Parties intending to sell Nasco Sampling products, intending to be legally bound, agree as follows:
Agreement of the Parties
1. Appointment, Acceptance & Scope
a. Exclusive Appointment. Subject to the terms and conditions of this Distributor Agreement, Company hereby appoints and grants Distributor the non-exclusive right to sell and distribute the Products to customers (the “Customers”) and to render other services as a distributor for Company as set forth herein.
b. Subagents. Distributor may appoint sub-agents, sub-distributors, sub-representatives or other persons to act on Distributor’s behalf or to otherwise perform any of Distributor’s obligations under this Agreement; provided that (i) any compensation to such sub-agent, sub-distributor, sub representative or other person to act on Distributor’s behalf or to otherwise perform any of Distributor’s obligations shall be solely Distributor’s responsibility, and (ii) such appointment does not deprive Nasco Sampling of the essential rights to which it is entitled under this Agreement. Any agreement with such sub-agent, sub distributor, sub-representative, or other person shall not extend beyond the term of this Agreement.
c. Relationship of Parties. Distributor is an independent contractor and is not and shall not be deemed to be an employee, legal representative, dealer, general agent, joint venture, or partner of Nasco Sampling for any purpose. Distributor acknowledges that Nasco Sampling has not granted it any authority to make changes to Nasco Sampling’s terms and conditions of sale, grant any warranties in excess of those extended by Company or limit its liabilities or remedies less than Nasco Sampling’s limits its liabilities and remedies, sign quotations, incur obligations (expressed or implied), or in general enter into contracts on behalf of Nasco Sampling or bind Nasco Sampling in any transaction with customers, governmental agencies or third parties.
2. Orders, Price, Terms of Sale & Payment
a. Communications Pursuant to this Distributor Agreement and Orders. Orders shall be made with Nasco Sampling. Nasco Sampling understands that its timely acceptance of orders from Distributor hereunder is an important element of this Agreement. Nasco Sampling shall have 3 business days after its receipt to accept (or reject for a legitimate business reason) any order submitted by Distributor. Should Nasco Sampling fail to timely accept or reject an order from Distributor in accordance with this Section, such order shall be deemed accepted and shall become binding on Nasco Sampling. All orders need to be received via purchase order and in English. Minimum order quantities must be followed, but there are not annual minimum purchasing commitments.
b. Prices and Shipment. Nasco Sampling agrees to sell, and Distributor agrees to purchase, the Products in accordance with the Prices and Volume Discount Prices provided. Prices and Volume Discount Prices may change at any time. Nasco Sampling will provide Distributor with at least 10 days prior notice of any such increase. Prices do not include freight, duties, taxes or import fees. All prices and payments are to be in US dollars.
c. Company shall package the Products for shipment in accordance with Distributor’s instructions. All shipments of Products for Customers, and any freight and shipping costs related thereto, will be Distributor’s responsibility. All shipments will be made EXW Nasco Sampling’s facility (Incoterms 2020). Distributor is responsible to act as importer of record and ensure any international governmental obligations. 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. Within 5 days of receipt of such Products, Distributor will notify Customer of any shortages, defects, or non-conformance, and Customer will promptly replace such Products free of charge. Title to the Products shall pass to Distributor upon shipment.
d. Terms of Sale. All sales by Company shall be in accordance with the terms and conditions of this Agreement.
e. Returns of Sale. Nasco Sampling will, during the term of this Agreement, accept returns or exchanges of saleable Product inventory at full acquisition costs with a 25% restocking fee. No Distributor or customer labelling can be on the product when returned. Damaged boxes from removing such labels will not receive credit. Distributor will pay all associated shipping costs, F.O.B destination. Nasco Sampling will not accept return of discontinued products or products in excess of 2 years old or any expired products.
f. Resale of the Products. Distributor shall be free to resell the Products for such prices and upon such terms and conditions as Distributor may see fit in its sole discretion. Nasco Sampling shall have no control over or any liability in connection with the price at which Distributor resells the Products, and Distributor shall hold Nasco Sampling harmless and indemnify and defend Nasco Sampling from and against any liability resulting therefrom.
