iPura® Supplier Agreement
iPura® Supplier
Agreement
This
iPura® Supplier
Agreement (“Agreement”)
is dated, for reference purposes only, the _____ day of _______________ 2008
(the "Effective Date"),
by and between
Sao Ta Foods Joint-Stock Company
(FIMEX VN), a company organized and duly established under the laws of
the Socialist Republic of Vietnam ("Processor"):
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Business Registration Certificate
No.
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5903000012
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Date of issuance
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19/12/2002
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Place of issuance
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Department
of Planning and Investment of Soc Trang
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Address
of head office
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Km
2132, National Road ▇▇, ▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
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Represented by
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▇▇.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇- General Director
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Tel
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008479822223-008479822204
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Fax
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008479822122-008479825665
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and
iPura Food Distribution Co., Inc.,
a corporation organized and duly established under the laws of the State of
Delaware, United States of America ("IFD"):
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Certificate of Incorporation
No.
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456
1276
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Date of issuance
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13
June 2008
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Place of issuance
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Wilmington,
Delaware
Corporate
Trust Center
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▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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1
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Address
of head office
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▇▇
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▇▇▇▇▇▇▇,
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Tel
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▇▇▇-▇▇▇-▇▇▇▇
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Fax
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▇▇▇-▇▇▇-▇▇▇▇
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Represented
by
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▇▇▇▇▇▇▇ ▇▇▇▇ Bien-USA Passport 712060-193 |
IFD and
Processor are sometimes hereinafter referred individually to as “Party” and collectively to as
“Parties”.
Recitals:
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A.
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IFD
is a wholly-owned subsidiary of Global Food Technologies, Inc., a
corporation organized and duly established under the laws of the State of
Delaware, United States of America (“GFT”), for the purpose
of engaging in the procurement and distribution of various foods processed
through GFT’s “iPura
System”.
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B.
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Processor
is in the business of processing certain species of seafood (defined more
specifically below under “Seafood”) at “Processor’s Plant”, from
live to packaging, and then selling that packaged product to its
customer(s).
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C.
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Concurrently
with the execution of this Agreement, GFT and Processor have entered into
that certain iPura Food
Safety & Quality Assurance Services Agreement (“iPura Services Agreement”) of
even date herewith, providing to Processor some of the benefits of GFT’s
iPura
Food Safety and Quality Assurance Services Program (“iPura Food Safety Program”),
representing The Highest
Standard in Food Safety™, making food products cleaner and safer
without affecting the natural taste, texture, color or nutritional value
of the processed food. IFD is the “Buyer” referred to in
the iPura
Services Agreement.
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More
importantly, the Processor via this business arrangement with GFT under this
Agreement will have better chances to gain recognition as having the highest
standards in processing seafood and food safety in the international market,
especially in the U.S., and also have an opportunity to gain international
market share.
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D.
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Processor
is concurrently entering into the iPura
Services Agreement and this Agreement for the purpose of implementing
Processor’s desire to participate in GFT’s “iPura Supplier Program”, which
will consist of two principal components in the arrangements between
Processor and GFT: the iPura
Food Safety
Program, as more particularly described in the iPura
Services Agreement, and
a supplier arrangement between Processor and GFT and/or one of GFT’s
affiliated companies (referred to as the “Buyer” in the iPura
Services Agreement), as effected by this Agreement (referred to as the
“SA” in the iPura
Services Agreement) between Processor and IFD, whereby Processor agrees to
fulfill all of IFD’s orders for Processor’s Seafood bearing the iPura
Seal on its packaging (such Seafood being referred to as “iPura-labeled
Seafood”).
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E.
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This
Agreement sets forth the understanding between Processor and IFD
concerning Processor's acting as a supplier to fulfill IFD’s orders for
iPura-labeled
Seafood in satisfaction of the requirement that Processor enter into a SA
with GFT and/or one of GFT’s affiliated companies as required for
participation in the iPura
Supplier Program.
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NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, Processor and IFD agree as follows:
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1.
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DEFINITIONS.
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As used
herein, the following terms have the following meanings:
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1.1
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Buyer has the
meaning set forth in Preambles C and D
above.
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1.2
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Confidential
Information has the meaning set forth in Section
10.1.
