The following standard Requirements shall apply to all Distributors engaged by Nielsen-Massey Vanillas, Inc. and any of its affiliates (“NMV”) and shall be incorporated by reference into any agreement between the parties. If there are any inconsistencies between these standard Requirements and any other agreement between the parties, the separate written agreement shall apply. Capitalized terms herein shall have the meanings defined in the Distribution Agreement between the parties.
DISTRIBUTION
A. Distribution. An approved Distributor may purchase Products directly from NMV and resell the Products to Accounts within the Territory. The purchase price of the Products to the Distributor shall be equal to the price as quoted by NMV. Distributor can then resell the Products to a customer at any price. NMV and Distributor may, from time-to-time, engage in any legally allowable Minimum Advertising Pricing (“MAP”), Resale Price Maintenance (“RPM”), or Manufacturers Suggested Retail Price (“MSRP”), or other legally allowed retail pricing program. Unless otherwise agreed in the Purchase Order, all prices are FCA (Nielsen-Massey facility, Waukegan, Illinois, U.S.A. or Leeuwarden, Netherlands) Incoterms® 2020, NMV’s freight forwarder or freight carrier, Waukegan, Illinois, U.S.A. or Leeuwarden, Netherlands. Distributor shall bear all costs of shipping and delivery, and all other charges or expenses incurred after NMV has placed the Products in the custody of the freight forwarder or carrier including (without limitation) any and all customs and import duties, value added taxes, tariffs, clearance charges, brokers’ fees or other amounts payable in connection with the sale and delivery of the Products to Distributor. In addition, any and all federal, state or local taxes or duties applicable to the Products shall be added to the price stated on NMV’s invoice to Distributor, and shall be paid by Distributor in the same manner, and with the same effect, as if originally added thereto.
B. Purchase Payment to NMV. Unless otherwise agreed in the Purchase Order, all sums due NMV hereunder shall be paid in full via wire transfer in U.S. Dollars, as agreed to by the parties, usually within thirty (30) days from the date of NMV’s invoice to Distributor (the “Payment Date”). Interest will be charged, and shall be payable to NMV, at a rate of one and one-half (1-½%) percent per month (or the maximum amount allowable) on all amounts due that have not been paid in full within fifteen (15) days from the Payment Date. In addition, NMV reserves the right to withhold any further shipment of Products until such time as all overdue sums have been paid in full. Distributor (or its customer) shall also be liable for all costs of collection and reasonable attorney fees incurred by NMV. If Distributor does not pay NMV within forty-five (45) days from the date of NMV’s invoice, NMV shall have the right to terminate the Agreement immediately. Any failure of NMV to terminate the Agreement due to Distributor’s non-payment shall not serve as a waiver of any of NMV’s right to terminate the Agreement for future non-payment and NMV shall retain all rights and remedies available to it hereunder.
C. Customers of Other Brokers and/or Distributors. Orders placed by customers of NMV located outside of the Territory and shipped into the Territory will not cause a commission to accrue to Distributor unless NMV has expressly agreed in writing that under the circumstances Distributor should be compensated.
D. Independent Contractor. Distributor represents that it has its own independently established business which is separate and apart from NMV’s business, and it is an independent contractor and is not an agent, employee, or legal representative of NMV. Distributor is not authorized to do business in NMV’s name, or to obligate NMV in any way. Nothing in the Agreement shall be deemed to create the relationship of employer and employee, master and servant, franchisor and franchisee, partnership or joint venture between the parties. Distributor shall have the exclusive authority to manage, direct, and control the means, methods, techniques, sequences, procedures, and coordination of its performance hereunder and the Distributor shall be exclusively responsible for directing, supervising, compensating, disciplining, discharging, or otherwise dealing with any personnel engaged by it. The Distributor shall be exclusively responsible for compliance with all applicable laws, regulations, or rules with respect to self-employment and/or employment of others, including but not limited to earnings reporting and tax withholding requirements for the Distributor and any personnel engaged by the Distributor.
