This Contract is made and entered into between本合同签署方为
ACL Nutritional Product International Inc (Hereinafter referred to as supplier)
ACL 保健品国际公司 （下称：供货商）
Organic Living International Consultation Inc （Hereinafter referred to as distributor）
TABLE OF CONTENTS目录
ARTICLE 3第三章PURCHASE AND SALE购销PRICE价格 PAYMENT付款INSPECTION检查 DELIVERY交货
ARTICLE 5第五章PRODUCT MODIFICATIONS产品更新 NEW PRODUCTS新产品
ARTICLE 7第七章PATENTS专利 TRADEMARKS商标 TRADENAMES商品名称
ARTICLE 8第八章SALES PROMOTION促销 TECHNICAL ASSISTANCE技术支持
ARTICLE 12第十二章TERM AND TERMINATION期限及终止
ARTICLE 13第十三章FORCE MAJEURE不可抗力
ARTICLE 14第十四章GENERAL PROVISIONS一般条款
This DISTRIBUTION AGREEMENT (this Agreement) is entered into on 25 January 2011,
Organic Living International Inc, a company incorporated under the laws of British Virgin Islands, and having its principal place of business, Hongkong Special Administrative Region, the People’s Republic of China (the “Distributor”);
Organic Living International Inc,一家根据英属维尔京群岛的法律所组建的公司（经销商），其经营地为中华人民共和国香港特别行政区(下称：经销商)。
ACL Nutritional Product International Inc, a company manufacturing nutritional eatable products incorporated under the laws of America and having its principal place of business at IL 60025, United States of America (the “Supplier”).
1.The Supplier is and has been engaged in the original creation, design, production, manufacturing and marketing of nutritional eatable products.
2.The Supplier desires to expand into certain markets in Asia and accordingly appoints the Distributor to be the exclusive distributor of the Products in the Territories covering these markets.
THE PARTIES AGREE AS FOLLOWS:双方一致同意以下事项：
Words below shall have the following meanings when used in this Agreement, unless the context requires otherwise:
1.1"Customer(s)" shall mean intermediate and/or ultimate purchaser(s) (including wholesale re-sellers, retail distributors and sub-distributors) and user(s) of the Products who acquires, buys or takes delivery of the Products from the Distributor, as the case may be;
1.2"Individual Contract(s)" shall mean individual contract(s) to be made pursuant to the provisions of Article 3 of this Agreement;
1.3“Delivery Point” means the facilities of the Distributor or the destination specified in the Distributor’s Purchase Order;
1.4"Parts" shall mean replacement parts for, or components of, the Products;
1.5"Products" shall mean, as applicable, the ingredients, food and beverage products, goods, accessories and/or Parts and/or other products as specified in Article 5 or as listed in Exhibit A of this Agreement;
1.6"Purchase Order" shall mean the Distributor's standard form of purchase order prevailing from time to time;
1.7"Territory" shall mean the countries, geographical regions, territories specified in Exhibit D of this Agreement;
1.8"Trademarks" shall mean all trademarks, logos, service marks, trade names and emblems, whether or not registered, utilized in connection with the Products (including any abbreviation or modification of the same).
2PRODUCTS AND APPOINTMENT 产品与指定经销
2.1The Main products of Distribution 主要经销产品
健身胶囊 Power Capsule
The main ingredients of product include as below该产品主要成分为：
Guarana Seed Exrract 瓜那拉
Western Ginseng Root Powder 西洋参
Damiana Leaf Powder 达米草
减肥保健胶囊 Noon Light Capsule
The main ingredients of product include as below该产品主要成分为：
Appointment and Acceptance经销商的指定与接受
2.2 The Supplier appoints the Distributor, and the Distributor accepts the appointment, as the sole and exclusive distributor for the sale, marketing and distribution of the Products for and in the Territory.
Sale and distribution in the Territory地域内的销售及分销
2.3 During the term of this Agreement, the Supplier (including its directors, officers, subsidiaries, associate companies or undertakings) shall not directly or indirectly:
(i)sell, distribute, market, lease or otherwise make available the Products within the Territory except through the Distributor; or
(ii)grant a license, franchise or any right to anyone other than the Distributor for the sale, distribution, marketing, leasing, production, manufacturing and/or packaging of the Products in and within the Territory.
