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1. Definitions

As used herein, the following terms shall have the meanings set forth below:

  1. “Products” shall mean the following Company products to be sold by Distributor: All products as referred to in “Attachment 1: Products” incorporated herein by reference.
  2. “Territory” shall mean the following described geographic areas and/or particular accounts: All areas and accounts as referred to in “Attachment 2: Territory” incorporated herein by reference.
  3. “Other Terms and Conditions” shall mean all terms, conditions, limitations, and modifications as described in “Attachment 3: Other Terms and Conditions” incorporated herein by reference.
  4. “Tax” means any tax, excise, retribution or duty, other than VAT, imposed in any jurisdiction on the import, export, sale and/or distribution of Product.
  5. “VAT” means any tax, excise or duty imposed in any jurisdiction on the sale or supply of Product.


2. Appointment

  1. Subject to the terms and conditions of this Exclusive Distribution Agreement, Company hereby appoints Distributor as its exclusive Distributor for the Products in the Territory. Distributor’s sole authority shall be to solicit orders for the Products in the Territory in accordance with the terms of this Agreement. And Distributor accepts such appointment and agrees to act as Company’s exclusive distributor of the Company’s Products (defined below) within the geographical territory defined as follows (the “Territory”): 
  2. Distributor agrees to exercise its best efforts to (a) promote the sale of and obtain orders for the Company Products in the Territory; (b) abide by Company’s policies and procedures with regard to the purchase, sale and support of Company Products; and (c) conduct its business in a manner that reflects favorably at all times on the Company Products and the good name, goodwill and reputation of Company or its affiliates. Distributor acknowledges and agrees that it has no rights or claims of any type to the Company Products, or any aspect thereof, except such rights as are created by this Exclusive Distribution Agreement. 


3. General Duties

  1. Distributor shall use its best efforts to promote the Products and maximize the sale of the Products in the Territory. Distributor shall also provide reasonable assistance to Company in promotional activities of Company with respect to the Products. 


4. Sales Targets & Exclusivity

  1. Distributor shall use reasonable commercial efforts to purchase and sell during each calendar year at least the naira value of Company Products listed in ‘Other Terms and Conditions’ below (the “Minimum Quarterly Target”). 
  2. During the term of this Agreement, Distributor shall have an exclusive right to sell the Products purchased under this Agreement to customers established within the Territory. Meaning that during the term of this Agreement, the Company shall only sell the Products and/or support the users of the Products established within the Territory through and via Distributor. The Company shall also not appoint another distributor within the Territory and shall not sell and deliver Products by herself or through any means or part except the Distributor, exclusively.
  3. The Distributor is allowed to use sub-distributors or sales agents in the Territory. In the event Distributor appoints an agent and/or sales representatives to act on its behalf hereunder, any compensation to such agents and/or sales representatives shall be Distributor ́s sole responsibility. Distributor shall also bear the sole responsibility for any action or representation made by these agents and/or sales representatives on its behalf and they shall be bound by the same obligations as Distributor under the present Agreement. Distributor will procure that said agents and/or sales representatives will comply with this Agreement.


5. Relations between the Parties

  1. Subject to the terms and conditions of this Agreement, Distributor is authorized to sell the Products purchased from Company, in such manner, at such prices and upon such terms, as Distributor shall determine at its own discretion. Distributor is and shall act as an independent contractor and nothing in the Agreement shall create or be deemed to create a partnership or relationship of principal/agent, employer/employee or joint-venture between the Parties. Distributor is not authorized to assume or create any obligation or responsibility, including, but not limited to, obligations based on warranties or guarantees or other contractual obligations, on behalf or in the name of the Company.
  2. Company has all rights, power, and authority to enter into this Agreement; Company’s execution of this Distributor Agreement, and Company’s performance of its obligations and duties hereunder, do not and will not violate any agreement to which Company is a party or by which it is otherwise bound, and
  3. Neither Party is subject to any pending or threatened litigation or governmental action that could interfere with its performance of this Agreement.


