DISTRIBUTION TERMS AND CONDITIONS
THIS DISTRIBUTORSHIP AGREEMENT is made as of the date specified in the Distributor Application by and between GOLDEN ASHE, a Nevada company, (the “Company”) and you, the distribution agent (the “Agent”) (collectively referred to as the “Parties” or individually as the “Party”).
WHEREAS, Company shall recruit Agent as a “representative” to promote and sell the products of Company as dictated by Company;
WHEREAS, Agent agrees to be an independent sales agent of Company accordingly to an agreed commission structure;
WHEREAS, Agent agrees that Agent shall comply with the terms and conditions of this Agreement, Company’s policies and procedures and Company’s marketing and compensation plan (collectively, the “Agreement”).
ARTICLE I
DEFINITIONS
Section 1.01 “Affiliate” means any company controlled by, controlling, or under common control with Company.
Section 1.02 “Customer” means any person who purchases Goods from Agent.
Section 1.03 “Delivery Point” means Agent’s facilities listed in the applicable Distributor Application.
Section 1.04 “Goods” means those items described in Exhibit A. Goods may be deleted from or added to Exhibit A and their specifications and design may be changed by Company at any time by posting written notice of such changes on this webpage. Each change shall become effective within 5 days following the date notice thereof is posted.
Section 1.05 “Territory” means the following geographic area or areas: United States
Section 1.06 “Trademark” means any trademark, logo, or service mark, whether or not registered, used to represent or describe the Goods of Company.
ARTICLE II
APPOINTMENT OF AGENT
Section 2.01 Appointment
Company hereby appoints Agent as Company’s non-exclusive distribution agent of Goods in the Territory, and Agent hereby accepts that position. It is understood that Company cannot lawfully prevent its distribution agents located elsewhere from supplying Goods for sale or use within the Territory and that it has no obligation to do so.
Section 2.02 Agent Compensation
Agent’s sole method of compensation will be on a commission basis, with the ability to earn certain bonuses, as set forth in Company’s marketing and compensation plan. Any expenses incurred by Agent in the sale and distribution of the Goods are Agent’s sole responsibility, unless otherwise agreed to in writing by Company.
Section 2.03 Relationship of Parties
Agent is an independent contractor and is not the legal representative or agent of Company for any purpose and shall have no right or authority (except as expressly provided in this Agreement) to incur, assume or create in writing or otherwise, any warranty or obligation on the part of Company.
(a) Control of Affiliates . Company shall not exercise any control over any of Agent’s Affiliates (if any), all of whom are entirely under the control of Agent. Agent shall be solely responsible for the acts and omissions of Agent’s Affiliates (if any).
(b) Workmen’s Compensation. Agent shall, at Agent’s own expense, during the Term of this Agreement and any extension thereof, maintain full insurance under any Workmen’s Compensation Laws effective in the state or other applicable jurisdiction covering all persons employed by and working for Agent in connection with the performance of this Agreement, and upon request shall furnish Company with satisfactory evidence of the maintenance of such insurance.
(c) Taxes. Agent accepts exclusive liability for all contributions and payroll taxes required under Federal Income Tax Law, Federal Social Security Laws and State Unemployment Compensation Laws or other payments under any laws of similar character in any applicable jurisdiction as to all persons employed by and working for Agent.
(d) No Partnership or Benefits. Nothing contained in this Agreement shall be deemed to create any partnership or joint venture relationship between the parties. Agent is an independent contractor and not an Affiliate and accordingly is not entitled to any benefits normally associated with an employment relationship.
Section 2.04 Sale of Goods by Agent
Agent shall use Agent’s best efforts to distribute the Goods and to fully develop the market for the Goods within the Territory. The Parties agree that a minimum of 400 Units will be purchased and distributed in the Territory during the month to maintain “Corporate Distributor” status otherwise Agent will be considered “Authorized Dealer” and will not qualify for Territory. At the beginning of each subsequent year the Parties will consult together in good faith and agree on the Annual Market Potential applicable to that year. However, if the Parties cannot agree, the Annual Market Potential for the immediately Preceding year will apply to the current year.
Section 2.05 Competing Goods
Agent agrees that it will not distribute or represent any goods in the Territory that compete with the Goods of Company during or 5 years from the termination of this agreement.
Section 2.06 Advertising
Agent shall be entitled, during the Term of the distributorship created by this Agreement and any extension thereof, to advertise and hold itself out as an authorized distributor of the Goods. At all times during the Term of the distributorship created by this Agreement and any extension thereof, Agent shall use Company’s Trademarks, if any, in all advertisements and other activities conducted by Agent to promote the sale of the Goods.
(a) Agent shall not, pursuant to this Agreement or otherwise, have or acquire any right, title or interest in or to Company’s Trademarks.
