Standard Terms and Conditions
EXCLUSIVE DISTRIBUTION AGREEMENT
STANDARD TERMS AND CONDITIONS
This Agreement is as of May 2024, and is between
BABY BREZZA ENTERPRISES LLC, a limited liability company organized under the laws of New York, having an office at 1 East 33rd Street, 3rd floor, New York, New York, 10016, United States of America, hereinafter referred to as “BABY BREZZA” and “Distributor” as defined in the binding Term Sheet and supplements that Term Sheet as referenced therein.
Hereinafter jointly referred to as the “Parties” and each individually as a “Party”.
WHEREAS:
1. BABY BREZZA manufactures and markets baby food related products and
appliances.
2. Distributor has expertise and experience in marketing and selling such products in the Territory.
3. BABY BREZZA wishes to appoint Distributor as its exclusive distributor for the
Products in the Territory on the terms and conditions set forth herein and in the Term Sheet and Distributor is willing to accept such appointment.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
The following terms used in this Agreement shall have the following meanings:
1.1. “Agreement” shall mean the Term Sheet signed between the Parties and this
Exclusive Distribution Agreement including the Schedules attached hereto, as the same may be amended or modified from time to time as provided herein.
1.2. “Approved Customers” are customers listed on the Term Sheet, as same may be updated from time to time in accordance with Section 2 below.
1.3. “Commencement Date” shall mean the date of commencement of this Agreement, agreed by the Parties.
1.4. “Control” means the ability to direct the affairs of another Person, whether by
virtue of the ownership of shares or other equity, contract or otherwise.
1.5. “Person” means any person, agency, firm, partnership, limited liability company, corporation, trust or other entity.
1.6. “Products” shall mean those products manufactured by or on behalf of BABY
BREZZA as are set forth in the Term Sheet.
1.7. “Territory” shall mean all the countries, areas and distribution channels
specifically set forth in the Term Sheet and any other countries or areas as may be agreed upon in writing by the Parties.2
1.8. “Trademarks” shall mean the trademarks, tradenames, symbols, slogans,
emblems, logos or other designs used or which will be used in connection with the Products.
2. APPOINTMENT
2.1. Subject to the terms and conditions of this Agreement, BABY BREZZA grants to Distributor the exclusive right to distribute the Products in the Territory during the Term (defined below), provided the Minimum Requirements (defined below) are met. Sales of Products may only be made to Approved Customers in the Territory.
2.2. BABY BREZZA agrees to permit Distributor, in Distributor’s own name and for
its own account, to buy and import Products from BABY BREZZA and sell such Products in the Territory on an exclusive basis in accordance with the terms of this Agreement.
2.3. During the Term, BABY BREZZA shall not engage in active sale of the Products to any Person (other than Distributor) located within the Territory or to any distributor, sales agent or sales representative (other than Distributor) for active resale within the Territory. Nothing in this Agreement shall prohibit BABY BREZZA or its affiliates from providing any service or products of any nature, other than the sale of the Products, directly or indirectly, to third parties in
the Territory.
2.4. Distributor may not enter into agency, sub-distribution or similar agreements with third parties for the marketing, sale or distribution of the Products in the Territory, without the written consent of BABY BREZZA, in its discretion. Distributor shall be responsible for all acts and omissions of all approved sub-distributors, agents and other Persons retained by Distributor in
connection with the marketing, sale or distribution of the Products and hereby guarantees that such Persons shall adhere to all terms of this Agreement as if such Person was Distributor and shall not take any action that Distributor is prohibited from taking hereunder. BABY BREZZA may condition its approval or continued approval of any such Person on its execution and delivery of
an agreement agreeing to be bound by the terms hereof and such other agreements and documents reasonably required by BABY BREZZA and Distributor shall cause such Person to execute such agreements and documents. The approval of a sub-distributor by BABY BREZZA shall not relieve
Distributor from any of its obligations hereunder. If any sub-distributor or agent violates any terms of this Agreement, BABY BREZZA may revoke its approval of such sub-distributor or agent.
2.5. Distributor shall not distribute or sell Products outside the Territory or distribute, sell or otherwise dispose of Products, directly or indirectly, to any Person who Distributor knows or has reason to believe distributes, sells or otherwise disposes of Products outside the Territory.
Distributor shall immediately report to BABY BREZZA any and all inquiries from Persons outside the Territory or from customers or other Persons within the Territory regarding the distribution or sale of Products outside the Territory. If Distributor discovers or is advised by BABY BREZZA that any of its customers have distributed, sold or otherwise disposed of any Products outside the
Territory, Distributor will immediately cease selling Products to such customer (and such customer shall no longer be deemed an Approved Customer hereunder). Distributor shall have no right to manufacture Products under the Trademarks.
2.6. In the event that BABY BREZZA permits Distributor to purchase and resell
products other than the Products during the Term, such purchase and resale shall be subject to all terms and conditions contained herein, provided, however, that unless BABY BREZZA agrees otherwise in writing, any such resale shall be on a non-exclusive basis.
3. TERM
3.1. The term of this Agreement (the “Term”) shall commence on the Commencement Date and, unless terminated earlier in accordance with this Agreement, shall continue through December 31, 2025 provided, however, that Distributor shall have the option to extend the Term by one additional one (1) year period provided that the Minimum Requirements are met (or will be met by December 31, 2025) and that written notice is sent and received by BABY BREZZA between 90 and 120 days prior to December 31, 2025.