E. Responsibilities. Distributor will provide and maintain such offices, facilities, and professionally qualified personnel as will enable it to render a high standard of service in the sale of Products to NMV’s customers. Distributor will provide technical support and sales activities on behalf of NMV including joint visits. Distributor will make frequent customer visits and introduce Products to potential customers in the Territory and will establish an order of priority of the customers together with NMV, in order to identify potential customers and a customer structure (i.e., key, medium and small customers). Distributor agrees to devote its best efforts in the development, promotion, marketing, and sale of the Products in the Territory in a lawful, professional manner, maintain and make reports of activity to NMV as herein provided, assist in collection activity when requested to do so, and will cooperate with NMV in any advertising or promotion programs undertaken by NMV with respect to the Products. Distributor undertakes to purchase and sell the Products of NMV only: (a) at the price policy pursuant to paragraphs A and B hereof; (b) subject to the times of delivery fixed by NMV; (c) on the terms of sale and delivery established by NMV; (d) with no other terms of payment other than those established by NMV; (e) subject to confirmation, acceptance, and execution by NMV; and (f) with no other warranties other than as expressed in paragraph J below. These responsibilities may not be assigned or delegated to any affiliates or sub-representatives without NMV’s prior written approval. Advertising and promotional materials relating to the Products, or anyone or more of the Products, must be approved in writing by NMV prior to their release and use by Distributor.
F. Reporting. Distributor shall submit to NMV quarterly marketing and sales reports, competitor information, as well as customer activity reports on a quarterly basis in such form satisfactory to NMV. Distributor shall keep and maintain complete, true, and accurate records concerning the Products, including, without limitation, inventory levels, pricing and sales by Product, customer lists and customer complaints, and promotional expenditures. Such records shall be promptly made available to NMV upon NMV’s prior written or oral notice to Distributor at Distributor’s place of business, or, mutually agreed, by providing a copy of such record to NMV.
G.Expenses. Distributor shall solely bear responsibility for, and shall pay for, any and all expenses and costs necessary to fulfill the obligations of Distributor under the Agreement.
H. Termination. Upon expiration or termination of the Agreement, Distributor shall immediately return to NMV all Confidential Information (as defined in the NDA) and any and all promotional and advertising materials used (or proposed to be used) by, or which are in the possession of Distributor in connection with the distribution of Products.
I. Ownership and Control. Distributor acknowledges that in selecting Distributor, NMV relied in major and essential part on the integrity and ability of the existing ownership, management and principals of Distributor. A change of a controlling interest in the ownership of Distributor or its assets, or in the managerial authority or principals or responsibility of Distributor’s principles, would be a fundamental change in the relationship outside of NMV’s control that would adversely and substantially affect NMV’s interests. Distributor declares that it is not working on behalf of any undisclosed persons with respect to matters covered by the Agreement.
J. Warranties. NMV represents and warrants as follows:
(a) NMV will convey to its customers good title to the Products;
(b) the Products are free of defects and safe for use in the manner intended by NMV for the shelf life of each Product; and
(c) the Products will comply with all applicable laws, rules, and regulations of the United States and the Territory, including (without limitation) the regulatory requirements of the United States Food and Drug Administration.
THE ABOVE WARRANTIES SHALL BE IN LIEU OF AND SHALL EXCLUDE ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR INTENDED PURPOSE. NMV MAKES NO WARRANTY, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS FITNESS OR SUITABILITY FOR INCORPORATION INTO OR MIXING WITH ANY OTHER MANUFACTURERS’ PRODUCTS. SUITABILITY FOR APPLICATION IS THE SOLE RESPONSIBILITY OF THE CUSTOMER.