2.4The Supplier shall promptly refer to the Distributor all inquiries for the Products originating in or for ultimate delivery to or consumption or use in the Territory.
Relationship between the Supplier and the Distributor 供货商与经销商的关系
2.5 The relationship between the Supplier and the Distributor is that of seller and buyer.
Nothing in this Agreement shall be construed or deemed to make the Parties joint venturers or partners or to constitute either Party an agent or employee of the other.
2.6Neither Party shall at any time make any representation, either in writing or orally, that it is an agent, partner or joint venturer with the other.
Neither Party shall have the right, power or authority to assume or create any obligation, express or implied, on behalf of the other.
3PURCHASE AND SALE; PRICE; PAYMENT; INSPECTION; DELIVERY
3.1 The sale and purchase of the Products shall be based on the terms and conditions set out in the applicable Purchase Order.
Acceptance of Purchase Order订购单之接受
3.2 An Individual Contract for the Products shall be deemed to have been made when the Distributor receives the Supplier's acceptance of the Purchase Order, such acceptance being indicated either by:
(i)the Supplier's countersignature on the Purchase Order;
(ii)the Supplier's issuance of a sales confirmation or similar document; or
(iii)the Supplier's delivery of the Products, 供货商已交付了该产品；
provided that if any terms in such sales confirmation or similar document conflict with, or supplement, the terms of this Agreement or the Purchase Order, such conflicting or supplemental terms shall be deemed null and void and the provisions of this Agreement and the Purchase Order shall govern unless the Supplier’s sales confirmation or similar document has been countersigned and accepted by the Distributor.
3.3In any case, each Purchase Order shall be deemed to have been accepted by the Supplier unless the Supplier rejects the order by written notice within fourteen (14) days after the Distributor has issued the Purchase Order.
Prompt and timely supply及时供货
3.4 The Supplier shall use its best efforts to timely fulfill all the Distributor’s orders and shall not unreasonably reject such orders.
Price and payment terms价格及付款条件
3.5 The price and payment terms for the Products set out in each Individual Contract shall be in accordance with the price list and payment terms as provided in Exhibit B and Exhibit C of this Agreement respectively.
Changes to price and payment terms价格及付款条件的修改
3.6 The Parties may amend such price list and payment terms from time to time upon mutual agreement in writing, to enable both Parties to realize fair profits on their sales by taking into consideration the normal practices of the trade, if any, and competitive circumstances existing from time to time, provided always that the Supplier gives the Distributor at least ninety (90) days advance notice of any price changes or revision to payment or delivery terms.
3.7 For the purpose of securing orderly shipments, the Distributor shall endeavor to submit to the Supplier each Purchase Order at least thirty (30) days prior to the requested shipment date of the Products, provided that if the Distributor does not submit the Purchase Order within such time, those orders shall nonetheless be binding upon the Supplier unless the Supplier promptly notifies the Distributor of its rejection of the order for the delivery of the Products within such stipulated time frame.
Pari passu treatment平等权利
3.8The Supplier represents that the terms and conditions of this Agreement are at least as favorable to the Distributor as the terms and conditions which the Supplier is currently offering to other distributors or similar entities.
3.9In the event that the Supplier should offer to any other distributors or similar entity terms and conditions which are better or more favorable than the terms and conditions of this Agreement, the Supplier agree to promptly notify the Distributor in writing of such better or more favorable terms and offer those better or more favorable terms and conditions to the Distributor.
3.10Upon reasonable notice to the Supplier, the Distributor shall have the right to inspect, randomly or otherwise, the Products at the place of production, manufacture or packaging prior to the packing of the Products.
The Supplier shall timely notify the Distributor of the production, manuafacturing or packaging schedules for the Products and of the readiness of the Products for packing.
3.11Inspection of any Products by the Distributor shall not constitute acceptance of those Products subject to such an inspection nor shall it constitute a waiver of any claim or right which the Distributor or Customers may have with respect to those Products.