4. EARLIER TERMINATION
4.1. Without limiting any other rights or remedies to which it may be entitled, either Party may give notice in writing to the other terminating this Agreement immediately if:
(a) an order is made or a resolution is passed for the winding up of the other
Party, or an order is made for the appointment of an administrator to manage the affairs, business
and property of the other Party, or such an administrator is appointed, or a receiver is appointed
over any of the other Party’s assets, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or the other Party takes or suffers any similar or analogous action in consequence of debt, or an arrangement
or composition is made by the other Party with its creditors or an application to a court for protection from its creditors is made by the other Party;
(b) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(c) the other Party breaches any of its obligations, representations, covenants
or warranties under this Agreement and such failure or breach continues for a period of 15 calendar days after that Party has been notified of such failure or breach;
(d) there is a change of Control of Distributor; or
(e) the other Party purports to assign or otherwise transfer its rights or
obligations under this Agreement in breach of Section 22.4 below.
4.2. Without limiting any other rights or remedies to which it may be entitled, BABY
BREZZA may give notice in writing to Distributor terminating this Agreement immediately if:
(a) Distributor fails to make any payment to BABY BREZZA hereunder
(b) Distributor sells any Products outside of the Territory or to any Person that
is not an Approved Customer or commits a breach of Sections 2.4, 2.5, 6.2 - 6.5, 6.7, 6.8, 12, 17 or 18; or
(c) Distributor fails to meet the Minimum Requirements in any given year.
5. INDEPENDENT CONTRACTORS
5.1. Distributor and BABY BREZZA are independent contractors with respect to each other. Nothing contained herein shall be deemed to create any association, partnership, employment or agency relationship between the Parties.
5.2. Distributor shall be fully responsible for its employees, independent contractors, vendors, agents and consultants (collectively, its “Representatives”), none of whom shall be deemed employed or retained by BABY BREZZA, and for all acts and omissions of such persons.4
6. GENERAL DUTIES OF DISTRIBUTOR
6.1. Distributor shall:
(a) exercise all care, skill and efforts in the performance of its duties arising
from this Agreement;
(b) use reasonable efforts to market and sell the Products in the Territory,
including online;
(c) prior to the issuance of the first purchase order, procure insurance with a
reputable insurance company, at its own cost, for all inventory of the Products held by it against all reasonable risks for at least their full replacement value and produce to BABY BREZZA proof
of such insurance;
(d) employ a sufficient number of suitably qualified personnel to ensure the
proper fulfillment of Distributor’s obligations under this Agreement;
(e) perform all of its obligations hereunder in a reasonable manner;
(f) maintain at all times during the Term adequate inventory of the Products to
satisfy reasonably anticipated customer demand; and
(g) inform BABY BREZZA immediately of any change of Control of
Distributor and of any change in its organization or method of doing business which might affect
the performance of Distributor’s duties under this Agreement.
(h) Aid BABY BREZZA in the acquisition and registration of websites using
its name.
6.2. Distributor shall not:
(a) represent itself as an agent of BABY BREZZA for any purpose;
(b) pledge BABY BREZZA’s credit;
(c) give any condition or warranty on BABY BREZZA’s behalf;
(d) damage, hinder or infringe upon the reputation of BABY BREZZA as a
supplier of quality products;
(e) make any representation on BABY BREZZA’s behalf; or
(f) commit BABY BREZZA to any contracts.
6.3. Distributor shall not, without BABY BREZZA’s prior written consent, make any
promises or guarantees about the Products beyond those contained in the promotional material
supplied by BABY BREZZA.
6.4. Distributor shall not use any of the Products as giveaways, prizes or premiums
except in promotions that have received the prior written approval of BABY BREZZA, and
Distributor shall inform its customers that they may not do so. In the event that any such customer
shall do so, upon notice by BABY BREZZA to Distributor, no further sales of Products shall be
made by Distributor to such customer (whereupon such customer shall no longer be deemed an
Approved Customer hereunder).5
6.5. Distributor shall comply with all applicable laws, ordinances, regulations, and other
requirements, if any, of any and all national, state, municipal and other government authorities
(collectively, “Laws”), and obtain and maintain all permits, licenses and other consents necessary
to perform Distributor’s duties under this Agreement. Distributor shall immediately provide
BABY BREZZA with copies of any communication from national, state, municipal and other
government authorities, including, without limitation, any government ministry, agency,
department, court or other body, that relates to or affects the Trademarks or the distribution and
sale of the Products. Distributor shall not engage in any unfair or illegal trade practices.
Distributor shall comply with all applicable Laws relating to anti-bribery and anti-corruption and
shall have and maintain in place throughout the Term its own policies and procedures to ensure
compliance with such requirements, and will enforce them where appropriate. Distributor shall
promptly report to BABY BREZZA any request or demand for any undue financial or other
advantage of any kind received by Distributor in connection with the performance of this
Agreement. Distributor warrants that it has no public officials as direct or indirect owners, officers
or employees and agrees to immediately notify BABY BREZZA (in writing) if a public official
becomes an officer or employee of Distributor or acquires a direct or indirect interest in Distributor.
Distributor shall ensure that all of its agents and permitted subcontractors, if any, who perform
services or provide goods in connection with this Agreement do so only on the basis of a written
contract which imposes on and secures from such persons terms equivalent to those imposed on
Distributor in this section. Distributor shall be responsible for the observance and performance by
such Persons of such terms, and shall be directly liable to BABY BREZZA for any breach thereof
by such persons.
6.6. Distributor shall maintain appropriate, up-to-date and accurate records to enable the
immediate recall of any Products or batches of Products from the retail or wholesale markets.
These records shall include records of deliveries to customers (including batch numbers, delivery
dates, names and addresses of customers, telephone numbers, fax numbers and e-mail addresses).
Distributor shall, at BABY BREZZA’s cost, give any assistance that BABY BREZZA shall
reasonably require to recall, as a matter of urgency, Products from the retail or wholesale market.
6.7. Distributor shall not change or remove any of the labels, markings or other
materials attached to the Products, nor add or attach any labels, markings or other materials to the
Products, unless, in each case, requested by BABY BREZZA to do so or otherwise approved in
advance in writing by BABY BREZZA.