6. Obligations of the Company

  1. The Company agrees to sell to the Distributor at the prices set out in “Products” hereto, those quantities of the Product in respect of which written orders are placed by the Distributor at the office of the Company or at such other place as from time to time may be mutually agreed upon by the Parties hereto. The details of the orders will be set out in “Products”, and can be modified via an email once mutually agreed to. 
  2. Company will furnish to Distributor, promptly upon request, any and all authorizations that may be required by any governmental authority in connection with the sale and distribution of the Products in the Territory, provided that Company is responsible for obtaining or maintaining said authorizations.
  3. Company warrants, represents and agrees that all shipments of the Products sold or shipped under this Agreement shall be of first quality, suitable for consumption, properly bottled/packaged, free from foreign matter, whether or not prejudicial to health, and will be bottled/packaged in conformity with applicable laws, regulations and requirements in effect within the Territory.
  4. Company will, upon demand by Distributor, promptly execute the budget stipulated in “Other Terms and Conditions” and perform such acts as may be necessary so as to employ the Distributor Tools to prevent any products labeled in imitation or simulation of the Products from being distributed in the Territory.
  5. Company will, upon demand by Distributor, promptly execute the budget stipulated and allocated to running Promotions and Activations in Territory as specified in “Other Terms and Conditions” and perform such acts as may be necessary so as to further stimulate demand for Company’s products and generate engagement.
  6. Company will provide, at Distributor’s reasonable request and without charge, up to 10 hours of training with regard to any characteristics of the Products that Distributor deems reasonably necessary for Distributor and its employees and agents to fulfill the purposes of Distributor’s appointment.
  7. Company will provide to Distributor, without charge, reasonable quantities of promotional literature, brochures and commercial and technical information regarding the Products;
  8. Company will provide sales support and technical training to Distributor and its personnel as deemed reasonably appropriate by both Distributor & Company.


7. Obligations of the Distributor

  1. The Distributor shall not in any way alter the nature, quality or composition of the Product and shall not make any false or misleading representations in respect of the Product. The Distributor is allowed to store and transport the Product in a manner at its sole discretion.


8. Price and Payment

  1. The Products shall be sold to Distributor at the prices set out in “Products”. The Company may at any time during the year change the prices for the Products. The change, being an increase of the price, will first come into effect after having consulted the Distributor in writing taking into account a notice period of 1 month. The new price will remain into force for at least three (3) months.
  2. Should, due to subsequent increases, the new prices exceed an increase of fifty percent (50%) compared to those prices effective at the beginning of the precedent or pre-precedent year and the price is unreasonable high compared to the prices of competitive products, then the Distributor has the right to terminate this Agreement by sending a written notice, taking into account a notice period of one (1) month.
  3. Orders sent by Distributor to the Company before the written notice announcing the change in price has become effective, will be delivered and invoiced for the former price applicable.
  4. Invoicing and Payment for Orders will be at the convenience of Distributor acting in good faith and balancing off the desires of Company and Retail Outlets. Generic timelines are covered in “Other Terms and Conditions”.
  5. The Distributor reserves the right to make necessary changes to this Agreement as a reaction to price changes from Company including but not limited to a change in purchase terms, a change in Minimum Quarterly Targets and hence yearly sales targets, and a change to delivery schedules. 


9. Delivery

  1. Delivery of the Products ordered shall be made from the Company to Distributor specified warehouse on the date mentioned in the purchase order under the conditions of CIF. For Local Deliveries, all costs and risks to deliver products ordered by Distributor from Company, to Distributor Warehouse, is borne exclusively and totally by Company alone.
  2. Company shall package the Products for shipment in accordance with Distributor’s instructions. Distributor will promptly inspect the Products upon receipt at Distributor’s facility to determine whether any Products included in the shipment are in short supply, defective, or otherwise not in conformance with this Agreement. 
  3. Inspection of products for defects and expiry is an ongoing activity and any product found to be defective (due to shortages, defects, or non-conformance etc) at any time by Distributor will be communicated to Company, and Company will promptly replace such Products free of charge.
  4. In the event the Company can not deliver the ordered Products in the agreed time the Company will indemnify Distributor for all damages/agreement shortcomings for that Quarter, caused to it due to the late delivery.
  5. The sale and delivery of all Products to the Distributor under this Agreement shall be subject to the conditions of sale and terms of payment of the Distributor as attached as Exhibit C (Other Terms and Conditions), unless the specific issue is provided for in this Agreement in which case the provision in this Agreement will prevail.


10. Intellectual Property Rights

  1. The Distributor shall only sell the Products under the name, trade mark and trade name used by the Company in connection with the Product, unless a third party is entitled to a trade name or trademark within the Territory. The Distributor shall refrain from any other use of the name, trade mark or trade name of the Company, except for PR purposes on Distributor Website and media Channels. The Distributor shall further refrain from using any other name, trade mark or trade name on the Products and the packages thereof. The Distributor shall not register or use trade names or trademarks or any other intellectual property rights for the Product without the written approval of the Company.