3.12The Supplier shall deliver and the Distributor shall take delivery of the Products on F.O.B. Delivery Point basis.
3.13Upon such delivery, title and risk of loss to the Products shall pass to the Distributor.
In case under any Individual Contract, the Supplier is required to arrange for the shipping, the Supplier shall ship the Products by any established route in a properly equipped seaworthy vessel owned and/or operated by a first class shipping company satisfactory to the Distributor.
Transshipment and partial shipment shall not be allowed without the prior written consent of the Distributor.
4.1In case under any Individual Contract Supplier is required to provide marine insurance, such insurance shall be provided with first class insurance companies satisfactory to the Distributor for an amount equivalent to one hundred and ten percent (110%) of the invoice amount, covering Institute Cargo Clause "All Risks" and "War and S.R. & C.C. Risks", unless otherwise agreed.
4.2Any extra costs of insurance incurred by reason of vessel's age, flag, classification or ownership shall be for the Supplier 's account.
5PRODUCT MODIFICATIONS; NEW PRODUCTS产品的更新；新产品
5.1The Supplier shall notify the Distributor sufficiently in advance (no less than ninety (90) days) of any planned or proposed modifications in the composition, design, ingredients, production method, functionality or specifications or of any withdrawal or discontinual of any Products.
5.2Any new products (and component of such products) developed or handled by the Supplier in the future which are similar to or competitive with the Products shall be included in the term "Products" and shall be subject to the terms and conditions of this Agreement, other than the price which shall be mutually agreed.
6.1The Distributor is authorised and granted the right to appoint sub-distributors within the Territory pursuant to terms determined by the Distributor at its own discretion.
7PATENTS, TRADEMARKS AND TRADENAMES专利、商标及商品名称
Right to use使用权
7.1The Supplier grants to the Distributor and its sub-distributors the right and/or a license to use the Trademarks in connection with the sale, marketing and distribution of the Products in the Territory.
7.2The Distributor shall be entitled, during the term of the distributorship or the term of this Agreement (and any extension of the same), to advertise and hold itself out as the authorised sole and exclusive distributor of the Products in the Territory.
7.3At all times the Distributor may use the Trademarks in all advertisements, marketing and/or business development activities relating to the Products, packaging materials, labels, marketing materials and any other promotional materials for the Products.
Use of the Distributor’s own trademarks使用经销商自己的商标
7.4At its sole discretion, the Distributor may also apply and adopt its own trademarks in promoting, distributing, and/or selling the Products without the prior consent of the Supplier.
7.5If the Supplier adopts any other trademarks, logo, service mark, tradenames and the like in connection with the Products in the future, the same shall be included in the definition of "Trademarks".
Trademarks in the Territory地域内商标
7.6 If requested by the Distributor, the Supplier shall at its cost duly register and keep effective in the Territory all registerable Trademarks.
7.7The Distributor shall, at its option, have the right, in the Distributor’s name and at its own expense, to duly register and keep effective in the Territory all registerable Trademarks relating to the Products (inclduing, as the case may be, any exclusive license granted to the Distributor and its sub-distributors with respect to such registerable Trademarks).
8SALES PROMOTION; TECHNICAL ASSISTANCE促销及技术支持
8.1Distributor agrees to use its reasonable efforts to promote the sale of the Products in the Territory.
Reports on sale销售报告
8.2Upon the Supplier's request, the Distributor shall furnish the Supplier with bi-annual reports relating to the sale of the Products.
Furnish of information提供信息
8.3Each Party shall furnish the other Party with information which may be necessary or helpful with respect to the sale, distribution, marketing and promotion of the Products.
Provision of samples提供样品
8.4Upon the Distributor’s request, the Supplier shall provide to the Distributor, free of charge, a reasonable number of samples, catalogs, brochures and other promotional materials which may be useful to promote the sale, marketing and/or distribution of the Products in the Territory.
8.5The Distributor shall have the right to translate any such materials into other languages and shall own the copyright in any such translations.
