Should distributor or distributor''s media sources require final films/matchprints said material will be provided to distributor at Company "Cost" only after distributor approves/signs Job Quote and return to Marketing Department.
Section 3.4 Orders. Company shall fill and ship each order of the Distributor within sixty (60) days of receipt of such order, but shall not be liable in any respect for failure to ship or for delays in shipment where such failure or delay shall have been due wholly or in part to fire, strike, differences with workmen, failure to secure materials or energy sources from usual supply outlets, any governmental regulations, orders or controls, or to any cause beyond its control. Any portion of an order remaining unshipped after such sixty (60) days may be cancelled by Distributor upon written notice to Company.
订单。公司应在收到订单后的六十 (60) 天内海运发货,但是公司对全部或部分因火灾、罢工、劳工争议、未能从通常的供应渠道获得原料或能源、政府法令或管制或任何无法控制的原因导致不能装运或延迟装运概不负责。订单上的任何部分在发出订单六十 (60) 天之后还不能发货的，经销商可以书面通知公司予以取消。
Section 3.5 Shipment. Company agrees to ship the Product to Distributor or to any individual or entity that Distributor so directs EXWorks. The cost of such shipment and any charges for demurrage, storage, or otherwise after the arrival of the Product at its destination shall be borne by Distributor. If diversions of shipments are made upon the Distributor''s request, or are made by Company as a result of the Distributor''s failure or refusal for any reason to accept shipments made pursuant to the Distributor''s orders, the Distributor shall pay the additional charges and expenses incident to such diversions, but in no event shall the Distributor pay Company an amount in excess of the charges or expenses incident to returning such shipments to their original shipping points.
ARTICLE IV PERFORMANCE第四条 协议履行
Section 4.1 Best Efforts. Distributor shall use its best efforts to promote and sell the Products throughout the Territory. Such promotion shall include Distributor''s attendance at those trade shows listed on Exhibit "C" attached hereto. Distributor is required to advertise Company''s products in local trade publications and regional consumer publications a minimum of six times per year commencing no later than six months after official Product launch date.
Company shall provide use of Company''s International Educator one time per year, provided Distributor is in full compliance with all terms and conditions of this contract. Company shall provide trainer and pay for airline travel. Company shall pay for three (3) training days at the rate of USD $225.00 per day. Distributor shall pay for any additional training days at the rate of USD $225.00 per day, payable in advance upon confirmed travel itinerary, prior to scheduled training. Distributor shall pay for trainer''s room and board at a minimum "3-Star" hotel as defined in the current Michelin hotel rating manual, and safe transport to and from the airport and daily training site.
如经销商完全遵守合同条款，公司应每年委派一次公司的全球性讲师来培训，。公司将提供导师并支付交通费用，并以每天USD $225.00支付三天的培训费用。经销商需要支付每天USD $225.00以外的其他费用。 经销商必须在预定培训前，确定旅程路线后提前支付。经销商应承担讲师的食宿费，至少是Michelin 酒店星级手册定义的3星级以上酒店， 以及酒店和机场间以及酒店和培训地间日常安全接送。
Section 4.2 Inspection and Reporting. Distributor shall permit Company and its representatives at any reasonable time to inspect Distributor''s inventory of Products, and to inspect, audit and make copies of and extracts from all books, records, accounting information and all other papers in the possession of Distributor which relate in any way to this Distribution Agreement. Within ten (10) days after the end of each calendar month, Distributor shall furnish Company with written reports certified as true and correct by Distributor and by Distributor''s president individually in such form as Company may specify (or in the absence of such specification in any reasonable form) containing the following information with respect to the preceding month:
(a) beginning and ending inventory of products on hand, itemized by Product line and item;
(b) sale of products during the month and for the year to date;
(c) month-end balance of cash on hand;
(d) month-end report of accounts receivable to include an aged schedule of accounts receivable, specifically identifying any account receivable which may be of doubtful collectability;
(e) a complete monthly listing of each and every sales representative of Distributor, clearly indicating the Territory, or part thereof, for which that representative is responsible and reporting the volume of sales attributable to that representative for the preceding month; and
(f) such other information concerning Distributor or pertinent to this Distribution Agreement as Company may at any time reasonably request.