11. Labelling and Liability

  1. The Company will procure that the packaging of the Product contains all warnings and instructions regarding the safe use, transportation and storage of the Product as may be adequate or, as the case may be, compulsory in the Territory. The Company procures that it is fully informed about any specific requirements in that respect and any changes thereof in the Territory.
  2. The Distributor warrants that any and all warnings and instructions printed on, attached to or accompanying the Product will remain legible and shall not be changed, covered or removed, in whole or in part, or in any other way made illegible.


12. Warranties; Limitation & Replacement

  1. The Company indemnifies the Distributor against all claims of third parties based on incorrect information concerning the Products provided by the Company and against all claims of third parties based on any intellectual property right concerning the Products.
  2. The Company warrants the Distributor that the Product is produced and sold to Distributor according to all applicable laws, including safety laws, in the Territory, included but not limited to culture, norms, best practices, regulations and laws on packaging, and is admissible for the purpose of use mentioned in this Agreement. The Company warrants that it will sell and deliver the Products according to the description of the Product as mentioned in “Products”.
  3. In case the Product does not meet the specifications mentioned in aforementioned paragraph, Distributor has to report this to the Company as soon as possible, but in any case within 3 (three) weeks it has become aware of the shortage. The Company will, at choice of Distributor, replace or repair the defective Product/product packaging or any part thereof, at no charge to the Distributor. The Distributor is entitled at his choice to revoke the sales contract with regard to a certain delivered defective Product or to reduce the purchase price therefore appropriately.
  4. The Distributor must notify the Company of defective Products before returning defective Products or parts thereof for replacement.
  5. The Company Shall Assume Product Liability In Accordance With Applicable Law For All Its Supplies Of The Product To The Extent Any Failure Of Any Product Is Not Caused By The Distributor.
  6. For the term of this Agreement and any applicable statutory period thereafter (or if no statutory regulation exists, for a reasonable period) the Distributor agrees to and will secure by all reasonable measures, in particular by maintaining appropriate records, that the Products distributed by the Distributor can be recalled (entirely or partially) at any time and within a reasonable period in accordance with the applicable regulations in the Territory.
  7. In Case That The Company Reasonably Deems A Recall Of Products In The Territory Sold By The Company To The Distributor Necessary, Or Should Any Governmental Institution Order A Recall Of The Product In The Territory, The Distributor Agrees To And Will Carry Out Such Recall In Its Own Responsibility, In Accordance With The Instructions Of The Company, And At The Company ́s Own Costs. In Fulfillment Of Any Such Recall Obligation Provided For Herein, The Distributor Agrees To Have All Products Which Are Subject To Such Recall Returned To The Distributor, And To Reimburse To The Customers For Such Products Which Are Subject To Such Recall And Are Returned To Distributor The Prices Paid By The Customer To The Distributor For Such Recalled Products Upon Direction From The Company. The Company Will Bear The Costs Of The Prices To Be Paid To The Customers. The Distributor Will Return The Recalled Products To The Company At The Company ́s Costs. The Company Will Reimburse To The Distributor The Prices Paid By The Distributor To The Company For The Recalled And Returned Products.
  8. The Company agrees, after carrying out of any recall as provided for herein, that the Company will confirm in writing that the Distributor has completely and properly carried out any such recall.


13. Assignment

  1. Neither party shall be entitled to assign or transfer any of its rights and obligations under this Agreement without the prior written consent of the other Party.


14. Duration & Termination

  1. The term of this Agreement shall be for a period of five years commencing on Agreement signing date, and terminating in 5 calendar years time, and shall thereafter continue in effect unless either party shall notify the other of its intention to terminate this Agreement by giving at least 12 months written notice prior to any specified termination date. Company shall have the option to terminate this Agreement after three (3) months of the notice period by paying to the other party a sum equal to one-half of the case/pack volume of the previous calendar year multiplied by 500 per case/package. However, in the event of a breach of any of the terms and provisions of this Agreement, either party may terminate this Agreement by giving the other party 90 days written notice provided the said notice shall set forth the breach being claimed as the basis for termination. If the offending party cures the breach being claimed within said 90-day period, the notice of termination shall be void and this Agreement shall continue in full and force and effect.
  2. Both parties will be afforded a window of review of terms of this Agreement as set out in the Schedules every 12 months from the date of activating Agreement.
  3. Company may also choose to terminate on grounds of performance. Every 12 months, if Distributor does not hit at least 75% of the cumulative yearly Sales target as set forth in the Minimum Quarterly Sales Target section of the “Other Terms and Conditions”, Company may choose to terminate the exclusivity part of the agreement for a period until when Distributor is able to resume meeting up with set Sales Target.
  4. The Distributor may terminate the Agreement in writing at any time during the tenure of the Agreement, without stating any grounds, observing a notice period of 1 month for necessary reconciliation of orders, returns and payments.
  5. Notice shall be made by registered mail and email, subject to confirmation of reception.