8.6The Distributor shall have the right to translate any label of the Products and/or create new labels as may be required by any applicable regulations in the Territory for the sale and distribution of the Products or which may be conducive to the promotion of such Products in the Terrtory.
The Distributor shall own the copyright in such newly vreated labels or translation of the labels.
New marketing materials specifically created by the Distributor for use in the Territory
8.7The Distributor shall have the right to create and design new promotional and/or marketing materials relating to the Products for use in the Territory and shall own the copyright in such materials.
Assistance by the Supplier供货商的技术支持
8At the Distributor’s request, the Supplier shall at no costs to the Distributor, provide the Distributor with:
(i)such advice and information as may be desirable for a full understanding of the Products; and
(ii)training for a reasonable period of time for a reasonable number of personnel assigned or nominated by the Distributor.
Sales Leads in the Territory
8The Supplier shall refer to and provide direct relevant sales leads within the Territory originating from enquiries, trade events, the Internet and other sources to the Distributor.
9.1 The Supplier warrants that it: 供货商特作出下列保证
(i)is the legal and beneficial owner of the Trademarks;
(ii)has the right to enter into and perform its obligations under this Agreement; and
(iii)has the right to appoint the Distributor as the sole and exclusive distributor of the Products in the Territory.
9.2The Supplier warrants to the Distributor and to the Customers that the Products shall:
(i)strictly conform to all legal requirements, governmental regulations and applicable health, hygene, safety and environmental standards in the Territory;
(ii)strictly conform to and reflect the nutritional facts, specifications, drawings, data and samples of the Products;
(iii)fairly and correctly reflect the health, wellness or (if any) medical claims of the Products (if any);
(iv)be free from defects in design, materials, workmanship, production, instruction manuals, labeling, health and safety warning, instructions or the like;
(v)be of merchantable quality and fit for the ordinary purposes for which the Products are used and the Distributor's as well as the Customers' intended use in accordance with the Products instructions and marketing materials;
(vi)suitable and fit for human consumption or application externally (as the case may be); and
(vii)shall be packed properly and delivered timely.
9.3This warranty shall survive any inspection, delivery, acceptance or payment by the Distributor.
The Distributor shall have no obligation to provide any warranty to the Customers with respect to the Products.
9.4 With respect to any and all claims made by the Distributor on the above-mentioned warranty for a period of twelve (12) months from the date of delivery of the Products to the Distributor, or twenty four (24) months from the production date of the Products, whichever is longer, the Supplier shall, at the Distributor’s option, either promptly replace (with freight, insurance and all charges prepaid to the Customer's location on the Supplier’s account) or refund the purchase price of any Products which do not comply with the Supplier's warranty.
9.5The Supplier shall reimburse the Distributor for any and all costs, expenses, losses and damages arising in connection with the breach of this warranty.
9.6The Supplier agrees and undertakes that the Products that it ships or supplies to the Distributor shall not expire or shall be fit for human consumption or application at least twelve (12) months after receipt of the same Products by the Distributor.
9.7The Supplier represents that it shall promptly and diligently comply with all its warranty obligations.
9.8The obligations in this Article shall survive the expiration or termination of this Agreement or the distributorship.
10.1The Supplier shall indemnify and hold the Distributor, its subsidiaries and affiliates and their directors, officers and employees harmless from any and all losses, damages, obligations, liabilities, costs and expenses (including, without limitation, legal fees and expenses) arising out of or in connection with:
(i)any claim of a third party regarding any breach of warranty or representation or any defect in the design, materials, production or workmanship of the Products regardless of whether such defect is caused by the negligence of the Supplier;
(ii)any claim of a third party with respect to the Products, including, without limitation any claim on infringement of trademarks, trade names, logos, emblems, designs, patents, copyrights and other intellectual property arising out of or in connection with the Distributor’s sale and distribution of the Products in the Territory; and
(iii)any claim, suit or action of a third party for sickness, injury to or death of any person or property damage or any other loss suffered or allegedly suffered by any person or entity and arising out of or otherwise in connection with the Products sold by the Supplier to the Distributor.