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1.3
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Direct
Competitor means any person or entity whose primary business is
food processing and/or food safety, or any person or entity controlling,
controlled by or under common control with such a person or
entity.
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1.4
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Effective Date
means the date this Agreement and the iPura
Services Agreement are finally signed by both Parties, and this Agreement
shall not be effective unless and until each Party has executed it and the
iPura
Services Agreement and provided the other with a copy of it and the iPura
Services Agreement containing their original signature in accordance with
the terms of this Agreement and the iPura
Services Agreement. In furtherance thereof, the last party to
sign shall insert the date it signs this Agreement and the iPura
Services Agreement in the space provided for the "Effective Date" in the
first paragraph on Page 1 of this
Agreement.
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3
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1.5
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FFDCA has the
meaning set forth in Section
6.1(b).
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1.6
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FPLA has the
meaning set forth in Section
6.1(b).
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1.7
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Force Majeure
means, in relation to either Party, any event that is beyond the
reasonable control of any Party which has not been brought about at the
instance of the Party claiming an event of Force Majeure and which such
Party could not prevent or overcome despite having exercised due care and
diligence and which results in failure of the implementation of the
Agreement. Such events, provided they satisfy the requirements stated in
the preceding sentence, shall include, but not be limited to, the
following: (a) earthquake or flood; (b) cyclone or other extreme climatic
disturbances; (c) acts of terrorism; (d) war or hostilities (whether
declared or not); (e) change in government regulations; and (f) new legal
prohibitions including i.e., the refusal to issue visas or export
licenses, invasion, act of foreign enemy, rebellion, weapon conflict or
military actions, civil war, ionizing radiation, contamination by
radioactivity from nuclear fuel, any nuclear waste, radioactive toxic
explosion or volcanic eruptions;
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1.8
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GFT Personnel
means any and all employees, officers, agents, independent contractors and
representatives of GFT.
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1.9
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Governmental
Authority means any law, statute, ordinance, rule, regulation,
order, writ, injunction, decree, judgment, award or other order or
requirement of any foreign, federal, state or local governmental or
regulatory body, department, bureau, office, administrative agency, court
or authority or body.
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1.10
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Installation
Date means that date when GFT gives notice to Processor that it has
accepted Processor's complete installation of the iPura
System at the Site and the iPura Food Safety Team, consisting of a
microbiologist, quality control supervisor, process engineer, maintenance
technician and sanitation supervisor, in shifts determined by GFT as
provided in the iPura
Services Agreement, is prepared to accept Product for processing through
the system.
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1.11
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IFD Indemnitees
has the meaning set forth in Section
6.2.
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1.12
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iPura Food
Safety Program means
the iPura System and the
iPura Services.
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1.13
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iPura-labeled Seafood
has the meaning set forth in Preamble
D.
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4
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1.14
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iPura Seal means the
trademarked marketing materials set forth on Exhibit A to the iPura
Services Agreement, or such other materials as GFT shall provide to
Processor from time to time and identify as part of the iPura
Seal.
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1.15
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iPura Services means
the onsite services performed by GFT Personnel utilizing the iPura System as more
specifically delineated in Section 4 of the iPura
Services Agreement.
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1.16
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iPura Supplier
Program has the meaning set forth in Preamble D
above.
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1.17
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iPura System means
the combination of GFT’s proprietary integrated equipment,
parts/tools/supplies, methods, processes and other components
specially manufactured, installed, operated, monitored and/or maintained
by or for GFT to treat Product which, when so treated, is eligible for
packaging in packages bearing the iPura
Seal, all as more particularly described in the iPura
Services Agreement.
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1.18
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iPura Food Safety &
Quality Assurance Services Agreement means that certain agreement
between GFT and Processor executed concurrently herewith and dated the
same date hereof, providing to Processor some of the benefits of the iPura Food Safety
Program.
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1.19
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iPura Services
Agreement means the iPura Food Safety &
Quality Assurance Services
Agreement.
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1.20
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MFP and Adjusted MFP
have the meanings set forth in Section
4.1.
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1.21
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More Favorable MFP
and Adjusted More
Favorable MFP have the meanings set forth in Section
4.1.