Section 4.3 Financial Statements. Within fifteen (15) days after the end of each calendar quarter, Distributor shall submit to Company an unaudited balance sheet and statement of income and retained earnings of Distributor, certified as true and correct by Distributor and by Distributor''s president. Within ninety (90) days after the close of Distributor''s fiscal year, Distributor shall also submit to Company an audited balance sheet and statement of income and retained earnings of Distributor together with the usual and customary notes and schedules related thereto, which financial statements shall be true, correct and complete and shall be accompanied by a report of an independent certified public accounting firm, selected by Distributor but subject to the approval of the Company, to the effect that such firm has examined such financial statements in accordance with generally accepted auditing standards and that, in its opinion, such financial statements present fairly the financial position of Distributor as of the end of such fiscal year and the results of Distributor''s operations for such fiscal year, in conformity with generally accepted accounting principles applied on a consistent basis.
Section 4.4 Insurance. The Distributor shall have and maintain at all times, at Distributor''s sole expense, an insurance policy or policies insuring Distributor and the Company against any loss, liability or expense whatsoever as a result of personal injury, death, property damage, and with respect to its inventory of Products, insurance against risk of fire, so called extended coverage, sprinkler leakage, if applicable, and insurance against other risks customarily insured against by companies engaged in business similar to that of Distributor, in such amounts, containing such terms, in such form, for such period, and written by such companies as shall be satisfactory to the Company such insurance to be payable to the Company and to the Distributor as their interest may appear. All policies of insurance shall provide for not less than fifteen (15) days written minimum cancellation notice to the Company and shall list Company as an additional Named Insured. The Distributor shall furnish to the Company certificates or other evidence satisfactory to the Company of compliance with the foregoing insurance provisions within fifteen (15) days from date of request.
Section 4.5 Care of Inventory. Distributor shall maintain its inventory of Products in first class order and shall follow strictly all reasonable instructions from the Company regarding handling and storage of the Products which includes a policy of first in，firs tout on all sales. Distributor shall not alter in any manner whatsoever the bottles, labels or contents of any of the Products nor shall the Distributor sell or repackage any Products which are damaged without the Company''s prior written consent which may, in the Company''s sole and absolute discretion, be withheld.
Section 4.6 Protection of Products. Distributor shall not alter in any manner or form any of the Company''s materials, brochures or Products.
ARTICLE V TERMS OF PAYMENT第五条 支付条款
Section 5.1 Terms of Payment by Distributor. The terms of payment for the Products shall be as stated in Exhibit "D" attached hereto. Unless otherwise agreed in writing, all monies past due shall bear interest at eighteen (18) percent per annum simple interest (except that, during any period in which the balance outstanding exceeds $500,000, such interest rate shall be limited to a maximum of twenty-five (25) percent per annum simple interest calculated for such period, rather than eighteen (18) percent). Notwithstanding the foregoing, the interest rate charged shall in no event exceed the maximum rate permitted by applicable law. It is not the intent of the Company to collect or receive interest in excess of the maximum rate allowable by law, and any interest so paid shall be deemed to be a principal payment and shall be so credited and applied to the indebtedness hereunder.
经销商支付条款。 产品的支付条款应该在附录4中说明 。 除非另外签订书面协议，所有到期的未付款应支付年18%单利(除此之外，在每一个付款期间如果现金超过$500,000，此利率最高以年25%单利为限进行计算而不是18%。)。纵然如此，利率一概不得超过适用法律允许的最大限额。公司无意收取超过法律许可最高利率的利息，所付利息应视为本金付款记入贷方帐户适用该帐户下的负债。
Section 5.2 Costs of Collection. If any amounts due from the Distributor to the Company or from the Company to the Distributor hereunder are collected by or through an attorney at law, the collecting party shall be entitled to recover all costs of collection including, but not limited to, court costs, reasonable attorneys'' fees and paralegal fees, (including fees on appeals) if any.