The Distributor and Nasco Sampling, as applicable, make the following representations, warranties, and covenants:
a. Distributor is a company duly organized, validly existing, and in good standing, is qualified to do business and in good standing in each jurisdiction located within the located country, and is and will remain in compliance with all applicable laws and regulations in the conduct of its business and, specifically, in its sale of the Products and provision of any services hereunder.
b. Nasco Sampling is a corporation, duly organized, validly existing, and in good standing in the United States, and is and will remain in compliance with all applicable laws and regulations in the conduct of its business and, specifically, in its sale of the Products.
c. Nasco Sampling warrants and represents that the Products will be free from defects in design, materials, and workmanship and conform with any specifications provided.
d. Nasco Sampling has all rights, power, and authority to enter into this Agreement,
e. Company’s execution of this Distributor Agreement, and Nasco Sampling’s performance of its obligations and duties hereunder, do not and will not violate any agreement to which Nasco Sampling is a party or by which it is otherwise bound, and
f. Neither Party is subject to any pending or threatened litigation or governmental action that could interfere with its performance of this Agreement.
g. The terms of this agreement are the binding legal obligation of each Party and are enforceable in accordance with the applicable laws.
4. Responsibilities of Distributor
Distributor agrees that it will diligently perform the services and obligations detailed in this Agreement. The operations of Distributor are under its sole and exclusive control, including without limitation supervision of, and liability for expenses incurred with respect to, employees. The Distributor will use best reasonable efforts to distribute the Products.
5. Responsibilities of Company
In addition to any other responsibilities stated in this Agreement, Nasco Sampling will:
a. provide, at Distributor’s reasonable request and without charge, up to 5 hours annually 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,
b. provide to Distributor, without charge, access to download promotional literature, brochures and commercial and technical information regarding the Products;
c. provide sales support and technical training to Distributor and its personnel as deemed reasonably appropriate by Nasco Sampling.
6. Confidential & Proprietary Information
a. As used herein, the term “Proprietary Information” means any information, technical data, or know-how (including, but not limited to, information relating to products, software, services, development, inventions, processes, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) disclosed by one Party (the “Disclosing Party”) to the other (the “Recipient Party”) either directly or indirectly in any form whatsoever, including, but not limited to, in writing, in machine readable or other tangible form, orally or visually.
b. Unless otherwise expressly authorized by the Disclosing Party, the Recipient Party agrees that it and any of its personnel receiving Proprietary Information under this Agreement shall treat such Proprietary Information in strict confidence with the same degree of care applied to its own Proprietary Information of like importance, which it does not wish to disclose, publish, or disseminate to third parties.
c. In no event will the Recipient Party divulge, in whole or in part, such information to any third party without the prior written consent of the Disclosing Party; provided, further, that any third party must also agree in writing to restrictions comparable to those provided in this Section 6. The Recipient Party may disclose the Proprietary Information to the extent required by a valid order by a court or other governmental body or by applicable law; provided, however, that the Recipient Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure.
d. Notwithstanding any other provisions of this Agreement, each party acknowledges that Proprietary Information shall not include any information that: (i) is already known to the Recipient Party at the time of disclosure or becomes publicly known through no wrongful act of the Recipient Party’s part; (ii) is rightfully received by the Recipient Party from a third party without breach of this Agreement; (iii) is independently developed by the Recipient Party without the benefit of information received under this Agreement; (iv) is furnished to a third party by the Disclosing Party without a restriction on the third party’s right to disclose it; or (v) is explicitly approved for release by written authorization by the Disclosing Party.
e. It is understood that all Proprietary Information disclosed under this Agreement, is, and shall remain, the property of the Disclosing Party. Upon completion of this Agreement, or upon written notice from the Disclosing Party, the Recipient Party agrees to return all Proprietary Information in its possession.
f. The Recipient Party acknowledges that the Disclosing Party, because of the unique nature of the Proprietary Information, would suffer irreparable harm in the event that the Recipient Party breaches its obligation under this Agreement and that monetary damages would be inadequate to compensate the Disclosing Party for such a breach. The Parties agree that, in such a circumstance, the Disclosing Party shall be entitled, in addition to such monetary relief as may be applicable, to injunctive relief as may be necessary to restrain any continuing or further breach by the Recipient Party, without showing or proving any actual damages sustained by the Disclosing Party.
g. The obligations of the Recipient Party under this Section 6 shall survive termination or nonrenewal of this Agreement for a period of 1 year. For the avoidance of doubt, the customer and sub-distributor lists of Distributor shall be deemed to constitute Proprietary Information under this agreement.