Among other things, Distributor is not authorized to and is expressly prohibited from extending any warranty or warranties on behalf of NMV to any person or entity. Other than as expressly authorized in writing by NMV. The Distributor shall defend and indemnify NMV from and against any and all claims brought against NMV as a result of the Distributor’s agreement to any warranties, terms or provisions of sale other than those specifically authorized by NMV in writing. Any warranty for the Products run directly from NMV to the customer of the Products and pursuant to the warranty the customer shall communicate directly with NMV regarding any alleged breach of warranty. Distributor shall have no authority to accept any returned Products without NMV’s prior consent.
TERMS AND CONDITIONS OF SALES
1. Orders and Delivery
1.1 Purchase Orders. Any and all orders for the Products shall be made by the Distributor, delivering to the relevant NMV Entity a written purchase order (the “Purchase Order”).
1.2 Acceptance of Orders. The Distributor shall not have authority to accept orders on behalf of NMV or to otherwise obligate NMV. Orders shall be considered accepted and will bind NMV only after acceptance has been confirmed and acknowledged by NMV to the Distributor in writing. NMV, in its sole discretion, reserves the right to reject any order, in whole or in part, solicited by the Distributor within five (5) Business Days from the date the Purchase Order was received by NMV. As used hereinafter, Purchase Orders shall mean only those Purchase Orders that have been accepted by NMV.
1.3 Filling Orders. NMV shall fill all Purchase Orders upon acceptance in accordance with the lead times set out in the Agreement provided, however, that NMV shall not be liable to Distributor in any respect for any failure to ship, or for any delay in shipment of Products where such failure or delay is due, wholly or in part, to an act of God, epidemic, pandemic, accident, riot, war, embargo, unavailability of raw materials, strikes, work stoppages, labor disputes, government interference or to any other cause beyond NMV’s control or without NMV’s fault or negligence. Such interruption of deliveries, or delays, shall not invalidate the remainder of the Agreement, and upon the end of the cause of interruption of (or delay in) the deliveries, deliveries shall resume. Backlogs of Purchase Orders shall be filled in the order in which they were received and accepted by NMV.
1.4 Warehousing. Distributor may provide warehouse space to store Products for sale in the Territory. In such cases, Distributor shall comply with any storage and Product requirements under NMV’s policies and procedures, as amended from time to time.
1.5 Direct Purchases. If Distributor purchases Products directly from NMV for the purpose of resale (Distribution), Distributor shall report to NMV on a quarterly basis the quantity of Products Distributor is holding in its inventory.
2. Account Collection
2.1 Direct Distribution. Distributor shall have sole responsibility and control over collection of funds due from customers in the Territory that Distributor has resold to and shall have full discretion with respect to the collection adjustment or compromise of any account. However, Distributor shall remain liable to NMV for any and all purchases of Products it makes from and to NMV.
SALES & MARKETING POLICIES
• Methods and Means. Except as otherwise provided herein, the Distributor, at its sole expense, shall have the sole right to determine the methods and means of marketing of the Products within the Territory. Advertising and promotional materials relating to the Products must be approved in writing by NMV prior to their release and use by Distributor (such approval not to be unreasonably withheld or delayed). NMV may, but shall not be obligated to, establish general standards for advertising and promotion (“NMV’s General Promotional Standards”). If NMV establishes General Promotional Standards, NMV shall furnish Distributor with a copy of NMV’s General Promotional Standards, and Distributor agrees to comply with NMV’s General Promotional Standards. Failure to comply in all respects with NMV’s General Promotional Standards or the responsibilities herein stated shall be a material breach of the Agreement by Distributor, entitling NMV, at its option, to withdraw the appointment, reduce the Territory, terminate the Agreement, and to seek any and all remedies hereunder or available at law or in equity.
• Sub-representatives, Agents and Employees. The Distributor shall have the right to appoint such sub-representatives as long as pre-approved in writing by NMV. The Distributor shall have sole discretion to appoint agents and employees for the Distributor’s marketing of the Products in the Territory as shall be deemed appropriate by the Distributor in its reasonable discretion; provided, however, that the Distributor shall be solely responsible for supervising and monitoring the activities of all such persons and entities to ensure compliance with the terms and provisions of the Agreement and the Distributor shall be liable for any breaches caused by all such persons and entities (sub-representatives, agents and employees) of the provisions of the Agreement as though such breaches had directly been caused by the Distributor.
