Appointment of Overseas Distributors with Exclusive Rights
This agreement is made on this 10th day of June 2000 between AB Ltd., a company registered under the Companies Act 1956 and having its registered office at ……………………… (hereinafter called the COMPANY which expression shall unless repugnant to the context include its successors and assigns) of the One Part and CD Co. Ltd., a COMPANY registered under the appropriate laws of South Africa and carrying on business as DISTRIBUTOR of diverse goods at …………………………… South Africa (hereinafter called the DISTRIBUTOR which expression shall unless repugnant to the context include its permitted assigns).
Whereas the COMPANY manufactures diverse kinds of electronic goods under its trade name and the DISTRIBUTOR carries on business as wholesaler and retailer through its several outlets in South Africa and has approached to be appointed as the sole DISTRIBUTOR of the COMPANY’s products in South Africa to which the COMPANY has agreed.
Now these presents witnessth and parties hereby agree as follows:
1. The COMPANY hereby grants to the DISTRIBUTOR the exclusive right during the continuance of this agreement to purchase for resale in the territory of South Africa the COMPANY’s products subject to the terms and conditions hereinafter appearing.
2. This agreement shall be in force for 5 years from 10th June 1999 and thereafter renewal for 5 years at a time on terms and conditions to be mutually agreed upon.
3. Orders for the products shall be placed by the DISTRIBUTOR on the COMPANY and the COMPANY shall sell the products to the DISTRIBUTOR at such prices as the COMPANY shall from time to time fix. The COMPANY shall execute orders of the DISTRIBUTORs for the products with all reasonable dispatch but shall not be liable for any loss of trade or profit, damages or expenses in the event of non-delivery of the products in time or at all due to labour trouble, strike, riots, lockouts, trade disputes, acts or restraints of governments, the imposition of restrictions on exportation or from any other cause not within the control of the COMPANY.
4. The title to the products shall pass to the DISTRIBUTOR when the invoiced products are placed on board the vessel at any Indian port and payment therefor shall become due from and payable by the DISTRIBUTOR in Indian Currency on receipt of shipping documents or on negotiation of shipping documents against Letter of Credit and/or on terms for payment as may from time to time be agreed upon by the parties.
5. The DISTRIBUTOR agrees and undertakes that it will at all times during the continuance of this agreement observe and perform the terms and conditions set out in this agreement.
6. The DISTRIBUTOR shall use at all times its best endeavours to promote sales of the products throughout the South Africa to all potential purchasers thereof and work diligently to obtain orders therefor by means of personal visits to and by correspondence with such purchasers, by advertising and by the distribution of printed matter in the approved form, manner, extent and wording of such advertising and such distributed matter shall be at the costs and expenses of the DISTRIBUTOR.
7. The DISTRIBUTOR covenants that it will not without the previous consent in writing of the COMPANY be concerned or interested directly or indirectly in the manufacture, production, importation, sale or advertisement of any goods in South Africa which are similar to or which either alone or in conjunction with some other product perform or are designed to perform the same or a similar function to or which might otherwise compete or interfere with the sale of any of the COMPANY’s products.
8. The DISTRIBUTOR agrees and undertakes that it will not either directly or through any agent sell any of the products outside South Africa or knowingly allow to be resold the products to any person within South Africa with a view to their resale outside South Africa.
9. The DISTRIBUTOR shall in all correspondence and other dealings relating to the sale or disposition of the products clearly indicate that it is acting as principal.
10. The DISTRIBUTOR shall not incur any liability on behalf of the COMPANY or in any way pledge or purport to pledge the COMPANY’s credit or accept any order or make any contract sought to be binding on the COMPANY without prior written consent of the COMPANY.
11. The DISTRIBUTOR shall not sell the products at any price other than that for the time being fixed by the COMPANY for the sale of the products in South Africa without the previous consent in writing of the COMPANY.
12. The DISTRIBUTOR shall bring to the attention of the COMPANY any improper or wrongful use of the COMPANY’s patents, trade marks, emblems, designs, models or other similar industrial or commercial rights which comes to its notice and take all steps to safeguard the property rights and interests of the COMPANY and will assist the COMPANY in taking all steps to defend the rights of the COMPANY.
13. The DISTRIBUTOR shall keep proper and up-to-date books of account and records showing clearly all inquiries, transactions and proceedings relating to the DISTRIBUTORship and will allow the authorised officers of the COMPANY to have access to the said books and records and to take such copies thereof as they may require.
14. The DISTRIBUTOR shall from time to time upon the request of the COMPANY supply to the COMPANY reports, returns and other information relating to the DISTRIBUTORship and market conditions.
15. The DISTRIBUTOR shall not assign, transfer, charge or in any manner make over this agreement or their rights hereunder or any part thereof without the written consent of the COMPANY.
16. The DISTRIBUTOR shall be bound by the COMPANY’s conditions of sale that may from time to time be in force and in selling the products enforce similar terms and conditions and shall not make any promises, representations, give warranties or guarantees with reference to the products except such as are consistent with those conditions or as are expressly authorised by the COMPANY in writing.
17. The DISTRIBUTOR shall not alter, remove, conceal or otherwise interfere with any markings or nameplates or other indication of the source or origin of the goods which may be placed by the COMPANY on its products.
18. The COMPANY hereby agrees with the DISTRIBUTOR that it will not during the continuance of the agreement sell any of the products to any person in South Africa other than to the DISTRIBUTOR or to any person outside the South Africa with a view to the resale thereof within the territory of South Africa save as provided in this agreement.