ARTICLE VI TRADEMARK第六条 商标
Section 6.1 Ownership. The trademark "BBB" is registered with the United States Patent and Trademark Office. (Said trademark, together with any and all other trademarks, trade names, designs, signs, emblems, insignia, symbols, slogans and other marks the Company may now possess or may hereafter adopt, acquire or use in connection with the Products shall be collectively referred to herein as the "Trademarks.") The Trademarks are the exclusive and valuable property of the Company or its affiliates. Nothing herein contained shall be construed as conferring upon the Distributor any right or interest in the Trademarks or their registration, and any use of the Trademarks by the Distributor shall be solely as a licensee of the company. Distributor expressly recognizes and agrees not to contest the Company or its affiliates, ownership of the Trademarks.
Section 6.2 Use of Trademarks. Distributor may use only such of the Trademarks as the Company may authorize and only in such manner as the Company may authorize, and the decisions of the Company on all matters concerning the Trademarks shall be final and conclusive, and not subject to question by the Distributor. The Distributor shall not take, nor shall he knowingly permit, any action which may in any way prejudice or harm the Trademarks, or the Company''s ownership thereof. The Distributor shall not use, nor shall it authorize any person, partnership, corporation or other entity to use, any of the Trademarks as part of a corporate, business or firm name. The Distributor shall not use the Trademarks in any way which might suggest that the Distributor is an agent, employee, partner or joint venturer of, or otherwise affiliated with, the Company and shall not use any of the Trademarks in any manner so as to suggest that the Distributor is the Company''s authorized distributor for any products of the Company other than the Products as herein defined.
Section 6.3 Obligations Upon Termination. Upon termination of this Agreement, for whatever cause, the Distributor shall abandon at once all use of the Trademarks, and shall not thereafter use in any manner whatsoever any of the Trademarks.
Section 6.4 Protection of Trademarks. The Company (or its affiliates), shall have sole and exclusive right to protect and defend the Trademarks at its sole cost and expense and shall have the sole and absolute discretion as to how to protect and defend and whether or not to protect and defend the Trademarks. The Company shall not be liable to the Distributor for any loss or damage suffered by the Distributor as a result of the use of the Trademarks, or as a result of any litigation or proceeding involving the Trademarks, or as a result of any failure by the Company to protect or defend the Trademarks. The Distributor shall cooperate fully with the Company, its affiliates in the defense and protection of the Trademarks and shall promptly and fully advise the Company of any use in the Territory of which Distributor has knowledge of any trademark or other mark infringing upon any of the Trademarks.
ARTICLE VII LOCAL LAWS第七条 本地法律
Section 7.1 Local Laws. The Distributor shall sell and distribute the Products in compliance with all national, state, municipal, local and other governmental laws, decrees, ordinances, rules, orders, regulations and charges.
ARTICLE VIII LOCAL FEES AND TAXES第八条 地方税费
Section 8.1 Local Fees and Taxes. The Distributor shall, at the Distributor''s own cost and expense obtain all licenses, permits and other authorizations to conduct its business and for shipment to or from the Distributor of Products, equipment, and all other materials required for the selling and distributing of the Products, without any responsibility on the part of the Company with respect to such licenses, permits or authorizations. Distributor also agrees to pay all applicable taxes, licenses, fines and fees relating to Distributor''s business and its purchase and sale of Products hereunder.
ARTICLE IX LEGAL RELATIONSHIP AND INDEMNIFICATION
Section 9.1 Legal Relationship and Indemnification. Nothing in this Agreement shall create or be deemed to create any relationship of agency, employment, partnership, or joint venture between the Distributor and the Company. Distributor shall assume full responsibility and liability for, and shall indemnify and hold the Company harmless from, any loss, injury, or damage (including expenses and reasonable attorneys'' fees) resulting from, or claimed to result from, any act or omission on the part of the Distributor.
