MANUFACTURER AGENT’S AGREEMENT
This Agreement is made on this _____ day of _________ 2012 between ____________________ (hereinafter referred to as the “Manufacturer”) with its principal office located at ______________________, Ward _____, District ______________, Ho Chi Minh City, Vietnam and
VP Exports, Inc. (hereinafter referred to as “VP Exports”) with its principal office located at 173 Kassik Circle, Orlando, Florida, USA and it’s local office located at 82-84 Thang Long Street, Ward 4, Tan Binh District, Ho Chi Minh City, Vietnam.
WHEREAS the Manufacturer is interested in appointing a commission agent for sale of its products. AND WHEREAS VP Exports has approached the Manufacturer to appoint him as his commission agent, all under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, each of the parties hereto intending to be legally bound, it is agreed as follows:
1. DEFINITIONS
a. "Products" shall mean the Manufacturer’s products set forth on Exhibit A of this Agreement.
b. "Territory" shall mean those geographical areas set forth in Exhibit B of this Agreement.
c. "Customer" shall mean any traditional Reseller or pre-approved distributor of Products in the Territory.
d. "House Accounts" shall mean those accounts in the Territory for which sales are non-commissionable. Customers designated by Manufacturer as House Accounts are listed in Exhibit C of this Agreement and may be added to or modified from time to time by Manufacturer at its sole discretion. In the event that a Customer is designated as a "House Account" subsequent to the date hereof, commissions for all such Customers shall be payable to VP Exports for ninety (90) calendar days following the "House Account" designation in accordance with this Agreement.
e. "Net Invoice Price" shall mean the total price at which an order is invoiced to the Customer prior to any discount offered by Manufacturer in compensation for early payment. Excluded from the net invoice price are all shipping and mailing costs, duties, taxes, insurance and related adjustments granted to the Customer by Manufacturer as shown on the face of the invoice.
2. APPOINTMENT AND AUTHORITY OF VP EXPORTS
a. Subject to the terms and conditions of this Agreement, Manufacturer appoints VP Exports as its designated selling agent for the Products to Customers in the Territory, and VP Exports accepts the appointment and agrees to sell and promote the sale of the Products.
b. Manufacturer agrees that it shall not engage, designate or appoint any other international manufacturer's representative organization or agent other than VP Exports in the given Territory during the term of this Agreement.
c. For sales to any Customers within the Territory, Manufacturer shall pay to VP Exports a commission in accordance with Section 3 below.
d. VP Exports shall neither advertise the Products outside the Territory nor solicit orders from outside the Territory without the prior written consent of Company.
e. The relationship of Manufacturer and VP Exports established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to
i. give either party the power to direct and control the day-to-day activities of the other,
ii. constitute the parties as partners, joint ventures, co-owners or otherwise as participant in a joint undertaking, or
iii. allow VP Exports to create or assume any obligation on behalf of Manufacturer for any purpose whatsoever. All financial and other obligations associated with VP Exports’ business are the sole responsibility of VP Exports.
3. COMPENSATION
a. As full payment for any and all services rendered by VP Exports and in consideration of the effort and all of the expenses incurred by VP Exports, Manufacturer agrees to pay to VP Exports, and VP Exports agrees to accept, commissions on sales of the Products to Customers which shall be calculated as set forth in Exhibit D.
b. The commission shall apply to all orders, with the exceptions as specified in Exhibit D, from all Customers in the Territory that have been accepted by Manufacturer and which shipments have occurred.
c. In no case will any compensation paid to Manufacturer employees be deducted from commissions due VP Exports.
d. Commissions will be paid on or before the 7th day of the following month in which the Product was invoiced.
e. Manufacturer shall have the absolute right to chargeback commissions on all shipments not paid by an authorized Customer over ninety (90) days past the invoice date, provided Manufacturer re-credits VP Exports for the appropriate commission applied to actual partial or full payments, less fees incurred in the process of collecting the payments, subsequently received from the authorized Customer.