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1.22
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Ordered Product
has the meaning set forth in Section
6.1(a).
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1.23
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Processor's
Plant means the processing facility occupied by Processor at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.,
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1.24
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Product means
the seafood products to be designated by the
Parties. Initially, the only Product is
Seafood.
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1.25
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Seafood means
only shrimp.
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1.26
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SA has the
meaning set forth in Preamble D
above.
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1.27
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Targeted
Territories has the meaning set forth in Section
5.2.
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1.28
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Term, Initial
Term and
Renewal
Term have the meanings set forth in Section
8.
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1.29
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United States
means the United States of America and all of its
territories.
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1.30
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Vietnam means
the Socialist Republic of Vietnam.
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1.31
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Vietnam
Dong means the
lawful currency of Vietnam.
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1.32
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Vietnamese
Authority means any and all of the following: the National Assembly
of Vietnam, the Standing Committee of the National Assembly of Vietnam,
the President of the Socialist Republic of Vietnam, the Government of
Vietnam, the Prime Minister, the Government Office, any Ministries, any
People's Committees or any other State agency in
Vietnam.
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2.
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FULLFILLMENT
of IFD ORDERS for iPura-LABELED
SEAFOOD.
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Processor
shall promptly process, fulfill, supply and ship all orders submitted by
IFD for iPura-labeled
Seafood on the terms and conditions set forth in this
Agreement. Processor shall ship each order to any location in
the world designated by IFD in the documentation for such
order.
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Processor
shall not (a) attach the iPura
Seal to any Product or package other than to Seafood and packages ordered
by IFD, (b) fulfill or otherwise honor any order for iPura-labeled
Seafood submitted by or destined to customers other than IFD or persons or
entities designated in writing by IFD, nor (c) use the iPura
name or likeness in promoting, selling or otherwise marketing other than
iPura-labeled
Seafood. It is the intent of the Parties that Processor be one
of IFD’s suppliers to assure IFD of a reliable source of iPura-labeled
Seafood under GFT’s iPura
Supplier Program, and that Processor implement, observe and maintain the
highest standard in food safety at Processor’s Plant in conformance with
the iPura Food Safety
Program throughout the Term of this Agreement to ensure that iPura-labeled
Seafood is recognized internationally as the safest and best quality
Seafood available.
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Any
violation by the Processor of the obligations provided in Sections 2.1 and
2.2 shall be considered a material breach, entitling IFD not only to
pursue any and all remedies available to it but also to terminate this
Agreement in accordance with Section
8.3(b).
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6
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3.
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REFERRAL OF LEADS AND
INQUIRIES.
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3.1
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From
time to time, Processor may receive leads or inquiries concerning the
purchase of iPura-labeled
Seafood. Processor shall immediately notify and, within twenty-four (24)
hours after its receipt of such lead or inquiry, direct all such leads and
inquiries to IFD in the most expeditious manner possible, and IFD will
attempt to obtain a purchase order for the requested iPura-labeled
Seafood from the particular potential customer so inquiring as soon as
possible after Processor sends the name of such potential customer to
IFD.
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4.
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PRICES AND
PAYMENTS.
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4.1
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Charges to IFD.
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(a)
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For
a term of one year following the Installation Date, Processor undertakes,
represents and warrants that the price and aggregate economic and sale
terms under this Agreement with respect to any Seafood shall at no time be
less favorable to IFD than Two and half cents (US$0.025) per Pound below
the MFP (as defined below) applicable to for Seafood of the same
specifications (such specification shall be determined by the final
product form but does not include packaging) and quality ordered by IFD,
or an item substantially similar to such Seafood (the “Adjusted MFP”).
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(b)
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Within
the first 3 (three) days of a calendar month), Processor shall provide to
IFD a list of its most favorable prices of Seafood of all specifications
that it will have sold to other third party customers during the
immediately preceding full calendar month without revealing the identity
of such customers (the “MFP”) and warranty the
truthfulness of such list.
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(c)
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Subject
to paragraph (d) below, the Processor undertakes not to sell Seafood to
any other customers at the price lower than the MFP for Seafood
of the same specification.
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(d)
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Processor
agrees to sell to IFD, and IFD agrees to purchase from Processor, all the
Seafood IFD orders at the then applicable Adjusted
MFP.