7. Duration & Termination
a. Effective Date and Duration. This Agreement shall become effective on the date the first order is received and shall continue in effect in perpetuity until either party terminates.
b. Termination. Either Party may terminate this Agreement at any time for any reason with written notice.
8. Right of Parties at Termination
a. Obligations After Termination. In the event that this Agreement is terminated or expires on its own terms, Nasco Sampling shall have no further responsibilities to Distributor except that in the event the Agreement terminates for any reason other than a breach hereof by Distributor, Nasco Sampling shall be obligated to process orders accepted by Nasco Sampling prior to the effective date of such termination or expiration or within 30 days thereafter.
b. 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.
9. Indemnification & Limitation of Liability
a. 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 intellectual property 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.
b. 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.
10. Force Majeure
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, pandemics, 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.
Distributor shall not dispute or contest for any reason whatsoever, directly or indirectly, during the term of this Agreement and thereafter, the validity, ownership, or enforceability of any of the trademarks of Nasco Sampling, nor directly or indirectly attempt to acquire or damage the value of the goodwill associated with any of the trademarks of Nasco Sampling, nor counsel, procure or assist any third Party to do any of the foregoing. Distributor will not institute any proceedings with respect to the trademarks of Nasco Sampling either in Distributor’s own name or on behalf of Nasco Sampling without express written permission of Nasco Sampling. Distributor shall assign to Nasco Sampling, without charge, any rights in the trademarks of Nasco Sampling that may inure to the benefit of Distributor pursuant to this Agreement or otherwise. Distributor shall execute any documents or do any acts that may be required to accomplish the intent of this Section.
12. General Provisions
a. Amendments. This Agreement may be amended only by Nasco Sampling with a 30 day notice. Any such amendment shall be effective only to the extent specifically set forth in such writing.
b. Governing Law. This Agreement is a contract under the laws of the State of Wisconsin and for all purposes shall be governed by and construed in accordance with the substantive laws of the State of Wisconsin, without regard to its principles of conflicts of laws provisions.
c. Disputes. The Parties shall seek to resolve any dispute, controversy, or claim arising out of or in connection with this Agreement, including without limitation, any dispute regarding the enforceability of any provision, through good faith negotiations between them within 60 days of any notice of dispute being served or such longer period of time as may be mutually agreed between the Parties. If the Parties are unable to resolve the dispute within this timeframe, and one or both parties one or both parties desire to pursue the dispute, the complaining party must submit the dispute to binding arbitration in accordance with the rules and regulations of the American Arbitration Association. The Parties will share equally the cost of arbitrating such dispute. The arbitrator(s) shall not be empowered to award punitive or other damages in excess of compensatory damages, and both parties irrevocably waive the right to any such damages. Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction over the dispute. In the event that the parties cannot agree upon an arbitrator within a 60 day period, each party shall designate an arbitrator and those two arbitrators shall choose a third arbitrator, with that third arbitrator serving as the sole arbitrator of the dispute.
d. Assignment. Neither Party shall assign, pledge or otherwise transfer any of its rights, interest, or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party.
f . Cumulative Remedies. The rights and remedies of the Parties hereunder are cumulative and not exclusive of any rights or remedies which the Parties would otherwise have. No single or partial exercise of any such right or remedy by a Party, and no discontinuance of steps to enforce any such right or remedy, shall preclude any further exercise thereof or of any other right or remedy of such Party.
g. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
h. Exhibits and Schedules. The exhibits or schedules attached hereto are an integral part hereof and all references herein to this Agreement shall include such exhibits and schedules.
i. Notices. Unless otherwise specifically provided herein, all notices, consents, requests, demands, and other communications required or permitted hereunder: (i) shall be in writing; (ii)) shall be sent by email, charges prepaid as applicable, to the appropriate address(es) or number(s) set forth below; and (iii) shall be deemed to have been given on the date of receipt by the addressee, as evidenced by (A) a receipt executed by the addressee (or a responsible person in his or her office), the records of the Person delivering such communication or notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, U.S. mail or express delivery service, or (B) a receipt generated by the sender’s telecopier showing that such communication was sent to the appropriate number on a specified date if sent by telecopier. All such communications shall be sent to the addresses for each Party as first set forth above, or to such other addresses or numbers as any Party may inform the others by giving [ Days prior notice to inform] days prior notice.
j. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
k. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of each of the Parties and their respective successors and permitted assigns.