Ultrafem Inc. Contracts
Sample Business Contracts
Distribution Service Agreement - Morgan & Sampson Inc. and Ultrafem Inc.
DISTRIBUTION SERVICE AGREEMENT
This Distribution Service Agreement (hereinafter called "Agreement") is
made this 1st day of June by and between MORGAN & SAMPSON, INC., a California
Corporation (hereinafter called "Warehouseman"), and ULTRAFEM, INC. (hereinafter
called "Manufacturer").
WHEREAS Warehouseman and Manufacturer are each desirous of entering into a
Distribution Service to be performed by Warehouseman on behalf of Manufacturer.
NOW, THEREFORE, the parties hereto in consideration of the premises and the
mutual promises herein contained, do hereby covenant, promise and agrees as
follows:
1. DEFINITIONS. For purposes of the Agreement, the following terms shall
have these meanings:
1.1 "Products" shall mean the products manufactured by the Manufacturer or
otherwise offered by it for sale to its customers and which are to be stored and
shipped by Warehouseman in accordance with this Agreement.
1.2 "Basic Service" shall mean the services rendered by the Warehouseman in the
Handling, Warehousing and Distribution of the Products of the Manufacturer as
further defined in this Agreement.
1.3 "Warehouse" shall mean the building owned or used by the Warehouseman for
storage of Products in the ordinary course of its business at 1651 South Carlos
Avenue, Ontario, California 91761, and/or such other buildings as the parties
shall agree upon.
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2. TERM OF AGREEMENT. The term of agreement shall be for a period of one
(1) year, and the Contract shall continue in effect thereafter until terminated
by either party by giving ninety (90) days written notice to the other of its
desire not to continue this agreement in force.
3. DUTIES OF WAREHOUSEMAN. During the term of this Agreement,
Warehouseman shall render to Manufacturer the Basic Services as more
particularly described hereinafter in this paragraph.
3.1 Handling shall consist exclusively of the rendering of the following
services by Warehouseman during its regular business hours with respect to
Products duly tendered for delivery pursuant to this Agreement:
(a) Receipt of Products at the warehouse loading dock during normal
working hours of Warehouse;
(b) Loading Products into the Warehouse;
(c) Rendering memoranda of the receipt of Products from Manufacturer,
indicating the quantity of the Products received and the condition of
the Products (as is readily apparent from the condition of the
containers in which such were delivered or upon Warehouseman's
unpacking of such containers). Such memoranda are to be sent to
Manufacturer within three (3) days following receipt of any shipment
of Products. Manufacturer shall furnish Warehouseman with a schedule
explaining its markings with respect to name of product, quantity and
size. Each container shall be marked consistently with such schedule
to provide Warehouseman with such information.
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(d) Keeping inventory records of Products delivered and shipped hereunder
and rendering no less than monthly summaries of the transactions made
with respect to such Products and no less than quarterly counts of the
Products physically on hand.
3.2 Warehousing shall consist of the storage of the Products of Manufacturer in
the Warehouse from the time of loading until the time of shipment in
accordance with the terms of this Agreement. It is understood that
Warehouseman has allocated 5,000 (est.) square feet of warehouse space for
the Products of the Manufacturer. Upon reasonable notice from Manufacturer
that it requires additional space and provided such additional space is
available in the Warehouse, Warehouseman will allocate additional space to
Manufacturer.
3.3 Distribution shall consist exclusively of the following services to be
rendered by the Warehouseman with respect to the Products:
(a) Acceptance of orders by telephone, fax, EDI, in writing, or computer
data link for products from the Manufacturer. A Master Customer list
will be supplied by Manufacturer. It is understood that all such
orders submitted to the Warehouseman for shipment shall be checked
against the Customer Master list for credit approval prior to
shipping.
(b) Shipping such orders on forms to be supplied by the Warehouseman to the
Manufacturer's customers by UPS/RPS or by delivery to such common
carriers as Warehouseman in its discretion shall determine, within a
reasonable time following its receipt of an order.
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(c) Warehouseman shall not be liable for any delay in packing or shipping
of Products as required hereunder if such delay is due to acts of God,
War, public enemies, seizure under legal process, strikes, lockouts,
riots and civil commotion's prolonged unavailability of carriers, or
any other occurance of similar magnitude. Products remaining in
storage as a result of such delay will continue to be subject to
regular storage charges.
(d) A copy of the pick list and the bill of lading covering each shipment
shall be sent by courier program to Manufacturer promptly following
their rendering to Manufacturer's customers.
(e) Customer service shall consist exclusively of the following services
to be rendered by the Warehouseman with respect to the products:
(1) Preparing customer orders for shipment following a credit
approval check against the Customer Master list.