Section 2.07 Agent Sales, Service and Storage Facilities
Agent shall, at Agent’s expense, engage and maintain a sales, service and Goods handling organization in the Territory, staffed with such experienced personnel as are necessary to enable Agent to perform its obligations under this Agreement.
(a) Agent shall, at its expense, at all times store and maintain its inventory of Goods in accordance with current, applicable instructions issued by Company from time to time.
(b) Agent shall send notice to Company, during the Term of the distributorship created by this Agreement and any extension thereof, prompt written notice of the address of each location at which Goods are stored, and the address of each facility established by Agent to sell and service the Goods.
(c) Company may, through its designated agent, inspect all such locations and facilities and the operations conducted therein at any time during normal business hours.
Section 2.08 Confidential Information
Technical data, business data, Goods components, marketing information, as well as technical instructions pertaining to the Goods are recognized by Agent to be secret and confidential and to be the sole property of Company. Those items shall at all times and for all purposes be held by Agent in a confidential capacity and shall not, without the prior written consent of Company;
(a) be disclosed by Agent to any person, firm or corporation, except those Affiliates of Agent who are required to utilize such items in connection with the sale, inspection, storage or delivery of Goods during the Term of the distributorship created by this Agreement or any extension thereof, or
(b) be disclosed to any person, firm or corporation, or copied or used by Agent, its Affiliates or agents at any time following the expiration or termination of this Agreement or any extension thereof.
Company may require as a condition to any disclosure by Agent pursuant to this Section 2.08 that any Affiliate to whom disclosure is to be made sign a confidentiality agreement, enforceable by Company, containing terms satisfactory to Company.
Section 2.09 Trade Shows and Promotional Events
Agent is responsible for attending such trade shows and other proportional events, as may be scheduled by Company. Company shall be responsible for the scheduling and organizing of all trade shows and other promotional events within the following terms:
(a) Agent shall not, without the consent of Company, contact a promoter for any trade show or similar event. If Agent materially breaches this Section 2.09, Company shall be entitled to consequential damages, plus all legal fees incurred by Company in relation to such breach;
(b) Agent shall conduct itself in a professional manner at all times and shall adhere to Company’s current policy and guidelines for uniforms and setup at all trade shows;
(c) Agent shall report on time for all scheduled trade shows; and
(d) Agent is solely responsible for complying with Company’s current Trade Show Policies, which are listed in Exhibit B attached hereto.
Section 2.10 Non-Competition
Agent shall not: develop, manufacture, market, offer, provide or sell any product or good that competes with any existing or proposed product or good of Company during this Agreement or a period of five (5) years following the termination of this Agreement.
Section 2.11 Return of Company Materials
Upon the termination of this Agreement, Agent is not permitted to use any, whether in part or in whole, of Company’s training or promotional materials or likenesses. Agent shall return to Company any and all property or materials licensed by Company, in Agent’s possession and control, inclusive of, but not limited to, inventory, trade secrets, equipment, all related records and accounting ledgers, recordings, signage, sale and promotional materials.
Section 2.12 Non-Solicitation
While this Agreement in is force, and for a period of five (5) years immediately following termination of this Agreement, Agent will not directly or indirectly: cause any person to leave or recruit agents from Company.
ARTICLE III
TERMS OF PURCHASE AND SALE OF GOODS
Section 3.01 Purchase of Product
Agent shall purchase its requirements for the Goods solely from Company. Such requirements shall include purchasing and maintaining an inventory of Goods that is sufficient to enable Agent to perform its obligations hereunder, and at least 50% of average sale of Goods. All orders for Goods transmitted by Agent to Company shall be deemed to be accepted by Company at the time such orders are received by Company to the extent that they are in compliance with the terms of this Agreement and Company shall perform in accordance with all accepted orders. Company shall confirm its receipt and acceptance of each order within 4 days of receipt of the order.
Section 3.02 Purchases for Resale
All Goods purchased by Agent shall be purchased solely for commercial resale, except those Goods reasonably required by Agent for advertising and demonstration purposes.
Section 3.03 Order Procedure
Each order for Goods issued by Agent to Company under this Agreement shall identify that it is an order and shall further set forth the delivery date or dates and the description and quantity of Goods which are to be delivered on each of such dates.
(a) The individual contracts for the sale of Goods formed by Agent’s submission of orders to Company pursuant to the terms and conditions hereof shall automatically incorporate, to the extent applicable, the terms and conditions hereof, shall be subject only to these terms and conditions (together with all terms in orders which are contemplated by this Agreement) and shall not be subject to any conflicting or additional terms included in any documents exchanged in connection therewith.
(b) Notwithstanding anything in this Section 3.03, Company and Agent may, by mutual written agreement, modify the terms and conditions of this Agreement.