ARTICLE X ASSIGNMENT第十条 转让
Section 10.1 Assignment of Rights or Obligations. Distributor may not sell, assign, transfer, pledge, lease, license, or in any other way or manner encumber or dispose of any of its rights or obligations hereunder, either in whole or in part, nor shall said rights or obligations pass by operation of law or in any other manner without the prior written consent of the Company. The Company''s right to withhold such consent shall be absolute and unqualified. If this Agreement is in any way assigned or transferred by the Company or if it is in any way assigned or transferred by the Distributor upon the prior written consent of the Company as aforesaid, then this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties.
Section 10.2 Transfer of Stock or Securities. Neither Distributor nor any other person shall sell, assign, transfer, issue, reissue, pledge or otherwise dispose of or encumber, whether by operation of law or otherwise, without the prior written consent of the Company, which consent in the Company''s absolute and unqualified discretion may be withheld: (i) If Distributor is a partnership, any partnership interest in Distributor; or (ii) if Distributor is a corporation, any or all of the Distributor''s stock, and/or securities with voting rights and/or certificates of indebtedness with voting rights (whether or not such stock, securities or certificates or indebtedness are issued or outstanding at such time) is such transactions either singly or when aggregated with all previous such transactions shall or may cause ______________ and members of _____ immediate family to own less than fiftyone (51) percent of the outstanding voting stock of the Distributor or have less than fiftyone (51) percent of the effective voting power over the Distributor. Distributor hereby agrees that its stock shall at all times during the terms hereof bear a legend which states that its transferability is subject to the terms hereof. Distributor further warrants and covenants that its stock ownership (or partnership interest as the case may be) is now and shall be as of the effective date hereof.
ARTICLE XI TERMINATION第十一条 协议终止
Section 11.1 Termination by Distributor. Distributor may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to the Company.
经销商终止。经销商随时可以终止本协议,无论有无原因,但要提前三十 (30) 天书面通知公司。
Section 11.2 Termination by the Company. Upon the occurrence of any one or more of the following events, in addition to all other rights and remedies, including the right to damages, the Company shall have the right, in the Company''s discretion, to terminate this agreement immediately by giving written notice thereof to the Distributor:
(a) Distributor''s failure to pay any amounts due hereunder or under any other agreement between the Company and Distributor at the time such amounts become due.
(b) Distributor''s breach or failure to perform of any other covenant, obligation, warranty, term or condition hereof or Distributor''s failure to adhere to any established written Company policy which is applicable to all or substantially all of the Company''s distributors and which is in its terms mandatory, if Distributor fails to cure any such breach or failure within thirty (30) days after the Company gives written notice thereof to the Distributor, provided that no such notice to cure need be given if the Company has previously given the Distributor notice to cure with respect to a breach of or failure to perform of the same covenant, obligation, warranty, term, condition or policy on at least two previous occasions, whether or not Distributor has in fact cured on such occasions.
(c) The discontinuation, without cause, in whole or in substantial part of distribution of the Products by the Distributor, for any reason whatsoever (except for normal seasonal variation in the sale of the Products) for a period of more than sixty (60) days.
(d) The insolvency of the Distributor; or assignment by the Distributor for the benefit of creditors; or the filing of a voluntary bankruptcy or reorganization petition by the Distributor; or the failure of the Distributor to vacate an involuntary bankruptcy or reorganization petition filed against the Distributor, within thirty (30) days from the date of such filing; or the failure of the Distributor to vacate the appointment of a receiver or a trustee for Distributor, or for any part or interest of the Distributor''s business, within thirty (30) days from the date of such appointment; or the failure of the Distributor to vacate, set aside, or have dismissed any insolvency proceeding under any law governing, or applicable to the Distributor within thirty (30) days from the date of the commencement of any such proceeding.
(e) The effective loss by the Distributor of management or control of the Distributor''s business by virtue of any law, decree, order, rule, regulation, ordinance, foreclosure or similar cause and failure to restore such management or control to Distributor within thirty (30) days.