15. Immediate Termination

  1. Either party shall have the right to terminate this Agreement with immediate effect if:
    1. the other Party is declared bankrupt or has been granted suspension of payment or if a petition requesting bankruptcy or suspension of payment is filed by or on behalf of the other Party;
    2. a liquidator, receiver, trustee or administrator is appointed for the other Party or its business;
    3. the other Party becomes insolvent or admits its inability to pay its debts as they fall due or commences negotiations with one or more of its creditors with the view to a general readjustment or rescheduling of all or part of its indebtedness;
    4. a substantial change in the ownership of the other Party or a merger or acquisition relating to the other Party’s business activity occurs, which is in conflict with the interest of the terminating party;
    5. the other Party is in breach of any other provision of this Agreement and fails to remedy such breach within fourteen (14) days after notice of such breach and the request for the remedy thereof has been received by the other Party;
  2. The Distributor shall have the right to terminate this Agreement with immediate effect if:
    1. the Company violates any of the obligations set out in Article 6 of this Agreement;
    2. the Company breaches the confidentiality as provided for in Article 18 of this Agreement;


16. General Consequences of Termination

  1. If notice of termination is given, the Company and the Distributor shall each have, during the applicable notice period, the same rights, obligations and privileges under this Agreement in the same manner and to the same extent as in case such notice had not been given.
  2. After the termination of the Agreement the Distributor shall refrain from any use of the name, trademarks and trade name of the Company associated with the terminated product or company.
  3. Upon termination of this Agreement by either party, Company shall repurchase, or cause its successor representative to purchase, as of said termination date, Distributor’s then existing inventory of Company’s Products at Distributor’s laid-in cost, provided Distributor has properly stored and maintained the inventory of the Products in a saleable condition.
  4. Survival. Notwithstanding anything to the contrary set forth herein, no termination of this Agreement shall relieve any Party from any obligations hereunder which are outstanding on, or relate to matters or claims occurring or arising prior to, the date of such termination or which survive such termination by their own terms or nature.


17. Notices

  1. Any notice or other communication under or in connection with the Agreement shall be in writing in the English language and shall be delivered personally or by registered mail, email, SMS, telex, telefax, or cable transmission to the respective addresses, email addresses, Phone numbers, telex or fax numbers as a party may have notified to the other party in accordance with this article.
  2. All notice or communication to the Company shall, as long as the Company has not given any other address to the Distributor, be sent to the email and physical address(es) being used for communications up till the point of signing the agreement. Addresses which have been clearly communicated via email to Distributor to be used for communicating with Company will also be used and all notices sent thereto assumed to be delivered and received.
  3. Any and all notices or communications to the Distributor shall, as long as the Distributor has not given any address to the Company, be sent to the following address: [email protected] (And all other emails originating from the Domain) & The Penthouse, Theodolite House, 306, Ikorodu Road, Anthony Village, Lagos, Nigeria.


18. Confidentiality and good faith

  1. Confidential information is information remarked by a Party as confidential information but also includes information of which a Party should have known that it concerns confidential information. The content of this Agreement as well as the Distributors know how on sales in the Territory (customers, contact persons etc) is also confidential information. Each Party agrees that during the term and after termination of this Agreement, all disclosures of information to the Company or Distributor as the case may be, its agents and employees shall be held in strict confidence by such receiving Party, its agents and employees. Such receiving Party shall disclose confidential information only to those of its agents and employees to whom it is necessary in order properly to carry out their duties as limited by the terms and conditions hereof. During and after the term of this Agreement, the receiving Party shall not use confidential information except for the purposes of exercising its rights and carrying out its duties hereunder. Distributor may only share confidential information with its agents or sales representatives to assist in the compliance with this Agreement.
  2. In case a Party fails to meet its obligations as described in paragraph 18.1, it forfeits, without prior notice of non performance or without the obligation of taking into account any other formality, a penalty to the other Party of 1 million Naira (N1.000.000.00) per violation of her obligation of confidentiality. The other Party also retains the right to claim indemnification of damages caused to it by the disclosure of the information. Notwithstanding anything contained in this Agreement to the contrary, neither Party shall be liable for a disclosure of the other Party’s confidential information if the information so disclosed:
    1. was in the public domain at the time it was disclosed by the disclosing Party to the receiving Party; or
    2. was lawfully known to or contained in the records of the receiving Party from a source other than the disclosing Party at the time of disclosure by the disclosing Party to the receiving Party and can be so demonstrated; or
    3. becomes known to the receiving Party from a source other than the disclosing Party without breach of this Agreement by the receiving Party and can be so demonstrated; or
    4. was disclosed pursuant to court order or as otherwise compelled by law.