Section 3.04 Cancellation of Orders
All cancellation of orders must be made within three(3) days by Agent and shall be in writing, or if not initially in writing, shall be confirmed in writing. If Agent cancels an order, which has been accepted by Company, Agent shall reimburse Company for any cost incident to such order incurred by Company prior to the time Company was informed of the cancellation.
Section 3.05 Purchase Price
The prices for Goods and any discounts applicable thereto, are set forth in Exhibit A. All prices are F.O.B. the Shipping Point. If the price for any Good is not set forth on Exhibit A and Agent nevertheless orders such a Good from Company, the Parties hereby evidence their intention to conclude a contract for the sale of that Good at a reasonable price to be determined by the Parties mutually negotiating in good faith.
Section 3.06 Price Changes
Company reserves the right, in its sole discretion, to change prices or discounts applicable to the Goods. Company shall give written notice to Agent of any price change at least 10 days prior to the effective date thereof. The price in effect as of the date of Agent’s receipt of notice of such price change shall remain applicable to all orders received by Company prior to that effective date.
Section 3.07 Packing
Company shall, at its expense, pack all Goods in accordance with Company’s standard packing procedure, which shall be suitable to permit shipment of the Goods to the Territory; provided, however, that if Agent requests a modification of those procedures, Company shall make the requested modification and Agent shall bear any reasonable expenses incurred by Company in complying with such modified procedures which are in excess of the expenses which Company would have incurred in following its standard procedures.
Section 3.08 Delivery: Title and Risk of Loss
(1) All deliveries of Goods sold by Company to Agent pursuant to this Agreement shall be made F.O.B. the Shipping Point, and title to and risk of loss of Goods shall pass from Company to Agent at the Shipping Point.
(a) Company shall be responsible for arranging all transportation of Goods, but if requested by Company, Agent shall, at Agent’s expense, assist Company in making such arrangements.
(b) Company is not required to procure insurance for the transportation of the Goods, and such insurance shall be sole responsibility of agent.
(2) Promptly upon the receipt of a shipment of Goods, Agent shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged.
(a) Within one (1) day of receipt of the shipment, Agent shall notify Company in writing of any shortages, defects or damage, which Agent claims existed at the time of delivery.
(b) Within thirty (30) days after the receipt of such notice, Company will investigate the claim of shortages, defects or damage, inform Agent of its findings, and deliver to Agent Goods to replace any which Company determines, were in short supply, defective or damaged at the time of delivery.
(c) Unless notice is given as provided in this Section 3.08, Agent shall be deemed to have accepted such Goods and to have waived all claims for shortages, defects or damage.
(d)All goods will be shipped within 7 to 14 business after receipt of payment.
Section 3.09 Payment
Upon delivery and acceptance of Goods, Company may submit to Agent Company’s invoice for those Goods. Agent shall pay each invoice within five (5) days after Agent’s receipt of that invoice. Payment shall be made in United States dollars to a bank account to be specified in writing by Company to Agent.
Section 3.10 Legal Compliance
The obligations of the Parties hereunder to sell and deliver Goods shall be subject to such United States laws and regulations as shall, from time to time, govern the sale and delivery of goods within the United States. Compliance with such laws is Agent’s sole responsibility and Company shall not incur any liability for Agent’s violation thereof.
ARTICLE IV
GENERAL PROVISIONS
Section 4.01 Term
This Agreement shall last for 1 year, and shall automatically renew upon the one-year anniversary for 5 successive years, unless terminated by either Party in writing not later than thirty (30) days prior to the end of a given one-year term. Provided that Company may terminate this Agreement upon five (5) days notice to Agent for any action in breach of the terms this Agreement.
Section 4.02 Termination
If Agent violates any term of this Agreement, Company shall have the right to terminate this Agreement immediately by giving written notice to Agent in accordance with Section 4.10.
Section 4.03 Enforcement
The Parties acknowledge that Company will be irreparably harmed by a violation of this Agreement and that the calculation of the value of such harm would be impossible to calculate with any degree of certainty. Accordingly, Company shall be entitled, together with all other remedies at law, to enforce this Agreement by specific performance and/or injective relief in accordance with the laws of Nevada to which state’s jurisdiction Agent hereby submits itself for purposes provided hereunder. Further, Agent shall pay reasonable costs, including attorney fees, of Company in connection with such enforcement action.