f. Manufacturer reserves the right to chargeback (debit) the full amount of paid commissions on products returned by VP Exports to Manufacturer for credit.
g. PAYMENT: Payment of commissions shall be in United States dollars (at the current rate of the value of a US Dollar) and shall be subject to all applicable governmental regulations and rulings, including the withholding of any taxes required by law.
h. MONTHLY STATEMENTS: Manufacturer shall submit to VP Exports monthly statements of the commissions due and payable to VP Exports under the terms of this Agreement, with reference to the specific Customers on which the commissions are being paid.
4. SALE OF THE PRODUCTS
a. All sales shall be at prices and upon terms established by Manufacturer and Manufacturer shall have the right to establish, change, alter, or amend prices and other terms and conditions of sale in its sole discretion. VP Exports shall not accept orders in Manufacturer’s name; make price quotations or delivery promises without Manufacturer’s prior approval.VP Exports shall use its best efforts to protect and keep confidential the Manufacturer’s trade secrets, copyrights, patents, technology and know-how associated with the Products.
b. All orders obtained by VP Exports shall be subject to acceptance by Manufacturer at its principal office currently located at the address listed for Manufacturer at the beginning of this Agreement, and all quotations by VP Exports shall contain a statement to that effect.VP Exports shall have all authority to make any delivery commitments to any Customers. Manufacturer shall send copies to VP Exports of any written acceptances on commissionable orders.
c. Manufacturer shall have the sole right of credit approval or credit refusal for Customers in all cases.
d. VP Exports shall be responsible for all payments for the goods supplied on orders received by VP Exports. Manufacturer shall render all invoices directly to VP Exports. VP Exports shall make invoice payments directly to Manufacturer.
e. Manufacturer shall furnish VP Exports, at no expense to VP Exports, samples, catalogues, literature and any other material necessary for the proper promotion and sales of its products in the territory.
f. Manufacturer agrees to provide VP Exports with no-value samples of the Products as reasonably requested by VP Exports.
g. DELIVERY: Manufacturer shall arrange the delivery of the Products in cooperation with VP Exports. In case the shipping date is changed after confirmation, Manufacturer must inform VP Exports in advance. Manufacturer is responsible to deliver all Products to Manufacturer’s warehouse
5. PRODUCT WARRANTY AND PRODUCT AVAILABILITY
a. Any warranty for the Products shall run directly from Manufacturer to the VP Exports, and pursuant to the warranty the Customer shall return any allegedly defective Products to VP Exports or designated depot. Manufacturer must accept and be wholly responsible for defective Products.
b. Under no circumstances shall Manufacturer be responsible to VP Exports or any other party for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to any cause beyond Manufacturer’s reasonable control.
6. VP EXPORT’S RELATIONSHIP AND CONDUCT OF BUSINESS
a. VP Exports shall maintain sales offices in its assigned Territory and shall use its best efforts and devote such time as may be reasonably necessary to sell and promote the sale of Company's Products within the Territory.
b. VP Exports will conduct all of its business in its own name and in such manner as it may see fit. VP Exports will pay all expenses of its office and activities and be responsible for the acts and expenses of its employees. Manufacturer agrees to train and educate VP Exports to the extent necessary for the purposes of the Agreement.
c. VP Exports shall not, without Manufacturer’s prior written approval, alter, enlarge, or limit orders, make representations or guarantees concerning Manufacturer’s Products or accept the return of, or make any allowance for such Products.
d. VP Exports agrees that, during the term of this Agreement, it will not promote or offer to sell any goods which are competitive with or substantially similar to the Products listed in Exhibit A unless agreed upon beforehand, in writing, by both parties.