19. Waivers & Information

  1. It is agreed that failure of either Party at any time to enforce any provision of this Agreement shall in no way affect the right to require performance of such provision thereafter. The waiver of breach of any provision of this Agreement shall not mean a waiver of any succeeding breach of such provision or waiver of the provision itself.
  2. Both Parties will advise each other in writing about any changes in such law or regulations that might affect this Agreement.
  3. No waiver of a breach of the terms of this Agreement shall be effective unless made in writing, and no such waiver shall be deemed a waiver of any other existing or subsequent breach. No modification of this Agreement shall be of any effect unless set forth in writing.
  4. This Agreement is the entire agreement between the parties, cannot be changed orally, and neither party has made any representations or promises to the other which are not expressed in this Agreement.


20. Indemnification & Limitation of Liability

  1. Indemnification. Each Party (“Indemnifying Party”) shall indemnify, hold harmless and defend the other Party (“Indemnified Party”) and its officers, directors, agents, employees, and affiliates, from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against, or are suffered or incurred by, the Indemnified Party or any such person to the extent caused directly by acts or omissions of the Indemnifying Party relating to this Agreement, including without limitation (i) any negligent or tortious conduct, (ii) any breach of any of the representations, warranties, covenants or conditions of the Indemnifying Party contained in this Agreement, (iii) any violation of applicable laws or regulations, (iv) infringement or violation of any patent, copyright, trade secret, or other proprietary interest of any third party, and (v) any breach of any express or implied warranties relating to the Products, including implied warranties of merchantability and fitness for a particular purpose.
  2. Limitation of Liability. In No Event Shall Either Party Be Liable To The Other For Any Special, Indirect, Exemplary Or Consequential Damages Arising Out Of This Agreement Or Purchase Or Use Of The Products.

21. Force Majeure

  1. Neither Party shall be held liable for any failure to perform that is due to any cause or circumstance beyond the reasonable control of such Party, including without limitation a demand for such Products and other products manufactured by Company which exceeds Company’s ability to supply them, earthquakes, fire, accidents, floods, storms, other Acts of God, riots, wars, rebellions, strikes, lockouts or other labor disturbances, national or international emergencies, failure to secure materials or equipment from usual sources of supply, failure of carriers to furnish transportation, government rules, regulations, acts, orders, restrictions or requirements or any other cause or circumstance beyond the reasonable control of such Party. No such inability to deliver or delay in delivery shall invalidate the remainder of this Agreement.


22. Entire Agreement

  1. The Agreement with the three Exhibits attached thereto constitutes the entire agreement between the parties on the subject of the Agreement, and the Agreement with the Exhibits attached thereto supersedes and cancels any previous agreements between the Parties on the subject of the Agreement, such cancellation being made without waiver of any right or liabilities accrued prior to such effective date by either party under such Agreements.
  2. The Agreement and the Exhibits can only be amended or supplemented at any time during the lifetime of this Agreement, by means of a written document signed by both parties.
  3. Invalidity of any Provision; If any provision of the Agreement and/or the Exhibits attached thereto becomes invalid, illegal or unenforceable in any respect under any law, the parties shall consult with each other in good faith, in order to replace any such provision as aforesaid by a mutually acceptable provision which is valid, legal and enforceable and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.


23.  Applicable Law and Jurisdiction

  1. The Agreement and all agreements resulting there from shall be governed exclusively by the laws of Nigeria, to the exclusion, however, of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG).
  2. Any and all disputes arising from or in connection with the Agreement or further Agreements resulting there from, shall be brought exclusively before the competent courts of Nigeria.