Section 4.04 Limitation of Liability
To the fullest extent permitted by law, Company, its directors, officers, shareholders, Affiliates , assigns, partners and successors, (collectively referred as “Affiliates”), shall not be liable for, and Agent releases Company and its Affiliates from, and waives all claims for any loss of profits, indirect, direct, special or consequential damages or any other loss incurred or suffered by Agent as a result of: (a) breach of this Agreement; (b) the improper promotion or operation of Agent’s distributorship and any activities related to it; (c) any incorrect or wrong information provided by Agent; or (d) the failure to provide any information or data necessary for Company to operate its business, including without limitation, Agent’s enrollment and acceptance into to the Marketing and Compensation Plan or the payment of bonuses or commissions. Agent agrees that the entire liability of Company and its Affiliates for any clam whatsoever related to the relationship of Company and Agent, including but not limited to, any cause of action based in contract, tort or equity shall not exceed, and shall not be limited to, the amount of Goods ordered or purchased from Company under this Agreement or any other agreement between Agent and Company that are in resalable condition. Agent further agrees to indemnify, hold harmless and defend at Agent’s sole expense, Company and its Affiliates against any and all claims, demands, liabilities, judgments, attorney fees and all other expenses arising or alleged to arise in connection with Agent’s distributorship.
Section 4.05 Severability
If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force, as long as the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
Section 4.06 Choice of Law
Notwithstanding the fact that the Parties may conduct business in states or countries other than Nevada, this Agreement and the rights of the Parties hereunder will be governed by, interpreted, and enforced in accordance with the laws of Nevada.
Section 4.07 Arbitration
As more fully set forth in Company’s policies and procedures, all disputes and claims against Company and its Affiliates , directors, officers or Affiliates (collectively referred to as a “Company Entity”), for any theory of liability or cause of action including but not limited to, torts, misrepresentation, federal and state statutory claims, breach of contract, or non-contractual claims, shall be settled totally and finally by arbitration in Las Vegas, NV in accordance with the Federal Arbitration Act in the Commercial Arbitration Rules of the American Arbitration Association. If Agent files a claim or counter claim against any Company Entity, Agent may only do so on an individual basis and not with any other Agent as part of a class action. No punitive or exemplary damages shall be awarded in arbitration, or in any other preceding, against any Company Entity. The decision of the arbitrator shall be final and binding on the parties and may, if need be, be reduced to a judgment in any court of competent jurisdiction. Each party to the arbitration shall be responsible for its own cost and expenses of arbitration, including legal and filling fees. This Agreement to arbitrate shall survive any termination or expiration of this Agreement.
Section 4.08 Assignment
This Agreement shall not be assigned by Agent without the consent of Company. Any attempt to transfer or assign this Agreement without the express written consent of Company renders this Agreement voidable at the option of Company and may result in the termination of Agent’s distributorship.
Section 4.09 Modifications
Company reserves the right to modify or change the terms of this Agreement at any time. All changes will be made available to Agent for review within thirty (30) days of such changes. The continuation of purchase of goods and acceptance of bonuses and commissions shall constitute Agent’s acceptance of any and all such changes.
Section 4.10 Notice
Any notice required by the terms of this Agreement shall be delivered or made electronically, over the Internet or otherwise (with request for assurance of receipt in a manner typical with respect to communications of that type), or given in writing. Any notice given in writing shall be deemed effective upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid, and shall be addressed to Company at its principal executive office and to Agent at the address that he or she has most recently provided to Company. Any notice given electronically shall be deemed effective on the date of transmission.
Section 4.11 Entire Agreement
This Agreement, including Company’s policies and procedures and Company’s Marketing and Compensation Plan, is the final integration of the agreement of the Parties with respect to the matters covered by it and supersedes any prior understanding or agreement, oral or written, with respect thereto. It is Agent’s sole responsibility to read Company’s policies and procedures and Company’s Marketing and Compensation Plan.
EXHIBIT A
GOODS TO BE SOLD
The Holster King product line
Handilite by DL’s Closet
Nuthin But Nature product line
Stream Box
Dragontail products
Naked Coffee products
EXHIBIT B
TRADE SHOW POLICIES
In order to be eligible for commissions and bonuses, Agent must comply with the following Company policies and procedures for trade shows:
Trade Show Policies:
• The cut off for trade show bookings is three (3) weeks prior to the scheduled date of the trade show at issue. After the 3-week deadline, Agents may register for Company’s scheduled trade shows on an as-available basis. Preferred trade shows are based on the Agent’s status and the number of units on hand.
• Under no circumstance are Agents, or anyone on behalf of Agents, allowed to schedule and book trade shows. All trade shows are scheduled and booked by Company unless authorized by Company.
• When working a new trade show, Agent must check in with Company on the Friday before the show.
• All tables must be set up according to Company’s standards and guidelines.
• Agents may only sell 1 Good per table, unless authorized by Company.
• Top tier distributor agents are guaranteed two (2) Preferred Trade Shows per month.
• Home base area trade shows must be covered before a trade show requiring travel can be requested, unless authorized in writing by Company.
• Agents are responsible for any lost, damaged or stolen Goods that are out on consignment.
• All Agents represent Company at events.
• No negotiating the sale of new or existing Goods with outside distributors. All products sold at trade shows must be purchased from Company or it’s partners or affiliates.