6.8. Distributor shall not solicit orders from or sell the Products to the United States
government or any department, agency or military base thereof located in the Territory, or to any
organization that resells to military or government personnel (and their families) of the United
States located in the Territory, or to any duty free shops or into a duty free zone, in each case
without prior written approval of BABY BREZZA.
6.9. Distributor shall maintain at its principal place of business full, complete and
accurate books and records with regard to its activities under this Agreement. Such books and
records shall include, without limitation, production reports, warehouse receipts, bills of lading,
customs documents, letters of credit and shipping documents, purchase orders, credit memos, and
other similar and related documentation. Upon the request of BABY BREZZA, Distributor shall
provide BABY BREZZA with copies of any of its books or records relating to the transactions
contemplated by this Agreement and compliance by Distributor with its obligations under this
Agreement and shall certify as to the accuracy and completeness of such books and records. In6
addition, Distributor shall furnish to BABY BREZZA, within 15 days of each month, a written
report in form and substance reasonably satisfactory to BABY BREZZA, detailing the following
information: (i) gross sales, (ii) details of sales, (iii) service stock, (iv) outstanding customer
orders, and (v) such other information as BABY BREZZA shall reasonably request.
7. GENERAL DUTIES OF BABY BREZZA
7.1. BABY BREZZA undertakes to work efficiently to improve/modify the Products
from time to time with a view to developing the sale of the Products in the Territory, at its sole
discretion.
7.2. BABY BREZZA agrees that at all times during the Term it shall:
(a) make reasonable commercial efforts to supply the Products to Distributor
for resale to Approved Customers in the Territory in accordance with Distributor’s forecast
requirements;
(b) restrict other distributors to which it sells the Products from making active
sales in the Territory;
(c) promptly pass to Distributor all inquiries or orders it receives from any
Person (whether inside or outside the Territory) for the supply of any Product for sale in the
Territory.
(d) provide any information and support that may be reasonably requested by
Distributor to enable it to properly and efficiently to discharge its duties under this Agreement;
(e) endeavor to communicate its approval or rejection of any promotional
information or other material submitted by Distributor within 7 days of receipt; and
(f) sell the spare parts requested by Distributor that it needs to enable it to fulfil
its repair and service obligations under this Agreement, subject to availability.
7.3. BABY BREZZA may make changes to the specifications of the Products, provided
the changes do not adversely affect the quality of the Products. BABY BREZZA shall give at least
three months’ notice of any changes to Product specifications to Distributor.
8. FORECAST, PURCHASE ORDERS AND DELIVERY
8.1. Prior to the Commencement Date, Distributor shall notify BABY BREZZA, in
writing, of its forecast of the quantities of each type of Product that it expects to buy from BABY
BREZZA for delivery during the ensuing 6-month period beginning on the Commencement Date.
Distributor shall provide updated 6 month forecasts during the Term no later than 30 days prior to
the expiration of the period covered by the most recent forecast.
8.2. Distributor shall issue purchase orders from time to time during the Term providing
for the purchase of Products from BABY BREZZA, with shipment from BABY BREZZA or
BABY BREZZA’s suppliers on a FOB (free on board) factory basis, and Distributor shall take
title and responsibility for the Products upon tender to Distributor’s carrier at the factory. In this
respect, the Parties agree to abide by the terms set forth in the Incoterms 2000 (or such other
amended version) published by the International Chamber of Commerce. If BABY BREZZA
accepts a purchase order, it will indicate its acceptance by returning a countersigned purchase order
to Distributor (a “Purchase Order”). BABY BREZZA shall include on the countersigned Purchase7
Order a commercially feasible reasonable estimate for the actual delivery date of that shipment of
Products. Purchase Orders may be proposed and accepted by email or in other written form. In
the event of a conflict between the terms of any Purchase Order (including any pre-printed terms
thereon) and the terms of this Agreement, the terms of this Agreement shall prevail.
8.3. If Distributor fails to pick-up or take delivery of any Products or if their pick-up or
delivery is delayed at Distributor’s request, Distributor shall be responsible for all storage and
other charges incurred (including without limitation third party charges), which shall be payable
by Distributor on demand or added to the price of the Products, it being acknowledged that that
neither BABY BREZZA nor its third party factories will store Products beyond the date on which
pick-up or delivery is scheduled. Unless otherwise agreed such failure or delay shall not affect the
date of payment for the relevant Products.
8.4. If Distributor fails to pick-up or take delivery of any Products or if their pick-up or delivery is delayed at Distributor’s request, Distributor shall be responsible for the full FOB cost of the Products as well as all storage and other charges incurred (including without limitation third party charges), which shall be payable by Distributor on demand or added to the price of the Products, it being acknowledged that that neither BABY BREZZA nor its third party factories will store Products beyond the date on which pick-up or delivery is scheduled. Unless otherwise agreed such failure or delay shall not affect the date of payment for the relevant Products.
8.5. If an excess or shortfall in delivery of Products picked up or received by Distributor
occurs due to BABY BREZZA’S error, or that of its representative or its carrier, BABY BREZZA
shall, at BABBY BREZZA’s option:
(a) in the case of an excess, either meet the reasonable costs of storage of some
or all of the excess until the relevant Products are sold, or meet the freight and insurance charges
for the return of some or all of the excess; or
(b) in the case of a shortfall, either credit one hundred per cent (100%) of the
relevant portion of the price of those Products, or transport replacement Products to Distributor’s
customer(s) or Distributor’s warehouse or other storage location,
in each case provided that BABY BREZZA is notified in writing within thirty (30) days of the
date of receipt of the Products by Distributor. In the absence of such a notification from Distributor,
the correct quantity of Products will be deemed to have been supplied. In no event will Distributor
be entitled to refuse to accept the entirety of any delivery by reason only of an excess or shortfall.
Notwithstanding anything to the contrary contained herein (including, without limitation in
Section 13.2), this Section 8.5 contains Distributor’s sole remedies for any Product excess or
shortfall.
