Sales Exclusivity Agreement - Template, Sample Form Pro · US-law

SALES EXCLUSIVITY AGREEMENT

State of ________

RECITALS:

A. This Sales Exclusivity Agreement (the “Agreement”) is made and entered into effective as of ________ (the “Effective Date”), by and between the following seller (the “Seller”):

________

of

________

and the following buyer (the “Buyer”):

________

of

________

The Seller and the Buyer are referred to herein individually as a “Party” and collectively as the “Parties.”

B. WHEREAS, the Buyer and the Seller desire to enter into an exclusive arrangement with regard to the purchase and sale of certain goods, hereinafter referred to as the “Product”; and

C. WHEREAS, the Parties are entering into this Agreement in good faith and are relying upon its terms; and

D. WHEREAS, this Agreement constitutes a contract for the sale of goods governed by Article 2 of the Uniform Commercial Code as enacted in the State identified above.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

§ I. PRODUCT.

1. The Buyer agrees to exclusively purchase the following goods (the “Product”) in accordance with the terms and conditions of this Agreement:

________

§ II. EXCLUSIVITY.

2. The exclusivity period (the “Exclusivity Period”) shall mean the period beginning on ________ and ending on ________.

3. During the Exclusivity Period, the Buyer shall not, directly or indirectly, through any employee, agent, or otherwise, and shall not permit any of its agents to, solicit, initiate, or encourage any offers or proposals relating to the purchase of the Product from any person or entity other than the Seller.

4. The Parties agree that, during the Exclusivity Period, the Buyer shall purchase the Product exclusively from the Seller and not from any other vendor or supplier.

5. The Parties acknowledge that the exclusivity arrangement set forth herein is intended to be lawful and reasonable in scope and duration, and shall be construed and enforced in a manner consistent with applicable federal and state antitrust laws, including without limitation the Sherman Antitrust Act and applicable state competition statutes.

§ III. MINIMUM RESALE PRICE.

6. The Seller may from time to time communicate a suggested minimum resale or manufacturer’s suggested retail price (“MSRP”) for the Product. The Buyer acknowledges that any such MSRP is a suggestion only, and that the Buyer remains free to determine its own resale prices to the extent required by applicable federal and state law.

7. The suggested MSRP for the Product is $________ (________) during the term of this Agreement, unless the Parties otherwise agree in writing.

§ IV. PRODUCT PRICE.

8. For the sale of the Product, the Buyer agrees to pay and the Seller agrees to accept the following total amount, regardless of the number of shipments: $________ (________) (the “Purchase Price”). The Purchase Price is exclusive of any applicable taxes.

9. A deposit in the amount of $________ (________) (the “Deposit”) is required. The Deposit shall be due on ________. The Deposit is non-refundable except to the extent required by applicable law.

10. After the Deposit is paid and delivery of the Product is made effective as described below, the Buyer shall pay the remainder of the Purchase Price to the Seller.

11. The Seller and the Buyer each acknowledge the sufficiency of the Purchase Price as consideration.

12. Unless otherwise expressly agreed by the Parties, any sales tax or other similar tax, such as use or excise tax, applicable to the sale of the Product shall be paid by the Buyer, or the Buyer shall provide the Seller with a legitimate and acceptable tax exemption certificate.

§ V. SHIPMENT AND PURCHASING MINIMUMS.

13. As good and valuable consideration for the agreements made herein, the Buyer covenants that it shall purchase from the Seller the following minimum quantity of Product as described below:

________

§ VI. INVOICING AND PAYMENT.

14. The Purchase Price shall be paid by only one of the following methods of payment:

________

15. Unless the Parties have agreed otherwise through a written addendum to this Agreement that has been duly executed, the Purchase Price shall be due to the Seller immediately upon receipt of the Product.

16. The Buyer shall receive the following type of discount under the following circumstances:

________

17. If any invoice is not paid when due, the Buyer shall be charged a late fee of $________ (________), together with interest on the unpaid balance at the rate of ________% per annum, or the maximum rate permitted by applicable law, whichever is less.

18. The Buyer shall pay all costs of collection, including without limitation reasonable attorneys’ fees and court costs, to the extent permitted by applicable law.

19. In addition to any other right or remedy provided by law, if the Buyer fails to pay for the Product when due, the Seller may treat such failure as a material breach of this Agreement and may cancel this Agreement and/or pursue any legal or equitable remedies available, including those available under Article 2 of the Uniform Commercial Code.

§ VII. DELIVERY.

20. Time is of the essence in the performance of this Agreement.

21. The Seller shall arrange for delivery by a carrier chosen by the Seller.

22. Title to and risk of loss of the Product shall pass to the Buyer upon delivery F.O.B. at the Seller’s address to an agent of the Buyer, including a common carrier, notwithstanding any prepayment or allowance of freight by the Seller.

§ VIII. PRODUCT STANDARDS.

23. The Product shall comply with all applicable industry standards and all applicable federal, state, and local laws and regulations.

§ IX. WARRANTY.