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(e)
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If
at any time Processor offers to sell Seafood with the same specification
or any items substantially similar to such Seafood at prices or on
aggregate economic and sale terms more favorable than the MFP most
recently determined (“More Favorable MFP”),
Processor shall give IFD prompt notice of such offer within three (3)
business days and thereafter the most recently determined Adjusted MFP
shall be immediately and automatically adjusted increased or decreased to
be determined by the raw material situation for the next orders ("Adjusted More Favorable
MFP").
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(f)
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If
there is any dispute arising regarding the truthfulness of the MFP
provided in accordance with paragraph (a) or the compliance of Processor
with the undertakings in this Section 4.1, IFD has the right to terminate
this Agreement. In addition, if the breach of the warranty in
paragraph (a) and/or of the undertakings in this Section 4.1 is proven,
IFD shall have the right to invoke the right provided to it in Section
8.3.
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All
references to “Pound” and “Pounds” in this Agreement are to the US Standard
Weights and Measures system of measurement.
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4.2
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Payments to
Processor.
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(a)
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Payments
to Processor shall be made per the terms of the most recently determined
Adjusted MFP or Adjusted More Favorable MFP, as appropriate, and the other
MFP provisions determined pursuant to Section 4.1. All payments
made by IFD to Processor pursuant to this Agreement shall be in United
States Dollars.
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(b)
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When
due pursuant to the MFP provisions of Section 4.1, payment by IFD shall be
made by bank transfer through the designated account of Processor or
payment term is L/C at sight.
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5.
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OBLIGATIONS,
COVENANTS, REPRESENTATIONS and WARRANTIES of
IFD.
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5.1
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Standards and Selling
Efforts. IFD shall use commercially reasonable efforts
to sell and distribute the iPura-labeled
Seafood and promote and solicit orders for the iPura-labeled
Seafood so as to create substantial volume of profitable business for
Processor and IFD, (a) first, in the United States, and (b) secondarily,
outside of the United States when, in IFD’s sole judgment, the United
States market has been developed sufficiently to justify expanding to
areas outside of the United
States.
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5.2
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Governmental
Authority. IFD shall promptly and continuously obey all
Governmental Authority required for the sale and distribution of
iPura-labeled Seafood in the relevant areas targeted periodically under
the timetable determined under the provisions of Section 5.1(a) and (b)
above (the “Targeted
Territories”). In the event IFP decides to sell and distribute
iPura-labeled
Seafood in Vietnam, it is understood that IFP shall also promptly and
continuously obey all relevant regulations required for the sale and
distribution of iPura-labeled
Seafood in Vietnam, including obtaining any necessary approvals and
permits from the relevant Vietnamese Authority, if so required by the laws
of Vietnam.
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5.3
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Promotion and Advertising.
IFD shall engage in those marketing and advertising activities it deems
advisable, in its sole judgment, to promote sales of the iPura-labeled
Seafood in the Targeted Territories, subject to the relevant regulations
on marketing and advertising in the Targeted Territories, including the
relevant regulations of Vietnam if such Seafood is sold in Vietnam, but
the timing and manner thereof to be determined by IFD in its sole
discretion.
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5.4
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Notification of Infringements
or Interferences. Promptly after receiving information of an
infringement of or interference with its rights hereunder by others, IFD
shall notify Processor in writing thereof. Said notice shall include, if
said information is available to IFD, the name, address and all other
relevant information with respect to the identification and infringing
and/or interfering actions of said other persons or entities. Upon receipt
of such notice, and if IFD so requests in writing, Processor shall take
immediate action to prevent such infringing and/or interfering action from
continuing and to recover for the benefit of IFD all of the damages
suffered by IFD as a result thereof. In the event IFD requests
such action of Processor, IFD agrees to (1) cooperate fully with Processor
in the prosecution of such action; (2) bear reasonable costs and expenses
i.e., legal fees in relation to such prosecution; and (3) assign to
Processor, in trust for the benefit of IFD, any and all rights that it may
have as a result of such infringement and/or interference so as to enable
Processor to realize the maximum possible recovery in such
action.