19. The COMPANY shall at its own expense supply the DISTRIBUTOR with such amount of samples and patterns, instructions, books, technical pamphlets, catalogues and advertising material as it considers reasonably sufficient to promote sales of the products within the territory of South Africa.
20. The COMPANY shall use its best endeavour to safeguard the sole and exclusive rights hereby granted to the DISTRIBUTOR including the taking of such steps as may be available to it to prevent the infringement of those rights by other DISTRIBUTORs or agents of the COMPANY and to prevent the infringement of its patents, trade marks, emblems, designs and other similar industrial or commercial monopoly rights within the territory of South Africa.
21. The COMPANY reserves to itself the right to supply the products to customers within the territory of South Africa in pursuance of firm orders placed with the COMPANY before the commencement of this agreement or in pursuance of orders resulting from negotiations pending at that date and no right to any payment shall accrue to the DISTRIBUTOR in respect thereof provided that information relating to all such orders and negotiations shall be given to the DISTRIBUTOR within 7 days of the commencement of this agreement and in the event any products are sold by the COMPANY with knowledge that they are for use in the said territory the DISTRIBUTOR shall be entitled to be paid a commission of 20% on the net price f.o.b. (before carriage, freight, insurance or duty have been added) Indian port in consideration of the DISTRIBUTOR assisting the COMPANY to obtain business from the territory as and when requested and on receipt by the COMPANY of payment in full for the products.
22. It is agreed that (a) the DISTRIBUTOR shall not be entitled to commission on any sale in respect of which it has failed to render such assistance as was required of them; (b) the DISTRIBUTOR shall be entitled to such commission as the COMPANY may in its absolute discretion determine on any sale direct by the COMPANY to any Government Department or Agency, State-owned public utility or industry in the territory; (c) the COMPANY may decline to submit a tender on any inquiry or to accept any order from the DISTRIBUTOR and by so declining shall not incur any obligation to the DISTRIBUTOR.
23. The COMPANY may vary the first schedule hereto defining the products either by withdrawing therefrom a class or classes of products named therein in the event of the COMPANY ceasing to manufacture that class or classes of products or by the addition thereto after consultation with the DISTRIBUTOR of further classes of products of the COMPANY.
24. If in the opinion of the COMPANY the DISTRIBUTOR becomes unable to effect adequate sales coverage throughout the whole of the territory without prejudice to any other rights the COMPANY may vary the First Schedule hereto so as to exclude from this agreement such part or parts of the territory therein defined as it thinks fit or to vary the Second Schedule hereto so as to exclude from this agreement such one or more of the products herein defined as it thinks fit or to take both these courses of action save that neither such course of action shall be taken under this clause without prior consultation with the DISTRIBUTOR.
25. The COMPANY shall be entitled to take such steps as may seem necessary or expedient including and without prejudice to the generality of the reserved right to appoint a representative in the said territory of South Africa and to notify the DISTRIBUTOR of any person, firm or body-corporate carrying on business in the territory who might appear to the COMPANY to be carrying on business in the territory who might appear to the COMPANY to be potential purchaser of its products.
26. The DISTRIBUTOR undertakes that they will not at any time divulge any information in relation to the COMPANY’s affairs or business or method of carrying on business.
27. The COMPANY shall have the right at any time by giving notice in writing to the DISTRIBUTOR to terminate the agreement forthwith (a) if the DISTRIBUTOR commits any breach of any terms or conditions of this agreement; (b) goes into compulsorily or voluntarily liquidation or compounds with its creditors or a receiver is appointed.
28. Before the expiration of the original term of agreement either party shall have the right to determine this agreement by giving one calendar month’s notice in writing to the other party.
29. Upon the termination of this agreement from any cause or at any time previous to such termination at the request of the COMPANY the DISTRIBUTOR shall promptly return to the COMPANY or otherwise dispose of as the COMPANY may instruct all samples, patterns, instruction books, technical pamphlets, catalogues, advertising materials, specifications and other materials, goods documents and papers whatsoever sent to the DISTRIBUTOR and relating to the business of the COMPANY at the cost of the DISTRIBUTOR.
30. Nothing in this agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute the DISTRIBUTOR as agent of the COMPANY for any purpose whatsoever. The DISTRIBUTOR shall have no authority or power to bind the COMPANY or to enter into contract in the name of the COMPANY or create any liability against the COMPANY in any way for any purpose.
31. Any dispute, difference or question which may arise at any time hereafter between the COMPANY and the DISTRIBUTOR touching the true construction of this agreement or the rights and liabilities of the parties hereto shall be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement to be appointed at the request of either party in accordance with and subject to the provisions of the Arbitration and Conciliation Act 1996 or any statutory modification or re-enactment thereof for the time being in force.
32. This agreement shall be deemed to have been made in India and the construction, validity and performance of this agreement shall be governed in all respects by the laws of India, arbitration shall be held in India and the Courts in India shall have the jurisdiction over any dispute and the Indian law shall govern this agreement.
All kinds of Electronic Products
In witness whereof the parties hereto have executed these presents at Calcutta on the day, month and year first above-written.
Signed, sealed and delivered by Mr. MN
pursuant to Board Resolution dated 1st.
June 2000 of AB Ltd.,in the presence of:
Signed, sealed and delivered by Mr. …..
pursuant to Board Resolution dated 2nd
June 2000 of CD Co. Ltd. at ……………
in the presence of: