계약서-DISTRIBUTOR AGREEMENT

 

DISTRIBUTOR AGREEMENT

 

 

THIS AGREEMENT made between SHUDO AUTOMOBILE COMPANY, LTD., a Japanese corporation acting through its Motorcycle Sales Division with its Head Office at Kan-on Machi, Hiroshima 733, Japan(hereinafter called the COMPANY), and SMITH & PARKER ENTERPRISES, INC., at Dearborn Street, Gary, Indiana 46135, U.S.A.(hereinafter called the DISTRIBUTOR) .

 

WITNESSETH

 

(1) APPOINTMENT : The COMPANY hereby appoints the DISTRIBUTOR as an authorized distributor of the products specified in the Discount Schedules, which are attached to and form a part of this agreement. This Distributorship shall be non-exclusive as to both parties.

 

(2) DISTRIBUTOR'S RESPONSIBILITIES AND FACILITIES : The DISTRIBUTOR agrees that so long as this distributorship is in effect it will :

(a) Use its best efforts to develop business in, to promote the sale of, and to sell the products covered by this agreement.

(b) Maintain a sales organization which actively solicit the sale of products covered by this agreement.

(c) Include a representative listing of the products covered by this agreement in any catalogues issued by it.

(d) Furnish the COMPANY from time to time, upon request, with such information as it may have available from its record with respect to sales, inventories, and other activities of the DISTRIBUTOR under this agreement.

(e) Use its best efforts to keep at a minimum the number of small orders placed on the COMPANY by consolidating orders whenever possible.

 

(3) BUYER-SELLER RELATIONSHIP : The relationship between the DISTRIBUTOR and the COMPANY under this agreement is intended to be that of buyer and seller. The DISTRIBUTOR and its agents and employees shall under no circumstances be considered to be agents or representatives of the COMPANY.

 

(4) PURCHASE ORDERS : The COMPANY will during the term hereof sell the products covered by this agreement to the DISTRIBUTOR for resale by it. Since both the COMPANY and the DISTRIBUTOR recognize that it is not practicable for responsible executives of either the COMPANY or the DISTRIBUTOR to review provisions of individual purchase contracts, it is agreed that all such contracts shall be governed by the provisions of this agreement and that none of the provisions of the DISTRIBUTOR's purchase order or the COMPANY's acknowledgement thereof, except those specifying the quantity and the character of the products ordered, the price, the terms of payment, shipment, invoice information and shipping Instructions shall be considered applicable to the purchase.

 

(5) TERMS OF SALE : The prices, discounts and terms applicable to the purchase of the products at the date of this agreement are set forth in the Discount Schedules, but these prices, discounts, and terms shall be subject to change from time to time hereafter.

 

(6) DELIVERY : Unless otherwise specifically provided in the Discount Schedules, delivery of the products shall be F.O.B. Kobe, and the date of the bill of lading shall be taken to be the date of delivery of the products. The COMPANY shall not be liable for delays in delivery or failure to manufacture due to strikes, lock-outs, riots, civil commotions, insurrections, wars, acts of God, operation of law or any other causes beyond its control.

 

(7) PAYMENT : The payment shall be made by means of an irrevocable letter of credit without recourse in favor of the COMPANY. The letter of credit shall cover the full amount of each contract, shall be established through a prime bank immediately after the date of a contract, shall be negotiable on sight draft and shall be valid for negotiation of the relative draft for at least fifteen(15) days after the last day of the month of shipment.

 

(8) WARRANTY : The COMPANY warrants the DISTRIBUTOR that the products to be delivered on any order will be the kind designated or specified. If it appears within six(6) months from date of shipment by the COMPANY that the products delivered on any order are not of the kind designated or specified, and the DISTRIBUTOR notifies the COMPANY immediately, the COMPANY shall thereupon correct the defect or defects, at its option, either by repairing the defective part or parts or sending a replacement(s).

 

(9) PATENTS : The COMPANY shall defend any suit or proceeding brought against the DISTRIBUTOR so tar as based on a claim that any product or any part thereof furnished under this agreement constitutes an infringement of any patent of the United States, if notified promptly in writing and given authority, information and assistance for the defense of same, and the COMPANY shall pay all losses and costs awarded therein against the DISTRIBUTOR.

 

(10) CANCELLATION OF ORDERS : The DISTRIBUTOR may cancel any order placed only upon written notice and upon payment to the COMPANY of reasonable and proper cancellation charges.

 

(11) SALES ASSISTANCE : The COMPANY recognizes the benefits to be derived by both parties through the active promotion of the DISTRIBUTOR's name in connection with the COMPANY's products. To further this objective, the COMPANY agrees to furnish to the DISTRIBUTOR sales promotional aids, such as circulars, pamphlets, printed technical information, and other publications. The COMPANY shall make no charge for any such sales promotional aids.

 

(12) CONFIDENTIAL INFORMATION : The COMPANY and the DISTRIBUTOR shall mutually treat as confidential all information, reports and records pertaining to this distributorship.

 

(13) TRADE-MARKS : The DISTRIBUTOR shall not use, in whole or in part, the COMPANY's signature "SHUDO ㉧ AUTOMOBILE," or the monogram "㉧," or any other trademark or name that is now or may hereafter be owned by the COMPANY as part of the DISTRIBUTOR's business name, or in any way in connection with the DISTRIBUTOR's business. If any such trade-marks or names are used by the DISTRIBUTOR with the express written approval of the COMPANY, the DISTRIBUTOR, upon the termination of this agreement, shall delete and discontinue all such use.

 

(14) DURATION AND TERMINATION : This agreement shall continue in effect from the effective date hereof until terminated as follows :

(a) By an agreement in writing signed on behalf of the COMPANY by the President or a Vice-President ; or

(b) By either party at will, with or without cause, upon three months' notice in writing given by registered mail.

(c) By the COMPANY upon one day's like notice if the DISTRIBUTOR assigns this agreement, or any rights hereunder, without the COMPANY's prior written consent or there is a change in the control or management of the DISTRIBUTOR which is unacceptable to the COMPANY : or a draft drawn by the COMPANY on the DISTRIBUTOR is dishonored : or the DISTRIBUTOR ceases to function as a going concern, or to conduct its operations in the normal course of business : or a receiver for the DISTRIBUTOR is appointed, or applied for or a petition under the Federal Bankruptcy Act is filed by or against the DISTRIBUTOR.

 

(15) NO LIABILITY FOR TERMINATION - Neither the COMPANY nor the DISTRIBUTOR shall by reason of the termination of this agreement be liable to the other for compensation, or damages either on account of present or prospective profits on sales or anticipated sales, or on account of expenditures of investments made in connection therewith, or on account of any other cause whatsoever, provided, however, that such termination shall not affect the rights or liabilities of the parties with respect to products previously sold hereunder or with respect to any indebtedness then owing by either party to the other.

 

(16) SALE AFTER TERMINATION : The acceptance of any order for or the sale of any products to the DISTRIBUTOR after the termination of the distributorship hereby created shall not be construed as renewal or extension thereof, nor as a waiver of termination.

 

(17) ARBITRATION : All disputes, controversies, or differences which may arise between the DISTRIBUTOR and the COMPANY out of or in relation to this agreement shall be finally settled by arbitration in Kobe, Japan In accordance with the rules of the Japan Commercial Arbitration Association. The award rendered by the arbitrators shall be final and binding upon the parties thereto.

 

Effective Date : Jan. 1, 1998

 

 

SMITH & PARKER ENTERPRISE, LTD.                 SHUDO AUTOMOBILE COMPANY, LTD.

 

(Distributor)

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