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The
proceeds from any settlement or any money judgment rendered in connection with
any action or other proceeding against such infringers or interferers shall be
applied and allocated in the following manner: first, Processor shall be
entitled to an "off-the-top" deduction for its reasonable attorneys' fees, costs
and expenses incurred in connection with such settlement, action or other
proceeding; and second, the remaining amount after such deduction shall be paid
to IFD. Conversely, IFD may prosecute any such action itself, in
which event Processor agrees to fully cooperate with IFD in the prosecution of
such action.
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5.5
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Re-Shipments. All
expenses and charges arising out of the diversion or re-consignment of
shipments of iPura-labeled
Seafood purchased by IFD caused by the failure of IFD to accept and/or pay
for same shall be paid by IFD to Processor on
demand.
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6.
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OBLIGATIONS,
COVENANTS, REPRESENTATIONS and WARRANTIES of
PROCESSOR.
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6.1
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Compliance. Processor
hereby represents and warrants as
follows:
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(a)
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the
Product, including its packaging and labeling, contained in any shipment
or delivery made to or on the order of IFD (the “Ordered Product”) shall
conform to the descriptions and requirements set forth in each respective
purchase order by IFD;
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(b)
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in
addition to observing the relevant laws of Vietnam relating to, among
others, product quality, standards and technical regulations, the
Processor undertakes to and shall comply with the procedures applicable
for each order by IFD, and the Ordered Product will not be adulterated,
mislabeled or mispackaged within the meaning of the United States Federal
Food, Drug, and Cosmetic Act (the “FFDCA”) or the United States Fair
Packaging and Labeling Act and related regulations (the
“FPLA”);
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(c)
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the
Ordered Product will be fit for human
consumption;
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(d)
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the
Ordered Product will be free of antibiotics and any other drugs not
approved for use in food by the U.S. Food and Drug Administration;
and
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(e)
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the
Ordered Product will be in compliance with all applicable Governmental
Authority, including the relevant laws of Vietnam [relating to, among
others, product quality, standards and technical
regulations].
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6.2
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Indemnification. Processor
agrees to indemnify, hold harmless and defend IFD, its affiliates and
their respective directors, officers, agents, employees, representatives,
successors, and assigns (severally and collectively the “IFD Indemnitees”) from
and against any and all liabilities, losses, damages, claims, suits and
expenses, including without limitation reasonable attorneys’ fees, of
whatever kind and nature imposed upon or incurred by or asserted against
the IFD Indemnitees relating to or arising out of a breach of this
Agreement by Processor, including but not limited to breach of the
warranties set forth in Section 6.1 above. Processor shall pay
all costs and damages finally awarded against the IFD Indemnitees in such
an action provided that IFD gives Processor prompt written notice of such
claim, reasonable assistance and sole authority to defend and settle such
claim. Processor shall pay IFD’s reasonable expenses associated
with providing such assistance.
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7.
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SUPPLIES AND
DELIVERIES.
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Processor
shall maintain sufficient inventory and supplies to enable it to fulfill and
shall stand ready to deliver promptly all purchase orders submitted by IFD for
the Seafood. Processor undertakes to and shall fulfill all orders submitted by
IFD on a “first priority basis”, processing all of IFD’s orders promptly and
completely after their receipt ahead of all other orders of other customers of
Processor then or later in Processor’s system. Absent extraordinary
circumstances and any event of Force Majuere, Processor undertakes to and shall,
absent other written instructions received from IFD, make delivery to IFD of
each purchase order submitted by IFD within thirty (30) days after Processor'
receipt of said order in accordance with the terms of delivery indicated by IFD.
Processor shall promptly furnish to IFD such information relating to the
processing and delivery of Seafood as IFD may request from time to
time.
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8.
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TERM and RENEWAL
TERM.
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8.1
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Initial
Term. Unless terminated earlier pursuant to Section 8.3
hereof, the "Initial
Term" of this Agreement shall be coterminous with the “Term” of the
iPura Services
Agreement, commencing on the Effective Date and expiring three (3) years
after the Installation
Date. The Initial Term plus any subsequent Renewal Term(s) (as
defined in Section 8.2) shall constitute the “Term.”