(2) Updating customer orders after shipment via the inventory product
status report and confirming shipment to Manufacturer via Fax or
EDI.
(3) Tracing customer orders and obtaining P.O.D.'s upon request.
4. DUTIES AND AGREEMENTS OF MANUFACTURER. In consideration of the
undertaking of the Warehouseman to perform the Basic Services with respect to
the Products, the Manufacturer undertakes, agrees and represents as follows:
4.1 Title to the Products shall at all times remain in the Manufacturer's
possession and any taxes assessed directly on such Products shall be for
the account of and paid by the Manufacturer. The Manufacturer will have
good title to all of the Products to be delivered to Warehouseman hereunder
and has the legal right and authority to take all such acts with respect to
such Products as it may take pursuant to the provisions of this Agreement.
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4.2 The Products to be delivered hereunder will be in good condition and of
merchantable quality at the time of their delivery to Warehouseman and of
the type and in the quantities indicated by the documents rendered by
Manufacturer at the time of delivery. Manufacturer further represents that
no storage of shipment procedures are required for proper care of the
Products other than those which are rendered by Warehouseman in the
ordinary course of its business. Manufacturer understands that
Warehouseman relies upon the representations set forth herein in
determining the performance of its duties hereunder and the fulfillment of
the its standard of care reference to in Paragraph 7 hereof.
4.3 Manufacturer shall be solely responsible for the design, development,
supply, safety, and performance of the Products hereunder. Warehouseman
agrees to immediately notify Manufacturer of any and all claims, demand of
actions asserted or commenced against Warehouseman arising out of or
connected with this Agreement or the Products. If any liability, action,
claims or demands are attributable to the Products or Manufacturer,
Manufacturer shall at its own cost and expense defend the same and will
indemnify, save harmless and defend the Warehouseman of any and all claims,
losses, or liabilities, including reasonable attorney's fees, in any way
arising out of or alleged to have arisen out of the use of Manufacturer's
Products. So long as this Agreement remains in force, Manufacturer will:
(a) Maintain adequate bodily injury and property damage insurance with
respect to Products warehoused or distributed pursuant to this
Agreement;
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(b) Designate Warehouseman as a named insured with respect to such
insurance; and
(c) Provide Warehouseman with Certificates of Insurance to evidence
compliance with this Paragraph 4.3.
4.4 With respect to the shipment of Products to the Warehouseman:
(a) All Products will be shipped prepaid to the loading dock of the
Warehouseman packed in Manufacturer's regular shipping cartons for
storage and marked as to quantity and description of Products.
(b) Manufacturer shall give Warehouseman notice within two (2) business
days after the shipment of Products to Warehouse of all shipments to
be made hereunder, the name of the carrier and the contents of the
shipment. Manufacturer agrees that Warehouseman shall not be liable
for demurrage or delays in unloading inbound trucks, unless
Warehouseman has failed to exercise reasonable care and diligence
under the circumstances, which include the receiving of the notice
provided herein.
4.5 With respect to the shipment of Products by Warehouseman, Manufacturer
agrees to make all claims against carriers carrying Products to
manufacturer's customers. Warehouseman agrees to assist Manufacturer in
developing information reasonably available to Warehouseman and necessary
for such claims.
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5. COMPENSATION FOR BASIC SERVICES AND REIMBURSEMENT OF EXPENSES
5.1 The fees for Basic Services to be computed separately each calendar month
shall be as outlined in Exhibit 'A'. Should the Manufacturer give notice
pursuant to Paragraph 2 hereof, the fee for preparation and transfer of
Manufacturer's Products shall be herein specified as though such Products
had been shipped to the Manufacturer's customers.
5.2 In addition to the payment of fees for Basic Services, and in addition to
the payment for Extra Services as hereinafter provided in Paragraph 6
hereof, Manufacturer agrees to reimburse Warehouseman for all properly
documented expenses incurred or paid for the account of the Manufacturer
including freight, postage or other payments paid or incurred by
Warehouseman or any taxes levied or assessed against the Products.
Manufacturer will also reimburse Warehouseman for telephone toll charges
and fax expenses incurred on behalf of Manufacturer subject to
Manufacturer's policies with respect to such charges as are communicated to
Warehouseman in writing.
5.3 With the exception of freight and storage charges, monthly bills will be
rendered for the services performed and expenses incurred pursuant to
Paragraphs 5.1 and 5.2 hereof and such bills are payable within thirty (30)
days of their receipt. Freight charges, both UPS/RPS and common carriers
will be debited against the Freight Advance Account as such expenses are
incurred. An accounting of all charges debited to the freight advance
account along with copies of UPS/RPS charges and common carrier freight
bills will maintain a freight advance account with the Warehouseman at a
initial level described in Exhibit 'A' and replenished from time to time
upon reaching a minimum level described in Exhibit 'A'.