24. The Seller warrants that the Product shall be free of substantive defects in material and workmanship and shall conform to the description set forth in this Agreement.

25. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

26. THE SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SELLER’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE BUYER.

§ X. INSPECTION.

27. The Buyer, upon receiving possession of the Product, shall have a reasonable opportunity to inspect the Product to determine whether it conforms to the requirements of this Agreement.

28. If the Buyer, in good faith, determines that all or a significant portion of the Product is non-conforming, the Buyer may return the Product to the Seller at the Buyer’s expense.

29. The Buyer must provide written notice to the Seller of the reason for rejecting the Product within a reasonable time after delivery.

30. The Seller shall have ________ days from the return of the Product to cure such defects under the terms of this Agreement.

§ XI. CONFIDENTIALITY.

31. The term “Confidential Information” shall include any proprietary information, in whatever form, that:

(a) is provided by either Party to the other, including information regarding the Party’s businesses, finances, prospects, operations, products, employees, technologies, contact lists, and financial models (including not only written information but also information transferred verbally, visually, electronically, or by any other means); or

(b) concerns any agreements that the Seller may aid the Buyer in entering into in the course of providing services; or

(c) consists of analysis and/or any other internal non-redacted memoranda or other documents prepared by either Party derived from, or including material portions of, the Confidential Information.

32. Confidential Information shall not include any information that:

(a) is already known to the receiving Party at the time of its disclosure;

(b) is or becomes publicly known through no wrongful act of the receiving Party;

(c) is communicated to a third party with the express written consent of the disclosing Party; or

(d) is required to be disclosed by law, regulation, or valid court or governmental order, provided that the receiving Party gives prompt written notice to the disclosing Party where legally permitted.

33. Each Party shall safeguard and keep confidential the Confidential Information of the other Party and shall not disclose any Confidential Information to any other person or entity.

34. Each Party shall not use the Confidential Information for any purpose other than those related to the performance of this Agreement.

35. All such Confidential Information and any copies thereof shall be returned or destroyed promptly upon the disclosing Party’s written request and shall not be retained in any form.

36. The obligations of this Section shall survive the termination or expiration of this Agreement for a period of ________.

§ XII. TERM AND TERMINATION.

37. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the duration of the Exclusivity Period, unless earlier terminated in accordance with the provisions of this Agreement.

38. Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach.

39. Either Party may terminate this Agreement immediately upon the insolvency, bankruptcy, receivership, assignment for the benefit of creditors, or dissolution of the other Party.

40. Upon termination of this Agreement, all rights and obligations of the Parties shall cease, except for those obligations that by their nature are intended to survive termination, including without limitation obligations of confidentiality, indemnification, and payment.

41. Termination of this Agreement shall not relieve either Party of any obligation or liability accrued prior to the effective date of termination.

§ XIII. INDEMNIFICATION.

42. Each Party agrees to indemnify, defend, and hold harmless the other Party and its officers, directors, employees, and agents from and against any and all claims, losses, liabilities, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of or resulting from any breach of this Agreement by the indemnifying Party.

43. The Buyer agrees to indemnify and hold harmless the Seller from any claims arising out of the Buyer’s resale, marketing, or use of the Product.

44. The provisions of this Section shall survive the termination or expiration of this Agreement.

§ XIV. FORCE MAJEURE.

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46. The term “Force Majeure” shall include, but is not limited to, acts of God, fire, explosion, vandalism, flood, storm, illness, injury, epidemic or pandemic, earthquake, general unavailability of essential materials, orders of military or civil authority, national emergencies, riots, strikes, lock-outs, work stoppages, or other labor disputes or supplier failures.

47. The Party excused by such events shall use all reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.

48. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party or its employees, officers, agents, subsidiaries, or affiliates.

§ XV. TRANSFER OF RIGHTS.

49. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

50. Neither Party shall have the right to assign its interests in this Agreement to any other party without the prior written consent of the other Party.

§ XVI. NOTICE.

51. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, or by nationally recognized overnight courier, to the address set forth in the opening paragraph of this Agreement, or to such other address as one Party may have furnished to the other in writing.

§ XVII. ENTIRE AGREEMENT.

52. This Agreement contains the entire agreement of the Parties regarding the subject matter hereof, and there are no other promises or conditions in any other agreement, whether oral or written.

§ XVIII. SEVERABILITY.

53. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.

54. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

§ XIX. AMENDMENT.

55. This Agreement may be modified or amended if and only if such amendment is made in writing and signed by both Parties.

§ XX. WAIVER OF CONTRACTUAL RIGHTS.

56. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

§ XXI. GOVERNING LAW AND VENUE.

57. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict of laws principles, and the Uniform Commercial Code as enacted therein.

58. The Parties agree that any dispute arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in ________ County, State of ________, and each Party consents to the personal jurisdiction of such courts.

§ XXII. COUNTERPARTS AND ELECTRONIC SIGNATURES.

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below:

_________________________
________, Seller

Date: ________

_________________________
________, Buyer

Date: ________