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8.2
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Option to
Renew. Unless terminated earlier pursuant to Section 8.3
hereof, provided that GFT becomes entitled to and does in fact renew the
iPura
Services Agreement pursuant to Section 6.2 thereof, IFD shall have the
right and option, exercisable in its sole discretion, to fully renew this
Agreement for a concurrent Renewal Term (as such term is defined in the
iPura
Services Agreement) on as many occasions as the iPura
Services Agreement is renewed, all on the same terms and conditions herein
set forth. Said option must be exercised, if at all, by IFD giving written
notice to Processor of the exercise of such option on or before the date
of expiration of the initial Term or any then current Renewal
Term
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8.3
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Termination by
IFD.
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(a)
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Dependency of
Agreements. Processor and IFD understand and agree that
IFD would not execute this Agreement unless adequate assurance was given
that if Processor breaches either this Agreement or the iPura
Services Agreement, such breach would constitute a breach under
both of said agreements. Accordingly, Processor and IFD agree
that any breach by Processor under this Agreement or the iPura
Services Agreement shall constitute a breach under both of said
agreements, whereupon IFD shall be entitled to pursue any one or more or
all of its remedies, including the right to terminate, under any one or
both of said agreements for said
breach.
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(b)
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Breach. If
Processor breaches this Agreement, IFD may terminate this Agreement if
Processor shall not have fully cured the breach within thirty (30) days
after IFD gives written notice to Processor specifying the
breach.
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(c)
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Insolvency. IFD
shall have the right to terminate this Agreement immediately upon written
notice to the Processor in the event that Processor becomes insolvent,
proposes any dissolution, liquidation, composition, financial
reorganization or recapitalization with creditors, or makes an assignment
for the benefit of creditors, or if any receiver, liquidator, creditor or
similar agent is appointed or takes possession with respect to any
property or business of Processor, or if Processor has filed against it a
petition under any bankruptcy code or insolvency law which is not
dismissed within sixty (60) days.
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9.
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INDEPENDENT
CONTRACTORS.
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The
relationship of Processor to IFD is that of an independent contractor, and this
Agreement shall not constitute, or be deemed to constitute, either Party as an
employee, agent, partner or joint venturer of the other for any
purpose. Neither Party has the right or authority under this
Agreement to assume or to create any obligation or responsibility on behalf of
the other Party.
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10.
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CONFIDENTIALITY.
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10.1
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Confidential
Information. Processor may be given access to
information or materials, or portions thereof, that are considered trade
secret, confidential and/or proprietary to IFD, and other documentation,
materials, or technical information related to IFD (“Confidential
Information”).
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10.2
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Restrictions on Use
and Disclosure. Processor undertakes and agrees
that it (i) shall treat all Confidential Information as strictly
confidential; (ii) shall not disclose any Confidential Information to any
other person or entity without the prior written consent of IFD; (iii)
shall protect the Confidential Information with at least the same degree
of care and confidentiality as it affords its own confidential
information, at all times exercising at least a reasonable degree of care
in such protection; and (iv) shall not use any Confidential Information
for any purpose other than the implementation of this
Agreement. The restrictions in this Section 10.2 shall survive
for a period of five (5) years after the termination or expiration of this
Agreement, except that such non-disclosure period shall be perpetual in
the case of Licensed Materials or any portions thereof, and any of the
Confidential Information that is a trade
secret.
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10.3
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Return of Confidential
Information. Processor further undertakes and agrees
that it shall promptly return all tangible material embodying Confidential
Information (in any form and including, without limitation, all summaries,
copies and excerpts of Confidential Information) upon the earlier of (i)
the termination or expiration of this Agreement; or (ii) IFD’s written
request.
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10.4
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Terms of
Agreement. Processor understands that IFD could suffer
serious harm if the terms of this Agreement were ever to be divulged to
others. Processor agrees, and represents and warrants to IFD,
that Processor will not disclose any of the provisions of this Agreement
to anyone except its attorney, banker, accountant and/or prospective
bona-fide purchaser of its business (none of whom shall disclose it to any
other person) or pursuant to court order. Any disclosure
thereof by Processor or its attorney, banker, accountant and/or
prospective bona-fide purchaser of its business to another person will be
deemed a violation of this Section 10.4. Processor shall take
all necessary precautions to ensure the safekeeping and confidentiality of
this Agreement. Processor's violation of this confidentiality
clause shall constitute a breach of this Agreement, terminate Processor's
option to extend the term of this Agreement (if any is provided for
herein), and IFD shall have the right to terminate this Agreement and/or
pursue any other remedies available to
IFD.