7. USE OF TRADEMARKS AND TRADENAMES
VP Exports recognizes and concedes for all purposes that all trademarks, trade names, or identifying slogans affixed to the Products or any accompanying labels, containers, and cartons, whether or not registered, constitute the exclusive property of Manufacturer and cannot be used except in connection with promoting and selling Products. During the term of this Agreement, VP Exports is authorized by Manufacturer to use Manufacturer’s trademarks and logo in connection with VP Exports promotion of Manufacturer products and public relations announcements, provided that VP Exports use of such trademarks and logo shall be in accordance with Manufacturer’s policies. VP Exports shall have no interest in such trademarks or logo except as herein expressly provided, and VP Exports use of such trademark and logo shall cease immediately upon termination or expiration of this Agreement.
8. INDEMNIFICATION
a. Manufacturer shall be solely responsible for the design, development, supply, production, and performance of its Products and the protection of its trade names. Manufacturer agrees to indemnify and hold VP Exports harmless against and to pay all losses, costs, damages and expenses whatsoever, including reasonable attorney fees, which VP Exports may sustain or incur on account of infringement or alleged infringement of patents, trademarks, or trade names, resulting from the sale of Manufacturer Products, or arising on account of warranty claims or product liability matters. VP Exports will promptly deliver to Manufacturer any notices or papers served upon it in any proceeding covered by this indemnity, and Manufacturer will defend the same at its expense. VP Exports shall, however, have the right to participate in the defense at its own expense.
b. VP Exports shall be solely responsible for, and shall indemnify and hold Manufacturer free and harmless from, any and all claims, damages or lawsuits (including Manufacturer’s attorney's fees) arising out of the acts of VP Exports. Manufacturer will promptly deliver to VP Exports any papers served upon it in any proceeding covered by this indemnity, and VP Exports will defend the same at its expense. Manufacturer shall, however, have the right to participate in the defense at its own expense.
9. TERMINATION
a. This Agreement shall be effective on the day of ___ of _________ 2012 and shall continue until ___ of __________ 2013. It shall automatically be renewed from year to year thereafter unless terminated by either party upon ninety (90) days written notice to the other by registered or certified mail prior to the end of the initial term of this Agreement, or any renewal term.
b. Termination for Convenience: This Agreement may be terminated by either party for any reason at any time by giving the other party written notice ninety (90) days in advance. After the first year of service, if Manufacturer terminates VP Exports under this clause, VP Exports will be entitled to a termination settlement of one month's compensation beyond ninety (90) days period (based on the average monthly commission of the twelve (12) full months prior to the termination notice plus any applicable retainer) for each year or fraction thereof of representing Manufacturer.
c. Termination for Cause: If either party defaults in the performance of any provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within thirty (30) days, this Agreement will be terminated. If the default is not cured in the good faith judgment of the party providing such notice, this Agreement shall automatically terminate at the end of that period. In addition, within three (3) months of the date hereof, the parties hereto shall amend this Agreement by adding an Exhibit G hereto, such exhibit to specify a mutually agreed upon revenue forecast in respect of the sales by VP Exports to Customers for the remainder of the initial one-year term of this Agreement. If, after the execution of such amendment (or any subsequently agreed upon revenue forecast), VP Exports is unable to meet the revenue targets specified in such Exhibit G, the Manufacturer may terminate this Agreement upon thirty (30) days' written notice to VP Exports. The parties hereto shall subsequently amend such Exhibit G prior to the anniversary of the date hereof (and each succeeding anniversary thereafter).
d. Termination for Insolvency: This Agreement shall terminate, without notice,
i. upon the institution by or against either party for insolvency, receivership or bankruptcy proceedings,
ii. upon VP Exports making an assignment for the benefit of creditors, or
iii. upon VP Exports dissolution.
e. Sale of Manufacturer’s business: In the event Manufacturer sells or otherwise disposes of its stock or assets, or merges or reorganizes Manufacturer in a manner which affects the production or sale of the Products being promoted and sold by VP Exports, or in the event Manufacturer changes the legal structure of its business entity, Manufacturer shall pay VP Exports commissions for all orders booked through the end of the notice period as provided in this Agreement, regardless of whether or when shipped by Manufacturer or its successor or acquirer.