(f) The failure by Distributor to achieve the level of sales for the Products as stated in Exhibit "E" in the Territory, unless such failure is substantially caused by the failure of the Company to supply a sufficient amount of Products with reasonable promptness or by any breach of this Agreement by the Company.
Section 11.3 Right to Discontinue Supply. Upon the happening of any one or more of the events specified in Section 11.2 hereof or if the Company reasonably believes that Distributor may not have the financial ability to pay for the Products ordered, then the Company shall also have the right to discontinue supplying the Distributor with Products and other materials for such length of time as the Company may in its sole judgment deem necessary, without terminating this Agreement and without thereby prejudicing the Company''s rights to terminate this Agreement for the same cause or for any one or more other causes.
Section 11.4 Partial Termination. If Distributor fails, with respect to any or all of the Products in any or all parts of the Territory, either to perform its duties or covenants hereunder or to achieve the level of sales in Section 11.2(f) hereof, the Company may, instead of terminating this Agreement altogether, sell any or all of such Products to one or more other persons (including but not limited to Distributor''s existing customers), in any or all of such parts of the Territory and, in addition or in the alternative, may withdraw the Distributor''s rights to sell any or all such Products in any or all such parts of the Territory.
Section 11.5 Effect of Termination. Termination or expiration of this Agreement for any reason shall not impair the obligation of the parties to pay any and all amounts payable hereunder at the time such amounts are or become due. Distributor''s sole remedy for Company''s breach of Agreement shall be termination of the Agreement.
终止效力 无论何因导致本协议的终止或届满，均不得减少协议双方偿还应付到期款项的义务。 经销商因公司违约的唯一救济应是终止协议。
Section 11.6 Option to Repurchase. Should this Agreement be terminated for any cause whatsoever, the Company shall have the option to purchase from the Distributor, and the Distributor shall, upon the exercise of such option by the Company, sell to the Company, any part or all of the Distributor''s labels, containers, cases, cartons, mixtures, ingredients and Products at the invoice price thereof to the Distributor, less a 40% handling charge and a reasonable allowance for depreciation, deterioration and obsolescence.
ARTICLE XII MISCELLANEOUS第十二条 杂项条款
Section 12.1 Costs of Enforcement. In the event that Company initiates legal action (including both trial and appellate proceedings) to enforce its rights hereunder, Company shall recover from the non-prevailing party his or its reasonable litigation expenses (including, but not limited to, reasonable attorney''s fees) of all such proceedings.
Section 12.2 Notices. Any notices required to be given under the terms of this Agreement shall be addressed to the parties at the following addresses, or at such other address designed in writing by the party to receive notice:
Any party by written notice to the other parties may change the address or the persons to whom notices or copies thereof shall be directed.
Notices shall be either (1) personally delivered (including delivery by Federal Express or other courier services) to the address set forth above, in which case they shall be deemed delivered on the date of delivery; (2) sent by Western Union Telegram, in which case they shall be deemed delivered on the date Western Union delivers it telephonic communication; (3) sent by certified mail, return receipt requested, in which case they shall be deemed delivered on the date shown on the receipt unless delivery is refused or delayed by the addressee, in which event they shall be deemed delivered on the date of the deposit in the U.S. Mail. Notices or communications to or from a party''s attorney will be deemed to be or from the party.
通知应按以下任意方式 (1) 亲自传递(包括联邦快递或者其他快递服务) 至上列地址，在这种情况下投递当日视为送达；(2)通过西联电报，此种情况西联发出电话传送的日期视为送达；(3)保证邮件寄送，要求回执，此种情况下以回执上显示日期为送达，除非被受信人拒收或延误，则邮件的送达日期被确认为在美国邮局存放的日期。如果是发给或者来自当事人律师的通知或者通信视同发给或者来自该当事人
Section 12.3 Acceptance by Telecopier. Either party may demonstrate its execution or acceptance of this Agreement by facsimile transmitted via telecopier showing the transmitting parties'' signature thereon. Such a facsimile, once received by the other party, shall bind the transmitting party to the same extent as would delivery of this Agreement (or a counterpart hereof) containing the parties'' actual signature.
