THIS DISTRIBUTION AGREEMENT (this “Agreement”), by and between SAISEI HAWAII LTD., a Hawaii corporation, ("Supplier"), and a company that signs this agreement ("Distributor").
WHEREAS, Supplier is in the business of supplying certain drugs and supplements (collectively, the “Products”);
WHEREAS, Distributor is a licensed physician in the U.S.A. (or where the distributor resides) who distributes drugs and supplements to retailers at wholesale and directly to consumers. Supplier wishes to use the Distributor’s services in distributing its products to retailers and consumers in the U.S. Mainland (or where the distributor resides);
WHEREAS, Distributor desires to secure from Supplier, and Supplier desires to grant to Distributor, the non-exclusive right to sell and distribute Products in the U.S. Mainland (or where the distributor resides).
NOW, THEREFORE, for and in consideration of the mutual promises and covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby duly acknowledged, Supplier and Distributor covenant and agree as follows:
I. Term of Agreement.
This Agreement shall be effective as of the day the distributor signed this agreement (the “Effective Date”), and shall be effective for one (1) year unless earlier terminated as set forth herein. If the Agreement is not terminated thirty (30) calendar days prior to the expiration of the initial one-year term and successive one-year terms from the Effective Date, it shall be automatically extended for a subsequent term of one (1) year which may be earlier terminated as set forth herein.
1. Initial Price. During the initial term of this Agreement, Supplier shall sell and Distributor shall purchase Products at the prices set forth in Exhibit A (the “Price”), which will be sent to you by email. Distributor promises to purchase Products from Supplier collectively in the amount of at least Three Thousand and No/100 U.S. Dollars ($3,000.00) per year.
2. Price Revisions. The prices listed on Exhibit A shall be revised at the time of extensions of this Agreement, when the Supplier finds it necessary considering the changes in economic situations, foreign exchanges, costs to manufacture the Products, etc.
3. Retail Price Restrictions. Distributor shall set retail price on the sale of Products (to retailers and consumers on the U.S. Mainland) within the maximum sales price set forth in Exhibit A.
III. Payment Terms.
1. Currency. All payments shall be made in United States Dollar unless otherwise agreed in individual contract.
2. Payment method. Payment for the Products shall be made by the Distributor by wire transfer, credit card, or other method as designated by Supplier.
IV. Appointment as Non-Exclusive Distributor.
Supplier hereby appoints Distributor as one of several non-exclusive distributors for the term of this Agreement for the sale and distribution of Products in and throughout U.S. Mainland (or where the distributor resides).
Distributor agrees and acknowledges that the sale and distribution of Products outside of the U.S. Mainland (or where the distributor resides), including by taking orders for sale for delivery to a location ultimately outside of the U.S. Mainland (or where the distributor resides) shall be a violation of this Agreement. In addition, Distributor agrees and acknowledges that this appointment does not include the authorization to solicit the sale or distribution of the Products over the internet, including online sales to U.S. Mainland (or where the distributor resides) retailers and consumers. Supplier shall retain all rights to appoint other distributors as non-exclusive distributors for U.S. Mainland (or where the distributor resides), as well as for other territories. Supplier shall also retain all rights to sell or continue to sell the Products to retail customers who wish to purchase Supplier’s products online through Supplier’s internet site, including online purchases that may originate on the U.S. Mainland (or where the distributor resides).
The relationship between Supplier and Distributor in this Agreement shall be solely that of supplier and distributor. Under no circumstances shall Distributor be considered a representative or agent of Supplier. Likewise, Supplier shall not be considered as a representative or agent of Distributor. Distributor shall not have any right or authority to enter into any contractual obligations or make any representation in the name of or on behalf of Supplier, including warranties regarding the Products.
Distributor must submit orders by email to firstname.lastname@example.org or through the Supplier’s website as Supplier may designate. Supplier will respond to the order with an confirmation and invoice within five (5) business days of receipt of order and ship Products upon receipt of payment of invoice in full. Responses generated automatically by email or by the Supplier’s website shall not be deemed a confirmation of an order.
VII. Duties of Supplier.
A. Orders from Distributor. Supplier shall fulfill orders by shipping out Products to Distributor upon receipt of full payment for orders. Supplier reserves the right to stop order fulfillment in the event the Distributor has not paid in full for the order, or is in material breach of this Agreement.
B. F.O.B. & Risk of Loss. All deliveries of Products sold by the Supplier to the Distributor pursuant to this Agreement shall be made by F.O.B. Honolulu, Hawaii, and title to and risk of loss of the Products shall pass from the Supplier to the Distributor at Honolulu, Hawaii. Distributor shall bear the transportation or freight charges. Supplier shall not be liable for shipping delays or late deliveries. Any taxes applicable to the sale of Products shall be paid by Distributor in addition to the Price. The Price, terms and conditions stated in this Agreement shall apply to orders for Products by Distributor notwithstanding anything to the contrary stated within invoices, purchase orders or other business forms.