8.6. In each year during the Term, Distributor shall place orders with BABY BREZZA
for the Minimum Requirements for that year as set out in Section 10.
8.7. Distributor shall be required to include in each order such number of replacement
parts for the Products to meet customary customer demand. Distributor can order spare parts as so
desired at their cost. The terms and conditions of the sales of spare parts shall be the same as in
respect of the purchase and sale of Products.
8.8. Except as otherwise agreed to by BABY BREZZA and Distributor, any Products
that are defective in design, materials or workmanship and are rejected (in writing) within 15 days8
of receipt of those Products by Distributor may be returned to BABY BREZZA by Distributor if
such defective Products are in excess of 5% of the Products covered by the applicable Purchase
Order. BABY BREZZA shall, at its option, repair, replace or issue a refund for all such defective
Products and shall reimburse Distributor for shipping, customs and duties relating to the return of
such Products. All such defective Products shall be returned to BABY BREZZA at its facility
unless BABY BREZZA instructs otherwise. Any other provision of this Agreement
notwithstanding, Distributor’s remedies under this Agreement for any defective Products shall be
limited to the remedies provided in this Section 8.8 and under no circumstances shall BABY
BREZZA be liable for money damages, lost profits, consequential, incidental, exemplary or
similar damages. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS
AGREEMENT, THE PRODUCTS SOLD HEREUNDER ARE PROVIDED ON AN “AS IS”
BASIS, AND BABY BREZZA MAKES NO WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.9. All sales made hereunder are final. Distributor may not return any Products to
BABY BREZZA except as explicitly set forth herein.
8.10. Unless BABY BREZZA agrees otherwise in writing, Products may not be ordered
in less than the minimum quantities specified by BABY BREZZA. Any sales below the minimum
quantities shall be made in BABY BREZZA sole discretion and BABY BREZZA may impose an
upcharge on such sales, which shall be payable by Distributor at the time of its payment of the
purchase price for the Products included in such order.
9. PRICES AND PAYMENT
9.1. Purchases of the Products made by Distributor shall be at the prices (in US Dollars)
set out in the Term Sheet (the “Prices”). BABY BREZZA reserves the right to increase Prices,
upon at least 60 days’ prior written notice to Distributor and no more often than once per calendar
year, not to exceed 10% in any 12 month in the event its costs rise or to account for inflation or
for changes to the Products.
9.2. BABY BREZZA will use commercially reasonable efforts to supply the Products
by the delivery date set forth in the applicable Purchase Order.
9.3. Except as otherwise agreed by BABY BREZZA and Distributor with regard to
individual orders, the Price shall be payable, without set-offs, counterclaims or deductions of any
type or kind, by (a) a letter of credit, in form and substance acceptable to BABY BREZZA in its
discretion, or (b) in cash, fifty percent (50%) of which shall be payable at the time of order and
fifty percent (50%) of which shall be payable no later than ten days before the delivery date. All
other purchase terms shall be as set forth on BABY BREZZA’s invoice for such Products. Any
additional or contrary terms for the purchase of Products proposed by Distributor, for all purposes,
including, without limitation, under Section 2-207 of the Uniform Commercial Code as in effect
from time to time, are hereby rejected by BABY BREZZA.
9.4. Any and all expenses, costs and charges incurred by Distributor in the performance
of its obligations under this Agreement shall be paid by Distributor, unless BABY BREZZA has
expressly agreed in advance in writing to pay these expenses, costs and charges.
9.5. Distributor shall be responsible for the collection, remittance and payment of any
or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or9
other authority in respect of the purchase, importation, sale, lease or other distribution of the
Products.
10. MINIMUM REQUIREMENTS
10.1. The Parties agree in good faith to a minimum purchase order volume fixed on a
per-year basis (the “Minimum Requirements”) for the Term, as set forth on the Term Sheet:
For the purposes of this Clause 10.1, any Minimum Requirement shall be automatically
reduced by the amount attributable to: (A) BABY BREZZA’S failure to meet an order in
accordance with its terms, including due to Products being out of stock; or (B) a Force Majeure
Event.
10.2. In the event the Minimum Requirements are not met for any year, this Agreement
shall automatically revert to a non-exclusive agreement and BABY BREZZA will have the option
to terminate this Agreement upon written notice to Distributor.
10.3. Distributor further agrees that in the event Distributor fails to submit an acceptable
purchase order to BABY BREZZA within 4 months of the Commencement Date, BABY BREZZA
may terminate this Agreement upon written notice to Distributor.
10.4. For purposes of calculation of the Minimum Requirements for any year, it is agreed
that the annual periods to be taken into consideration shall be the calendar year.
11. COMPLIANCE WITH LAWS AND REGULATIONS; TESTING
11.1. Distributor shall be responsible for obtaining any necessary import licenses or
permits necessary for the entry of the Products into the Territory and for their delivery to
Distributor and to the Approved Customers. Distributor shall be responsible for any customs
duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the
importation and delivery of the Products.
11.2. Distributor warrants to BABY BREZZA that it has informed BABY BREZZA of
all Laws affecting the manufacture, sale, packaging and labeling of the Products which are in force
within the Territory or any part of it as of the date of this Agreement. Distributor shall give BABY
BREZZA as much advance notice as reasonably possible of any prospective changes in any such
Laws.
11.3. The Parties agree to work together to ensure that the Products have and maintain a CE / CB Mark during the Term. All licensing fees, testing, testing materials, certificates, samples and courier costs required to obtain such certification shall be the obligation of Distributor.
11.4. Distributor shall test all baby formulas in the Territory applicable to the Formula Pro Advanced following BABY BREZZA’s testing guidelines and email the results of those tests to BABY BREZZA for confirmation and publication on global websites. Formula testing audits must be conducted every six months to maintain accuracy and relevance and any new formula
powder introduced into the market must be tested in a timely manner. Any customer request for a
specific formula powder setting must be facilitated within two weeks of the request. Distributor shall be fully responsible for issuing disclaimers on their websites clearly indicating that Distributor is solely responsible for the advertised settings based on their testing.