10.2In complying with the provisions of clause 10.1, the Supplier shall actively and at its own expense defend against any such claim, provided that if, in the Distributor’s sole opinion, the Supplier fails or is not in a position to mount an adequate defense to such claim, the Distributor shall have the right to so defend or, at its sole discretion, to make any settlement of such claim, and the Supplier shall cooperate with such efforts (including, without limitation, provide the Distributor with all relevant information, documents, data, materials and witnesses as may be required or requested by the Distributor which in the the Distributor’s opinion are necessary for such defense to such claim) and shall indemnify the Distributor as provided in clause 10.1.
10.3The Supplier shall, upon the Distributor’s request, cooperate with the Distributor to recall any and all Products in the Territory in the event such recall is required by law or for safety reasons or is considered necessary or prudent at the Distributor’s sole discretion.
10.4In case any claim is made (whether or not against the Distributor, and whether or not made in the Territory) in relation to a product which is the same or similar to the Products, then notwithstanding anything else in this Agreement:
(a)the Supplier shall, at the Distributor’s request, stop delivery of the Products to the Distributor, and
(b)the Distributor shall have no obligation to purchase or take delivery of the Products until the Distributor shall be satisfied that:
(i)the Products are free from such alleged claim; and
(ii)all causes of such claim have been completely corrected or eliminated, and
(c)If the Supplier is unable to satisfy the Distributor in such manner as stipulated in the above Paragaraph (b) within 30 days after such claim is made, the Distributor may upon written notice to the Supplier terminate this Agreement and/or any Individual Contract without any liability.
Upon such termination, the Distributor shall be released from any obligation to purchase or accept delivery of any Products remaining undelivered under any Individual Contract, and the Supplier shall, at the Distributor’s request, buy-back any and all the Distributor's stock of the Products at the same price as paid by the Distributor and at the place where such Products are located.
10.5he Supplier’s indemnity obligations shall survive the expiration or termination of this Agreement.
11.1Neither Party shall disclose to any person, firm or corporation the existence of this Agreement or any knowledge or information pertaining to, or discerned in connection with, this Agreement or the conduct or details of the business of the other Party, unless and until such knowledge or information becomes part of the public domain.
11.2 It is agreed that the Distributor may disclose such information to its agent, sub-distributors and Customers which may be necessary in connection with the performance of this Agreement, or if required by law or regulation, to relevant government authorities or agencies.
11.3 If at any time the name of a Customer of the Distributor is revealed or stated on supporting documentation such as an Individual Contract or other documentation (including but not limited to a Purchase Order, confirmation, bill of lading, delivery note and payment instruction), this information remains confidential.
The Distributor remains as the customer and contact point of the Supplier for the sale, marketing and distribution of the Products in the Territory and the Supplier undertakes not to contact (directly or indicrectly) any Customer of the Distributor.
12TERM AND TERMINATION期限及终止
12.1This Agreement shall commence on the date of this Agreement and shall have an initial term of five (5) years.
12.2This Agreement shall be automatically renewed and/or rolled over for successive terms of five (5) years each, unless not less than one hundred and eighty days (180 days) prior to the expiration of the then current term, either Party gives the other Party written notice terminating this Agreement upon the expiration of the then current term.
12.3This Agreement may be terminated by either Party upon written notice to the other Party, if
(i)the other Party fails to fulfill its material obligations under this Agreement or under any Individual Contract and such failure is not cured within forty (45) days after its receipt of a written notice requesting a remedy of such a failure;
(ii)the other Party becomes insolvent or a trustee, receiver or similar person is appointed with respect to any of the assets of such Party, or if such Party discontinues its business, or
(iii)there is a substantial change in the ownership or control of the other Party.
12.4Termination of this Agreement or the non-renewal of the distributorship shall not relieve either Party of its obligations incurred prior to the termination or the non-renewal, or any rights or obligations which by their terms survive or take effect upon termination.
12.5Regardless of the reasons for termination of this Agreement, all outstanding credits and liabilities under the warranty provisions under this Agreement shall continue to remain in force.
The Distributor shall have the option to accept delivery under, or cancel, in whole or in part, any Individual Contracts which are outstanding at the time of termination of this Agreement.