C. Product Availability. Supplier shall have the right to change product availability at its sole discretion at any time. In the event Supplier lacks sufficient inventory to meet Distributor’s orders, Supplier may allocate its available inventory at its sole discretion.
D. Legal Compliance. Distributor shall comply with all applicable federal, state and local laws and ordinances in performing its duties under this Agreement.
VIII. Duties of Distributor.
A. Payment by Distributor. For the Products, Distributor shall pay the total Price upon order by wire transfer or by such other manner as Supplier designates.
B. Acceptance of Products.
1. The Distributor shall inspect Products (“Inspection”) within three (3) days after the receipt thereof, and notify the Supplier by mail or email if there exist any defect, flaw and/or damage to the Product (“Defect”), or any insufficiency thereof. If the Supplier does not receive any notice from the Distributor during such period, the Distributor shall be deemed to have completed the Inspection.
2. In the event that the Supplier is notified of any Defect pursuant to the preceding paragraph, the Supplier shall recall the Product and inspect same. If any Defect is found in the Product and such Defect is attributable to the Supplier, the Supplier shall replace with non-defective Product. If the Product is found not defective or the Defect is not attributable to the Supplier, the Distributor shall bear all costs for recalls, inspection, and redelivery of the Product.
3. In connection with any Product that is defective or delivered in excess, the Supplier shall manage same with due care consistent with good administrative practices until the Supplier reclaims the above-mentioned.
4. Delivery of the Product shall complete upon termination of the Inspection by the Distributor, and thereafter, the Distributor may not make any claims against the Supplier with regard to the Product. Unless Supplier is notified of a Defect within the Inspection period, the Supplier shall not be obligated to accept from the Distributor any Products returned, or to make any exchange thereof.
C. Protection of Proprietary Rights. Distributor shall not reverse-engineer or analyze and shall not cause to be reverse-engineered or analyzed, the Products.
D. Distributor Marks. Subject to the terms and conditions of this Agreement, during the term of this Agreement Distributor hereby grants Supplier a non-exclusive, royalty-free license to use Distributor’s logos, trademarks, and trade names (the “Distributor’s Marks”) on Supplier’s web sites and marketing materials.
E. Protection of Confidential Information. Distributor may receive confidential, proprietary business information from Supplier, including but not limited to confidential information regarding its Products, sale strategy, and market information. Distributor shall safeguard said Confidential Information (defined below), and disclose the Confidential Information only to its employees, subcontractors and consultants who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are under confidentiality obligations no less restrictive as this Agreement. Distributor shall be liable for the acts of any person to whom it discloses the confidential information. Distributor shall protect Confidential Information by using the same degree of care as Distributor uses to protect its own information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information. Distributor agrees not to use the Supplier’s Confidential Information for its own purpose or for the benefit of any third party, without the prior written approval of Supplier.
1. Confidential Information. “Confidential Information” shall mean (i) information relating to a party’s and its affiliates products or business including, but not limited to, the business plans, financial records, customers, suppliers, products, product samples, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, and know-how or other intellectual property, that may be at any time furnished, communicated or delivered by either party to the other party, whether in oral, tangible, electronic or other form and (ii) all other non-public information provided by one party to the other including, but not limited, to financial, technical and business information, and all non-promotional materials furnished by one party to another.
2. Exceptions. The receiving party shall not have any obligations to preserve the confidential nature of any Confidential Information that (a) receiving party can demonstrate by competent evidence was rightfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes a matter of public knowledge through no fault of the receiving party; (c) is rightfully received by receiving party from a third party without, to the best of receiving party’s knowledge, a duty of confidentiality; (d) is independently developed by receiving party without use of the Confidential Information; or (e) is disclosed by receiving party with disclosing party’s prior written approval.
F. Equitable Relief. Distributor hereby agrees and acknowledges that any breach or threatened breach of this Agreement regarding the treatment of Confidential Information may result in irreparable harm to Supplier for which there may be no adequate remedy at law. In addition to other remedies provided by law or at equity, in such event Supplier shall be entitled to receive an injunction, without bond, preventing any further breach of this Agreement by Distributor.
IX. Warranties. Supplier makes no warranties or representations to Distributor or any other person with respect to the Products or any services provided to Distributor or any other person.
X. Warranty by Distributor to Customer.
Distributor shall make no representations and warranties to any of its customers with respect to any of its Products.
XI. Product Liability.
In the event that the Distributor receives a third-party claim arising out of any inherent defect in any Products which result in death, bodily injury, or tangible property, the Distributor shall immediately notify Supplier to discuss how to handle the situation.