12. INTELLECTUAL PROPERTY
12.1. BABY BREZZA represents and warrants that it owns all right, title and interest in and to the Products. Distributor shall not obtain any rights to the Products or to any associated parts, components, designs, logos, drawings, information, literature or technology, or to any improvements made to any of the foregoing, whether or not trademarked, copyrighted or patentable, by virtue of this Agreement or the performance by the Parties of their respective obligations hereunder, all of which shall remain exclusively with BABY BREZZA and its
licensors. If notwithstanding the foregoing, Distributor obtains any such rights, it will promptly assign them to BABY BREZZA without further consideration. The Parties agree that all use of the Products shall inure to the benefit of BABY BREZZA.
12.2. BABY BREZZA hereby grants to Distributor the non-exclusive right in the
Territory to use the Trademarks during the Term solely in connection with its promotion, advertisement and sale of the Products in accordance with the terms of this Agreement. Distributor acknowledges and agrees that all rights in the Trademarks shall remain with BABY BREZZA.
Distributor has and will acquire no right in the Trademark by virtue of the discharge of its obligations under this Agreement, except for the right to use the Trademarks as expressly provided in this Agreement.
12.3. Distributor may not use any Trademarks in any manner, including, without
limitation, on any products, literature or promotional materials, without first obtaining the prior
written approval of BABY BREZZA for each such use.
12.4. BABY BREZZA makes no representation or warranty about the validity or
enforceability of the Trademarks, nor as to whether they infringe any intellectual property rights of third parties in the Territory.
12.5. Distributor shall not sub-license, transfer or otherwise deal with the rights of use of the Trademarks granted under this Agreement.
12.6. Distributor shall not do, or omit to do, anything in its use of the Trademarks that could adversely affect their validity. Nor shall it attempt to register or acquire trademarks or intellectual property bearing any of the marks owned by BABY BREZZA.
12.7. Distributor shall immediately enter into any document necessary for the recording, registration or safeguarding of BABY BREZZA’s trademark rights with BABY BREZZA for the marketing of the Products under the Trademarks in a form satisfactory to BABY BREZZA.
12.8. Each Party shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Trademarks or any other
intellectual property rights relating to the Products; or
(b) any claim that any Product or the manufacture, use, sale or other disposal
of any Product within the Territory infringes the rights of any third party.
12.9. In respect of any infringement or suspected infringement of the Trademarks or infringements of any other intellectual property rights relating to the Products within the Territory:
(a) BABY BREZZA shall, in its absolute discretion, decide what action to
take in respect of the matter (if any);11
(b) BABY BREZZA shall conduct and have sole control over any consequent
action that it deems necessary; and
(c) BABY BREZZA shall pay all costs in relation to that action and shall be
entitled to all damages and other sums that may be paid or awarded as a result of that action.
12.10. In respect of any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory infringes the rights of any third party, BABY BREZZA shall, in its absolute direction, decide what action to take with respect to such matter and Distributor shall cooperate with BABY BREZZA and provide any assistance reasonably requested by BABY BREZZA with respect to such matter.
13. GENERAL INDEMNIFICATION
13.1. Distributor shall defend, indemnify, and hold harmless BABY BREZZA and its affiliates and their respective employees, consultants, officers, managers, members, vendors and agents, from and against any and all claims, actions, damages, losses, demands, liabilities, or expenses (including reasonable attorneys’ fees and costs) arising from (a) any claim that Distributor’s execution, delivery or performance of this Agreement is unlawful or violates any
rights of third parties under agreements with Distributor or its affiliates, (b) any negligence or misconduct of Distributor or any of its Representatives including an errors in testing the formula, or (c) any breach of this Agreement by Distributor. This duty to indemnify BABY BREZZA shall be in addition to any other obligations of Distributor. Distributor will have the right to conduct the defense of any such claim or action and, consistent with BABY BREZZA’s rights hereunder,
all negotiations for its settlement; provided, however, that BABY BREZZA is allowed to participate in such defense or negotiations to protect its interests. Any proposed settlement will be subject to the prior written approval of BABY BREZZA.
13.2. BABY BREZZA shall defend, indemnify, and hold harmless Distributor and its affiliates and their respective employees, consultants, officers, managers, members, vendors and agents, from and against any and all claims, actions, damages, losses, demands, liabilities, or expenses (including reasonable attorneys’ fees and costs) arising from (a) any claim that BABY BREZZA’S execution, delivery or performance of this Agreement is unlawful or violates any
rights of third parties under agreements with BABY BREZZA or its affiliates, (b) any negligence or misconduct of BABY BREZZA or any of its Representatives, or (c) any breach of this Agreement by BABY BREZZA. Except as otherwise provided herein, this duty to indemnify
Distributor shall be in addition to any other obligations of BABY BREZZA. BABY BREZZA will have the right to conduct the defense of any such claim or action and, consistent with Distributor’s rights hereunder, all negotiations for its settlement; provided, however, that Distributor is allowed to participate in such defense or negotiations to protect its interests. Any proposed settlement will be subject to the prior written approval of Distributor.
14. SPECIFIC INDEMNIFICATION
14.1. BABY BREZZA hereby indemnifies Distributor, its affiliates, and their respective officers and employees, and their successors and permitted assigns, against and holds them harmless from any and all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and expenses) incurred by any of them in respect of any:
(a) damage to property, death or personal injury arising from any defect in the
design or manufacture of, or the materials used within, any Product (a “Product Liability Claim”), provided such Product is: (i) determined to be defective by a final non-appealable decision of a court of competent jurisdiction, or (ii) delivered to BABY BREZZA and determined by BABY BREZZA through testing to be defective; and (b) infringement of any third party intellectual property right resulting from the purchase and/or sale of any Product by Distributor hereunder (a “Third Party IPR Claim”), except to the extent the claim arises as a result of the action or omission of Distributor.