Notwithstanding termination, the Distributor may continue to sell any unsold Products and use the Trademarks in connection therewith until all unsold stocks of the Products held by the Distributor are cleared.
12.6 All goodwill developed within the Territory in connection with the sale and distribution of the Products shall remain the property of the Distributor.
12.7 Neither Party will be liable to the other Party, as a result of a termination, for compensation, reimbursement or damages on account of loss of prospective profits from anticipated sales, expenditures, investments, leases or any other commitments in connection with the business or goodwill of the Supplier or the Distributor.
12.8 Either Party’s termination of this Agreement will be without prejudice to any other remedies that each Party may have hereunder or under applicable law.
13.1Neither Party shall be responsible for nonperformance or delay in performance under this Agreement and/or any Individual Contract due to acts of God, civil commotion, war, terrorist attack or disturbance, riots, strikes, lockouts, severe weather, fires, explosions, governmental actions or other similar causes beyond the control of such Party, provided that the Party so affected shall promptly give notice to the other Party and shall continue to take all actions reasonably within its power to comply herewith as fully as possible.
13.2In any event the time for performance under this Agreement shall only be extended for the duration of the delay.
Should such conditions continue for more than forty five (45) days, the Distributor shall have the right to terminate all or any part of this Agreement and/or any Individual Contract by giving notice to the Supplier without any liability.
14.1Except as provided herein, this Agreement is not assignable by either Party in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld, and any attempted assignment or participation without such consent shall be null and void, provided that the Distributor may assign or transfer its rights under this Agreement to any of its subsidiaries, parent company and sub-distributors, without the Supplier's consent but with written notice to the Supplier.
14.2Any notice made in relation to this Agreement or performance under this Agreement shall be in English and sent by prepaid registered airmail (return receipt requested), telefax or telex (confirmed with a copy by prepaid registered airmail) to the following addresses or such other address as the intended recipient previously shall have designated in writing:
14.3All notices shall be made upon receipt and shall be deemed received, if sent by airmail seven (7) days after the date of posting, and if sent by telefax or telex on the following business day.
Rejection or other refusal to accept or the inability to deliver because of change of address of which no prior notice was given shall be deemed to be receipt of the notice sent.
14.4This Agreement shall be governed by and construed in accordance with the laws of America and shall be subject to the non exclusive jurisdiction of the courts in.
14.5The trade terms under this Agreement and any Individual Contract, unless the context requires otherwise, shall be governed by and interpreted under the provisions of the International Rules for the Interpretation of Trade Terms (INCOTERMS) and its Supplements prevailing at the shipment date of the subject Products.
14.6Any dispute, controversy and/or difference which may arise between the Supplier and the Distributor out of or in relation to or in connection with this Agreement and/or Individual Contract, or the breach or non-performance of this Agreement or Individual Contract , which cannot be settled by mutual accord without undue delay, shall be submitted to non binding arbitration in accordance with the commercial arbitration rules of XXX
In the event that the dispute cannot be satisfactorily resolved through arbitration within sixty (60) days after submission either Party may then seek judicial relief.
14.7The provisions of this Agreement shall be deemed to be severable, and the invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
14.8Any failure by either Party to enforce at any time any of the provisions of this Agreement and/or any Individual Contract shall not be construed to be a waiver of such provisions or of the right of such Party to enforce such provisions at a later time.
14.9The headings are for ease of reference only and are not to be utilized in construing or interpreting this Agreement.
14.10No provision of this Agreement shall be construed against or interpreted to the disadvantage of either Party by any court or governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated such provision.
14.11Whenever the approval or consent of the Supplier is required, such approval or consent shall not be unreasonably withheld.
14.12This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supercedes all prior discussions, agreements, arrangements, and understandings between the Parties with respect to such matter.
No representation, warranty, undertaking or statement not contained in this Agreement shall be binding on either Party.
No amendment or modification of this Agreement shall be binding on the Parties unless made in writing expressly referring to this Agreement and signed by the duly authorized officers or representatives of both Parties.
The Parties executed this Agreement on （）January 2005.