XII. Distributor’s indemnity Obligations to Supplier.
Distributor hereby agrees to defend, indemnify and hold harmless Supplier, its affiliates and their respective officers directors, employees and agents from and against any and all Claims (i) arising out of the acts or omissions of Distributor, its employees, agents or representatives with respect to the marketing, installation, use, sale or servicing of Products, or with respect to Distributor’s acts or omissions relating to its performance of this Agreement, (ii) arising out of the alteration or modification of the Products by Distributor or its employees, agents or representatives or the use of the Products in combination with any other products or marks, (iii) alleging that the Distributor’s Marks infringe or otherwise violate the intellectual property rights of a third party, and (iv) arising out of Distributor’s misrepresentation of the effectiveness, etc. of the Products.
XIII. Limitation of Liability; Actions.
Except for Distributor’s indemnification obligations under Section XII of this Agreement and confidentiality obligations under Section VIII, D of this Agreement, in no event shall either Party by liable under this Agreement to the other Party for any incidental, consequential, indirect, statutory, special, or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, or loss of data, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
The failure of either party to perform, keep or fulfill any of the covenants, undertakings, obligations or conditions set forth in this Agreement (“Breach”), and the continuance of such failure for a period of twenty (20) calendar days after written notice of said failure shall constitute a default (“Default”) under this Agreement.
XV. Termination of Agreement.
The parties shall have the right to terminate this Agreement as provided immediately below:
A. Notice. Either side may terminate this Agreement with or without cause upon thirty (30) calendar day written notice to the other party.
B. Cause. Upon Default, the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party. Upon such termination for cause, either party may seek damages or seek any and all remedies available to the parties by law or in equity. The prevailing party under such action shall be entitled to recover reasonable attorney’s fees and costs incurred in seeking such relief.
C. Sale; License. Upon termination or expiration of this Agreement, Distributor shall cease to be an authorized distributor of the Products, but may continue to sell the Products in its inventory or received pursuant to the foregoing paragraph for a period of thirty (30) days after the termination or expiration of this Agreement; except in cases where the Agreement is terminated by Supplier caused by the Distributor’s Default.
D. Return of Confidential Information. Upon termination of this Agreement, Distributor shall promptly return to Supplier any confidential information received from Supplier in its possession.
A. Governing Law; Jurisdiction. This Agreement shall be con¬strued and enforced in accordance with the laws of the State of Hawaii. The parties hereby agree to be bound by the laws of the State of Hawaii and agree to be subject to the jurisdiction of the courts of the State of Hawaii, including the Federal District Court located in the State of Hawaii.
B. Assignability of Agreement. This Agreement may not be assigned by either party without the prior written consent of the other party, although the parties understand that each of their services or portions thereof may be assigned to and completed by third parties.
C. Waiver. Failure of either party to enforce any provisions of this Agreement or any right in respect thereof or to exercise any election provided for herein shall in no manner be deemed to be a waiver of such provisions, rights, or election or in any way affect the validity of this Agreement. Failure of either party to exercise any of said provisions, rights, or elections shall not prejudice such party from later enforcing or exercising the same or any other provisions, rights, or elections which it may have under this Agreement.
D. Notices. All notices and other communications hereunder shall be made in writing by e-mail, or mail and shall be addressed to the other party at its address set forth below or such other address as either party may have last designated in writing. Notices and other communications mentioned above shall be deemed to be delivered upon the earlier of actual receipt or five (5) calendar days after their dispatch. All notices shall be made in English.
If to Supplier:
Saisei Hawaii Ltd.
1600 Kapiolani Blvd., Suite 1328
Honolulu, Hawaii 96814
E. Force Majeure. Neither party shall be responsible for any failure or delay in the performance of any obligation imposed upon it hereunder (except for the payment of monies due), nor shall such failure or delay be deemed to be a breach of this Agreement if such failure of delay is due to circumstances of any nature whatsoever which are not within its control and are not preventable by reasonable diligence on its part.
F. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or invalid, the remainder of the provisions shall remain in effect.
G. Counterparts. This Agreement may be executed in one or more counterparts, and when so executed, each counterpart shall be deemed to be an original, and said counterparts together shall constitute one and the same instrument. This Agreement may be executed in original ink or by facsimile/PDF signature.
H. Entire Agreement. This Agreement constitutes the entire agree¬ment of the parties hereto with respect to the transaction contemplated by this Agreement and supersedes all prior agreements or under¬standings regarding the same subject matter.
IN WITNESS WHEREOF, the parties have hereunto set their hands unto this Agreement on the day first above writ¬ten.
SAISEI HAWAII LTD.
a Hawaii corporation