• Support by NMV. NMV agrees to provide the Distributor with such training, technical information, samples, price lists, customer lists, catalogs, and other forms of sales information as may reasonably be requested by the Distributor and which, in NMV’s judgment, are reasonably necessary for the Distributor to market and promote the sale of the Products within the Territory. It shall be the Distributor’s responsibility to thoroughly and carefully review the materials provided by NMV and to participate in any training offered by NMV in order to enable the Distributor to carry out its duties hereunder.
• Amendment. NMV may amend the Sales & Marketing Policies at any time.
INTELLECTUAL PROPERTY RIGHTS
• Intellectual Property. Intellectual Property means any patent, copyright, trademark, trade name, service mark, service name, brand name, logo, corporate name, Internet domain name or industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract (including without limitation license(s) to use specific telephone numbers and/or radio channels/frequencies) relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing. The Distributor may use NMV’s trademarks and copyrighted materials during the term of the Agreement solely in connection with the promotion and sale of the Products and each such use shall inure solely to the benefit of NMV. The Distributor agrees that it shall not adopt a business name, trademark, tradename or logo confusingly similar to any business name, trademark, tradename or logo owned and/or utilized by NMV and the Distributor shall not adopt or use any name which may tend to suggest any agency, joint venture, partnership, shared ownership or business affiliation between the Distributor and NMV. The Distributor acknowledges that NMV is the owner of all trademarks, copyrights, service marks, tradenames, designs, logos, creative materials and other intellectual property pertaining to the Products, and the Distributor agrees that it will do nothing inconsistent with such ownership. The Distributor agrees to conduct itself in such a manner so as to at all times preserve and protect the value of goodwill, business reputation and intellectual property of NMV. Distributor shall not make, assert, or cause any third parties to make or assert any claim to NMV’s Intellectual Property. Distributor further acknowledges that it shall not provide access to such intellectual property to any third parties without NMV’s prior written authorization.
• Duties. Distributor shall diligently keep watch in the marketplace and give NMV immediate oral and written notice of any violations or infringement or threatened infringement of any NMV trade name, trademark, or trade dress. Distributor shall render to NMV all reasonable assistance within Distributor’s power, at NMV’s direction and cost, to prevent, restrain and prosecute such infringement and if requested by NMV, to adequately protect and maintain NMV’s trademarks and other proprietary rights. NMV’s request to Distributor to assist in making such necessary registration shall not constitute Distributor a direct agent, or a legal representative of NMV in any way. Distributor shall in no event seek to enforce the Intellectual Property right in the Products in its own name but shall act, at all times, on behalf of NMV.
• Termination. Upon the termination of the Agreement for any reason, Distributor shall immediately discontinue the use of NMV’s trade name, trademarks, trade dress and other advertising or promotional materials used for the Products and shall remove all signs and display relating thereto. If Distributor fails to do so, NMV may, at its option, remove such articles, at Distributor’s sole cost and expense.
• Sub-representatives, Agents and Employees. Distributor shall be jointly and severally liable for any breaches caused by any of its sub-representatives, agents and/or employees (even if they have been pre-approved by NMV), as though such breaches had directly been caused by the Distributor.
• Breach. Distributor understands and agrees that, in the event of a breach of the Agreement, no remedy at law will provide adequate relief to NMV. Distributor agrees that in addition to any remedies which NMV may have at law, NMV shall be entitled to temporary and permanent injunctive relief, both mandatory and prohibitory, to enforce the provisions of the Agreement without the necessity of a bond or proving actual damages.
• Amendment. NMV, in its sole and absolute discretion, may amend its trademarks and other proprietary materials at any time, and shall give Distributor reasonable notice of any amendment.