14.2. Each party shall, as soon as it becomes aware of a matter which may result in a Product Liability Claim or a Third Party IPR Claim, or of any infringement or suspected infringement of BABY BREZZA’S Trademarks, give the other party written notice of the details of the matter.
14.3. Notwithstanding anything to the contrary in this Agreement, Distributor shall be entitled to immediately cease to advertise, promote, market, offer for sale, sell or distribute any Product if Distributor or BABY BREZZA has reason to believe that to continue to do so may result in a Product Liability Claim or a Third Party IPR Claim.
14.4. In relation to any matter referred to in Clause 14.2, Distributor shall:
(a) at the request and expense of BABY BREZZA, provide all reasonable
assistance to BABY BREZZA as BABY BREZZA may require to take action under this Clause
14.4;
(b) allow BABY BREZZA the exclusive conduct of any proceedings and take
any action that BABY BREZZA reasonably directs to defend or prosecute the matter, including using professional advisers nominated by BABY BREZZA (at BABY BREZZA’S expense), or to
minimize any future liabilities, including refraining from selling certain Products or recalling
certain Products; and
(c) not admit liability or settle the matter without the prior written consent of
BABY BREZZA.
15. PROMOTION AND MARKETING
15.1. Distributor shall, at its own expense, advertise, market and promote the Products in
the Territory (including on the internet) in such manner as it may think fit, provided that any such
advertising, marketing or promotion is in compliance with any brand use guidelines as notified by
BABY BREZZA in writing from time to time, and annual marketing spend is equal to or greater
than 5% of total purchases. If such guidelines require BABY BREZZA’S prior approval of any
artwork or other material then, irrespective of any contrary or inconsistent provision of such
guidelines, BABY BREZZA must respond within five (5) business days of the submission of the
relevant material (where a business day is any day other than Saturday, Sunday or statutory
holiday in Hong Kong). In the absence of a response from BABY BREZZA within that time
period, BABY BREZZA will be deemed to have approved such material. For the avoidance of
doubt, “marketing spend” shall include funds paid for print advertising; online, digital and social
media; trade shows, and the like, and shall not include Distributor’s internal or ancillary costs such
as personnel or travel expenses.
15.2. BABY BREZZA grants to Distributor during the Term the right to use the
Trademarks in connection with the promotion and the sale of the Products in the Territory, subject
to BABY BREZZA’s approval in each instance.13
15.3. Distributor shall: (a) observe all directions and instructions given to it by BABY
BREZZA for promotion and advertisement of the Products; and (b) not make any statements, or
distribute any written materials, regarding the Products, their functionality, quality or manufacture
without the prior written approval of BABY BREZZA.
15.4. BABY BREZZA shall provide Distributor with information on the advertising and
promotion carried out by BABY BREZZA. BABY BREZZA shall supply any available
promotional and advertising material that Distributor reasonably requests.
15.5. BABY BREZZA shall, where mutually agreed, participate with Distributor in fairs
and exhibitions in the Territory.
16. REPAIR AND MAINTENANCE
16.1. Distributor shall provide an after-sale repair and maintenance service in respect of
the Products in the Territory in accordance with the terms of the service and maintenance manual
provided by BABY BREZZA during the Term and for a period of 90 days after the expiration of
the Term.
16.2. Distributor shall be responsible for handling all customer communications and
repairs within the Territory with respect to the Products. Without limiting the generality of the
foregoing, Distributor shall provide a phone number and email address to BABY BREZZA for
inclusion on materials accompanying the Products, which materials will direct end users of the
Products to contact Distributor for questions, complaints and service regarding the Products.
16.3. Distributor shall promptly respond to all customer service inquiries in a
commercially reasonable manner.
17. NON-COMPETITION1
17.1. Distributor agrees that, during the Term and for three years thereafter, it shall not,
directly or indirectly, (a) contact or communicate with any factory, supplier or other Person
engaged by BABY BREZZA to manufacture any Product (or any component thereof) for the
purpose of causing such Person to produce any products that are similar to the Products for
Distributor or any other Party; (b) manufacture or sell (or cause to be manufactured or sold) any
products that would (if sold in the U.S.) infringe on any BABY BREZZA’s U.S. Patent(s) (then
pending, in effect or post-term) or any products that are similar in functionality to the Products; or
(c) purchase any BABY BREZZA products from any party other than BABY BREZZA. If a
renewal of the rights granted under this Agreement is negotiated, the restrictions contained herein
shall extend for a period of three (3) years after the termination of said renewal. Distributor shall
ensure that its current and former permitted subcontractors and Representatives who have gained
access to any BB Confidential Information do not themselves take any action which Distributor is
forbidden from taking under this Section during the Term and for three years thereafter (whether
or not such Representatives or permitted subcontractors continue to be employed or retained by
Distributor at such time) and Distributor shall be responsible for any failure of such Persons to
comply with this Section. For the avoidance of doubt, this Clause 17 shall not preclude Distributor
from promoting, distributing or selling those products that it is already handling, or those future
1 This section as well as other restrictions in this agreement remain subject to the review and comment by local counsel
to BABY BREZZA for compliance with local laws.14
products which it is contractually obliged to distribute, at the Commencement Date, which
products are listed on the Term Sheet.
18. CONFIDENTIALITY
18.1. Except as required by law or in response to a valid subpoena, Distributor agrees (i)
to keep confidential (A) any and all matters concerning the business affairs and transactions
contemplated by this Agreement and (B) any and all technical information regarding the Products
and all information regarding designs, sales, various trade secrets, inventions, innovations,
processes, records, specifications, marketing, pricing, terms of sale, and production owned by or
licensed to BABY BREZZA or used by BABY BREZZA in connection with the application of
BABY BREZZA’ business, including, without limitation, BABY BREZZA business product
processes, methods, vendors, suppliers, customer lists, accounts and procedures (collectively, “BB
Confidential Information”), and (ii) not to use or disclose such information to any third parties,
except for its Representatives on a need-to-know basis without the prior written consent of BABY
BREZZA, which consent BABY BREZZA may withhold in its sole discretion.