Section 12.4 Construction. The parties acknowledged that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment or exhibits thereto.
Section 12.5 Waiver. The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct.
Section 12.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof, and supersedes all prior memoranda, correspondence, conversations and negotiations.
Section 12.7 Modifications. This Agreement cannot be altered or amended except by an instrument in writing signed by both parties.
Section 12.8 Specific Performance. In the event of a breach or threatened breach by Distributor of any of the provisions of this Agreement, Corporation, in addition to and not in limitation of, any other rights, remedies, or damages available to Company at law or in equity, shall be entitled to a permanent injunction in order to prevent or restrain any such breach.
Section 12.9 Choice of Law. This Agreement and the performance hereunder and all suits and special proceedings hereunder shall be construed in accordance with the laws of the State of Florida.
Section 12.10 Forum. All actions under this Agreement shall be taken in a court of competent jurisdiction in Volusia County, Florida and no party shall advance a position that such forum is improper or inconvenient.
受理法院 所有本协议下的诉讼均应在佛罗里达Volusia 县的有管辖权的法院中进行,任何一方不得提出一个位置以认为该法院不合适或不方便。
Section 12.11 Invalid Provisions. The invalidity or unenforceability of a particular provision of this Agreement shall not affect the other provisions hereto, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
Section 12.12 Legal Expenses. Each of the parties hereto agrees to bear its or their own expenses relating to the negotiation for and preparation and review of documents leading to, as well as this Agreement, whether or not the transaction contemplated hereby is consummated.
Section 12.13 Headings and Terminology. The headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The specific terms that are defined in various provisions of this Agreement shall apply throughout this Agreement (including, without limitation, each exhibit hereto unless expressly indicated otherwise).
Section 12.14 Counterparts. This Agreement may be executed in several counterparts, and each executed copy shall constitute an original instrument, but such counterparts shall together constitute but one and the same instrument.
Section 12.15 Confidentiality. The terms and conditions of this Agreement are to be held in strictest confidence and are not to be disclosed by the Representative to any third party other than appropriate Company personnel.
Section 12.16 Limitations. The word "including" in this Agreement, when followed with a listing, shall mean including, without limitation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above mentioned by their representatives, who personally attest that they are duly authorized to enter into this Agreement.
WITNESSES: COMPANY: 见证人 公司
ABC, INC. ABC 公司
Its President （董事长）
Its President （董事长）
EXHIBIT A; TERRITORY 附件一 区域
Per Section 1.2 of the Distribution Agreement, Distributor''s Territory is: Mainland China
EXHIBIT "B"; PRODUCTS 附件二 产品
Per Section 3.1 of the Distribution Agreement, Distributor''s Products are those attached hereto.
EXHIBIT "C" - TRADE SHOWS 附件三 展会
Per Section 4.1 of the Distribution Agreement, Distributor shall go to the following trade shows:
As Available 如果可行
EXHIBIT "D" - TERMS OF PAYMENT 附件四 支付条款
Per Section 5.1 of the Agreement, terms of payment are as follows:
Wire transfer to our Bank: Wachovia Bank, Jacksonville, FL
电汇至我方银行Wachovia Bank, Jacksonville, FL
All orders, including the opening order must be paid for in advance. After one year, depending upon Distributor performance, terms of payment may be renegotiated by Company.
EXHIBIT "E" - PURCHASES 附件五 购买
Per Section 11.2(f) of the Agreement, Distributor shall make the following purchases per quarter: OPENING ORDER = USD $62,500
根据第11.2(6)规定，每季度经销商应按以下购买 开始定单 62500美元
Thereafter, the purchases per year shall be 25 percent more than the purchases of the prior year for a period of 4 years and thereafter 20 percent.
NOTE: All BBB orders placed by distributor for less than USD $10,000 are subject to a 10% surcharge.