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6. EXTRA SERVICES. Extra Services and charges for purposes of this
Agreement are as follows:
6.1 For packing and repackaging Products for shipment in packages or containers
other than in those which such Products were delivered to Warehouseman in
accordance with Sub-Paragraph 4.4(a) above, Manufacturer shall be charged
as outlined in Exhibit 'A'.
6.2 For destroying Products, Manufacturer will be charged the cost to
Warehouseman for such service as outlined in Exhibit 'A'.
6.3 All the services enumerated Paragraph 6 may be performed and charged for
only when approved by Manufacturer.
6.4 Bills for fees charged to Extra Services will be rendered monthly and
payable within thirty (30) days of their receipt.
7. LIMITATION OF LIABILITY.
7.1 Warehouseman shall only be liable for damages for loss of or injury to the
Products caused by its failure to exercise such care in regard to them as a
reasonably careful man would exercise under like circumstances and shall
not be liable for damages which could not have been avoided by the exercise
of such care. Warehouseman shall not be held responsible for loss of
Products by leakage or through failure to detect same, for concealed
damage, or for inventory shrinkage of less than one percent (1%) based on
average monthly inventory (with inventory overages offsetting inventory
shortages) to be reviewed after six (6) months.
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7.2 Warehouseman's liability for loss or injury to Products under Paragraph 7.1
above shall be limited to and shall not exceed the lesser of: (a) the cost
to the manufacturer of producing or otherwise obtaining such Products at
the time and place of their production or obtaining of the same plus
freight or the shipping charges incurred in delivering the Products to
Warehouseman; or (b) the actual market value thereof at the time and place
at which the injury or loss occurred.
7.3 Warehouseman shall not be obligated to provide any insurance for
Manufacturer's Products. Manufacturer shall provide any insurance required
(including, but not limited to, fire insurance) by it at its sole cost and
expense to cover its Goods in transit and while in the Warehouse.
Manufacturer hereby waives and releases any and all rights of recovery,
liability or responsibility against Warehouseman, its agents or employees
for loss, injury or damage suffered by Manufacturer because of fire or
insurable extended coverage perils, however caused, even if such fire or
other casualty shall have been by the fault of negligence of Warehouseman
or any one for whom Warehouseman may be responsible. Manufacturer shall
give notice to its insurance carrier that the foregoing Waiver of
Subrogation is contained in this Agreement. Manufacturer shall supply
Warehouseman with satisfactory evidence of such insurance and Waiver of
Subrogation by means of a Certificate of Insurance from its insurer.
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7.4 Manufacturer guarantees, warrants and certifies that no product
constituting or being a part of any shipment made hereunder is misbranded
within the meaning of the Federal Hazardous Substances Labeling Act or
within the meaning of any applicable state law in which the definition of
misbranding is substantially the same as that contained in the Federal Act
or is an article which may not under the provisions of the Federal Act be
introduced into Required Commerce.
7.5 Manufacturer guarantees, warrants and certifies that no drug constituting or
being part of a shipment made hereunder will at the time of shipment or
delivery, be adulterated or misbranded within the meaning of the Federal
Food, Drug and Cosmetic Act, as said Act is constituted and effective at
the time of such shipment or delivery, or will be an article which may not
under the provisions of said Act be introduced into Interstate Commerce.
8. GOVERNING LAW. The interpretation of this Agreement shall be governed
by the laws of the State of California and the rights of parties hereunder, to
the extent not otherwise provided herein, shall be determined in accordance with
the article of the Uniform Required Code relating to documents of title as
adopted in the State of California.
9. NOTICES. Any notice or other communication required or permitted
hereunder unless otherwise specifically provided, shall be in writing, and shall
be effective upon receipt at the following addresses, unless a change is
specified in writing by a party hereto:
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TO: MORGAN & SAMPSON, INC.
Corporate Office
1651 South Carlos Ave.
Ontario, CA 91761
TO: ULTRAFEM, INC.
500 5th Avenue, Suite #3620
New York, NY 10110
10. MISCELLANEOUS. This Agreement constitutes the entire Agreement
between the parties pertaining to the subject matter hereof and supersedes
all prior and contemporaneous Agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are not
warranties, representations or other Agreements between the parties in
connection with the subject matter hereof except as specifically set forth
herein. No supplement, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the party to be bound thereby.
No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar),
or shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
11. SUCCESSORS AND ASSIGNS. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed.
ULTRAFEM, INC. MORGAN & SAMPSON, INC.
By: /s/ Audrey Contente By: /s/ Daniel B. Morgan, Jr.
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Audrey Contente Daniel B. Morgan, Jr.
Senior Vice President Executive Vice President
Dated: 6/3/96 Dated: 5/31/96
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