18.2. Except as required by law or in response to a valid subpoena, BABY BREZZA
agrees to keep confidential any and all matters concerning the business, affairs and transactions
contemplated by this Agreement, and not to use or disclose such information to any third parties
except its Representatives on a need-to-know basis without the prior written consent of Distributor,
which consent Distributor may withhold in its sole discretion.
18.3. Notwithstanding the provisions of Section 18.1 and 18.2, “Confidential
Information” shall not include information that is (i) in the public domain at the time of disclosure,
or such later time, through no fault of the disclosing party, (ii) already known to or in the possession
of the disclosing party at the time it obtained such information from the other party, or (iii) received
by the disclosing party from a third-party not bound by this Agreement, who is under no obligation
not to disclose the information.
18.4. Distributor shall take reasonable measures to prevent the theft, damage, loss of or
unauthorized access to the BB Confidential Information. Distributor shall not use any BB
Confidential Information for any purpose other than to perform its obligations under this
Agreement. Without limiting the generality of the foregoing, Distributor shall be prohibited from
using any BB Confidential Information for the purpose of producing or offering any products that
are competitive with any products offered by BABY BREZZA.
18.5. In the event Distributor receives any private or governmental requests, whether by
subpoena or other manner, for any documents, correspondence, data, work papers, reports or other
information containing any BB Confidential Information, then Distributor shall immediately
notify BABY BREZZA and BABY BREZZA shall have the right to participate in Distributor’s
response to any such request by seeking to quash, modify or otherwise respond to the request.
19. EFFECTS OF TERMINATION
19.1. Termination of this Agreement for any reason shall not affect any rights or
liabilities accrued at the date of termination.15
19.2. Upon termination of this Agreement by BABY BREZZA pursuant to Section 4.1
or 4.2 hereof, Distributor shall: (a) immediately cease all sales or other use of the Products;
(b) immediately cease all use of the trademarks (including the Trademarks), trade names,
copyrighted materials, logos, patents or other intellectual property of BABY BREZZA; and
(c) promptly destroy all Products in its possession or control as well as all samples, packaging,
technical pamphlets, catalogues, advertising materials, specifications and other materials,
documents or papers that relate to the Products and/or BABY BREZZA’s business or which
contain any BB Confidential Information that are in Distributor’s possession or control.
19.3. Upon termination of this Agreement as a result of the expiration of the Term (and
not by earlier termination) or the termination by Distributor pursuant to Section 4.1 hereof:
(a) BABY BREZZA shall have the option to buy from Distributor any stocks of
the Products at the same price Distributor paid for them. To exercise the option, BABY BREZZA
must give notice to Distributor within twenty (20) days of termination, stating the quantities of
Products it wishes to buy. Distributor shall deliver these Products to BABY BREZZA within
twenty (20) days of receiving BABY BREZZA’s notice, and BABY BREZZA shall pay for the
Products in full within 30 days of their delivery. BABY BREZZA shall be responsible for the costs
of packaging, insurance and carriage of the Products;
(b) if BABY BREZZA chooses not to exercise its option to buy back the Products
under Section 19.3(a), or purchases only part of Distributor’s stocks of Products, Distributor may,
for a period of six months following termination of this Agreement, sell and distribute any stocks
of the Products as it may at the time have in store or under its control to Approved Customers
within the Territory in the same manner in which it sold such Products during the Term. At the
end of this period, Distributor shall promptly return all remaining stocks of the Products to BABY
BREZZA at the expense of Distributor or otherwise dispose of the stocks as BABY BREZZA
directs; and
(c) once BABY BREZZA has bought back the Products under Section 19.3(a),
or the six month period provided under Section 19.3(b) has ended, Distributor shall
(a) immediately cease all sales or other use of the Products; (b) immediately cease all use of the
trademarks (including the Trademarks), trade names, copyrighted materials, logos, patents or other
intellectual property of BABY BREZZA; and (c) promptly return to BABY BREZZA or destroy
all Products in its possession or control as well as all samples, packaging, technical pamphlets,
catalogues, advertising materials, specifications and other materials, documents or papers that
relate to the Products and/or BABY BREZZA’s business or which contain any BB Confidential
Information that are in Distributor’s possession or control.
19.4. The termination of this Agreement (whether by expiration or earlier termination)
shall not give rise to any liability on the part of either Party to pay any compensation to the other
Party for loss of profits or goodwill.
19.5. Subject to Section 19.3, all other rights and licenses of Distributor under this
Agreement shall terminate on the termination date.16
19.6. BABY BREZZA may cancel any orders for Products placed by Distributor before
termination if delivery would fall due after termination, whether or not these orders have already
been accepted by BABY BREZZA, provided that, except for a termination by BABY BREZZA
pursuant to Section 14.1 or 14.2, BABY BREZZA may not cancel any such order where
Distributor provides satisfactory evidence, in writing within thirty (30) calendar days of the notice
of termination of this Agreement, that Distributor is under a contractual obligation to distribute
and sell the Products covered by such order(s). BABY BREZZA shall have no liability to
Distributor in respect of these cancelled orders.
19.7. For the avoidance of doubt, the provisions of this Section 19 are in addition to, and
not in lieu of, the remedies available to the Parties under this Agreement or otherwise at law with
respect to any breach of this Agreement or any other act occurring prior to the termination.
20. INSURANCE
20.1. Throughout the Term, BABY BREZZA shall maintain product liability insurance
with a reputable insurer at its cost, covering Product Liability Claims (as defined in Clause 14.1(a))
within the Territory, of no less than US$5 million for any one occurrence and no less than US$5m
in total in any one year for any and all liability (however arising) for a claim that any Product is
faulty or defective. BABY BREZZA shall provide a copy of the insurance policy and proof of
payment of the current premium to Distributor on request.