10. RIGHTS UPON TERMINATION
Upon termination of this agreement for any reason, VP Exports shall be entitled to:
a. Commissions on all orders calling for shipment to Customers into VP Exports’ Territory which are dated or communicated to Manufacturer prior to the effective date of termination, regardless of when such orders are shipped.
b. Any partial termination of territory or products will be subject to the same terms and conditions as if the entire agreement were terminated.
11. GENERAL
This Agreement constitutes the entire understanding of the parties; shall supersede any other oral or written agreements; and shall be binding upon and inure to the benefit of the parties' successors and assigns. It may not be modified in any way without the written consent of both parties. VP Exports shall not have the right to assign this agreement in whole or in part without Manufacturer’s written consent.
12. CHOICE OF LAWS
This Agreement shall be interpreted according to the laws of Orange County, in the State of Florida in the United States of America without reference to its rules regarding conflicts of laws.
13. DISPUTES
a. Each of the parties hereto irrevocably consents to the exclusive jurisdiction of the courts of Orange County, in the State of Florida in the United States of America, in connection with any action or proceeding arising out of or relating to, or a breach of, this Agreement, or any document or instrument delivered in connection with this Agreement.
b. If any clause in this Agreement is found to be unreasonable, unconscionable or illegal, that clause shall be amended or modified by consent of both parties.
EXHIBIT A
PRODUCTS
1. __________________
2. __________________
3. __________________
4. __________________
5. __________________
EXHIBIT B
TERRITORY
VP Exports normal sales coverage territory is globally, excluding Vietnam.
EXHIBIT C
HOUSE ACCOUNTS
1. ______________________________________________________________________
2. ______________________________________________________________________
3. ______________________________________________________________________
4. ______________________________________________________________________
5. ______________________________________________________________________
6. ______________________________________________________________________
7. ______________________________________________________________________
8. ______________________________________________________________________
9. ______________________________________________________________________
10. ______________________________________________________________________
EXHIBIT D
COMMISSIONS
VP Exports shall be entitled to receive commissions on all Products sold to Customers in the Territory, excluding sales made to House Accounts. 100% of commissions for commissionable sales to Customers shall be earned when the Product is shipped and invoiced by Manufacturer. VP Exports shall receive a commission equal to 5% of net sales to Customers. After 90 days from start of contract, if Manufacturer is satisfied with VP Exports’ services, Manufacturer shall begin paying VP Exports a baseline sales retainer for its services. Manufacturer agrees to pay a baseline sales retainer of $2,000 USD per month after first 90 days of Agreement. Commission and sales retainer amount is due and payable on the 7th of the month invoiced. Based on a March 1, 2012 launch, the first payment would be due on March 7, 2012. From time to time during the term of this Agreement, Manufacturer may agree to provide bonuses to VP Exports for sales of Products to designated accounts or for achieving predetermined sales targets by region. The sales targets in respect of such bonuses shall be agreed upon in writing in advance by the Manufacturer and VP Exports. When VP Exports earns such bonuses, bonuses will be paid at the time of payment of usual commissions for the Products sold.
IN WITNESS WHEREOF, the parties hereto have executed this Manufacturer's Agent Agreement as of the date specified below.
Signed by __________________________________ (printed name)
__________________________________________
(signature)
for and on behalf of
__________________________________________
(VP Exports)
on this ____ day of ______________________, 2012
VP Exports, Inc.
173 Kassik Circle
Orlando, FL 32824 USA
82-84 Thang Long Street
Ward 4, Tan Binh District
Ho Chi Minh City, Vietnam
+84 (0163) 6614 048
+84 (0163) 2119 801
Signed by __________________________________ (printed name)
__________________________________________
(signature)
for and on behalf of
__________________________________________
(Manufacturer)
on this ____ day of ______________________, 2012
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