20.2. Throughout the Term, Distributor shall maintain product liability insurance with a
reputable insurer at its cost, covering Product Liability Claims within the Territory, of no less than
US$1 million for any one occurrence and no less than US$1 million in total in any one year for
any and all liability (however arising) for a claim that any Product is faulty or defective. Distributor
shall provide a copy of the insurance policy and proof of payment of the current premium to BABY
BREZZA on request.
21. FORCE MAJEURE
21.1. Provided that it has complied with the provisions of Section 21.2, a Party shall not
be in breach of this Agreement in respect of, or liable for, any failure or delay in performance of
its obligations under this Agreement arising from or attributable to acts, events, omissions or
accidents beyond its reasonable control (“Force Majeure Event”), including, without limitation,
any of the following: (a) acts of God, including fire, flood, earthquake, windstorm or other natural
disaster; or (b) war, threat of or preparation for war, armed conflict, imposition of sanctions,
embargo, breaking off of diplomatic relations or similar actions.
21.2. A Party that is subject to a Force Majeure Event shall not be in breach of this
Agreement provided that: (a) it promptly notifies the other Party in writing of the nature and extent
of the Force Majeure Event causing its failure or delay in performance; (b) it could not have
avoided the effect of the Force Majeure Event by taking precautions which, having regard to all
the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did
not; and (c) it has used all reasonable endeavors to mitigate the effect of the Force Majeure Event
to carry out its obligations under this Agreement in any way that is reasonably practicable and to
resume the performance of its obligations as soon as reasonably possible.17
21.3. If the Force Majeure Event continues for a continuous period of more than six
months, either Party may terminate this Agreement by giving 14 days’ notice in writing to the
other Party. On the expiry of this notice period, this Agreement shall terminate. Such termination
shall not affect the rights of the Parties in respect of any breach of this Agreement occurring before
termination.
22. MISCELLANEOUS
22.1. Limitation of Liability. Except for breach of Sections 2.4, 2.5, 12.3-12.6, 17 or 18
to the extent prohibited by law, neither party shall be liable to the other in contract, tort or otherwise
(including negligence) for loss of revenues or profits (including any arising from Distributor failing
to achieve any Minimum Requirement, loss of goodwill or any indirect or consequential damages
in connection with the performance or non-performance of this Agreement, even if such loss was
reasonably foreseeable or if that party had been advised of the possibility of the other party
incurring such loss.
22.2. Entire Agreement. This Agreement constitutes the whole agreement between the
Parties and supersedes all previous agreements between the Parties relating to its subject matter.
Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have
no right or remedy in respect of, any statement, representation, assurance or warranty (whether
made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this
section shall limit or exclude any liability for fraud.
22.3. Amendments. No amendment or variation of this Agreement shall be effective
unless it is in writing and signed by the Parties (or their authorized representatives).
22.4. Assignment and other dealings prohibited. This Agreement is personal to the
Parties and neither Party shall assign, transfer, mortgage, charge, subcontract or deal in any other
manner with any of its rights and obligations under this Agreement, or purport to do any of the
same, without the prior written consent of the other Party. Any attempted assignment in violation
of this provision shall be void.
22.5. Waiver. A failure or delay by a Party to exercise any right or remedy provided
under this Agreement or by law shall not constitute a waiver of that or any other right or remedy,
nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single
or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or
any other right or remedy.
22.6. Severability. If any provision of this Agreement (or part of any provision) is found
by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable,
that provision or part provision shall, to the extent required, be deemed not to form part of this
Agreement, and the validity and enforceability of the other provisions of this Agreement shall not
be affected.
22.7. Notice. Any notice required to be given pursuant to this Agreement shall be in
writing and shall be delivered personally, or by commercial courier, or by prepaid post (by airmail
post if to an address outside the country of posting) to the relevant Party at the address set out in
this Agreement or any other address as either Party notifies the other from time to time. Any notice
given according to the above procedure shall be deemed to have been given at the time of delivery18
(if delivered by hand), on the date and at the time of signature of the courier’s delivery receipt (if
sent by commercial courier), or five business days after posting (if sent by prepaid post).
22.8. Third-Party Rights. No person other than a Party to this Agreement shall have any
rights to enforce any term of this Agreement.
22.9. Headings. The headings in this Agreement are for convenience of reference only,
and shall not alter or affect the meaning of any provision.
22.10. Governing Law and Jurisdiction. This Agreement and any dispute or claim arising
out of or in connection with it, its subject matter or formation (including non-contractual disputes
or claims) shall be governed by and construed in accordance with the laws of New York. The
Parties irrevocably agree that the federal and state courts located in New York, USA shall have
exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this
Agreement, its subject matter or formation (including non-contractual disputes or claims). The
Parties hereby waive all provisions of the United Nations Convention on Contracts for the
International Sale of Goods which might otherwise be applicable to this Agreement.
22.11. Injunctive Relief. Distributor acknowledges and agrees that money damages would
not be a sufficient remedy for any breach or threatened breach of Sections 2.4, 2.5, 6.2, 6.3, 6.6 –
6.8, 12, 17, 18 or 19 by Distributor or its Representatives or approved sub-distributors. Therefore,
in addition to all other remedies available at law, BABY BREZZA shall be entitled to seek specific
performance and injunctive and other equitable relief as a remedy for any such breach or threatened
breach, and, to the fullest extent permitted by applicable law, Distributor hereby waives any
requirement for the securing or posting of any bond or the showing of actual monetary damages
in connection with such claim.
22.12. Survival. Sections 2.4, 2.5, 6.2, 6.6 – 6.7, 12 – 14, 17 – 19 and 22 shall survive the
expiration or termination of this Agreement.
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