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11.
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ASSIGNMENT.
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Neither
Party may assign this Agreement, nor assign any of its rights nor delegate any
of its obligations hereunder, without the prior written consent of the other
Party, not to be unreasonably withheld (except that IFD's consent to any
outsourcing of Processor's services may be denied in IFD's sole
discretion). Any attempt to assign this Agreement without the other
Party’s written consent will be void. Notwithstanding the foregoing
(but still subject to IFD's consent in its sole discretion to any action which
in substance might constitute outsourcing), Processor may assign this Agreement,
or assign any of its rights or delegate any of its obligations hereunder,
without IFD's consent to any parent, subsidiary, or affiliate of Processor, or
to the surviving entity resulting from any merger, acquisition, or consolidation
involving such Party, so long as (i) the assignee or delegatee agrees in writing
to be bound by the terms of the Agreement; (ii) Processor acknowledges that it
understands that it is still bound as an assignor or delegator for the
performance of all obligations of the assignee or delegatee under this
Agreement; (iii) Processor provides thirty (30) days advance written notice of
such assignment or delegation to IFD; and (iv) Processor’s assignee is not a
Direct Competitor of IFD or any parent, subsidiary, or affiliate of
IFD. Furthermore, notwithstanding the foregoing, GFT may assign or
delegate, as appropriate, any of its rights or obligations hereunder to any
parent, subsidiary, or affiliate of GFT.
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12.
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FORCE
MAJEURE.
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If either
Party is affected by Force Majeure, it shall immediately notify the other Party
in writing of the nature and extent thereof.
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(i)
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Neither
Party shall be deemed to be in breach of this Agreement, or otherwise be
liable to the other, by reason of any delay in performance, or
non-performance, of any of its obligations hereunder to the extent that
such delay or non-performance is due to any Force Majeure of which it has
notified the other Party in writing; and the time for performance of that
obligation shall be extended accordingly by the
Parties.
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14
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(ii)
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IFD
may terminate this Agreement, or any portion that IFD deems affected by
the Force Majeure condition, by delivering written notice to the Processor
without obligation to pay any compensation to the Processor, if the Force
Majeure condition has continued for a period of thirty (30) days or longer
and IFD determines, in its sole judgment, that the Force Majeure has
caused a material adverse effect on the execution of Processor’s
obligations under this Agreement, thereby impairing IFD's ability to
realize some or all of the purposes for which it entered in to this
Agreement.
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13.
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GOVERNING LAW;
LANGUAGE.
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13.1
|
This
Agreement shall be construed and interpreted in accordance with the laws
of the United States of America and the State of California, excluding
their choice of law rules.
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13.2
|
The
Parties shall use their best efforts to settle amicably through
negotiations any question, dispute, controversy, difference or claim
arising out of or relating to this Agreement or the breach, termination or
validity thereof (“Dispute”).
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13.3
|
If
the Dispute is not settled amicably through negotiations, such Party may
give a notice of such Dispute ("Notice of Dispute") to
the other Party specifically referring to this Section and giving brief
particulars of the Dispute.
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13.4
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If
such Dispute is not settled through further negotiations within [thirty
(30)] days of the date of service of such Notice of Dispute, it shall be
referred to and finally resolved by the Singapore International
Arbitration Centre (“SIAC”) in accordance
with its practice rules and regulations. Where the Dispute is referred to
SIAC, the arbitration shall be conducted in English and presided over by
three (3) arbitrators, one each to be appointed by each Party hereto and a
third to be appointed with the mutual agreement of both Parties, failing
which the third arbitrator shall be appointed by the Chairman of
SIAC.
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13.5
|
During
and without prejudice to the arbitration process, this Agreement shall
continue to be performed.
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13.6
|
Any
award or decision of any arbitration under this Section shall be binding
and enforceable against the Parties contemplated by the said award or
decision and costs shall be borne equally unless SIAC determines otherwise
at its discretion.
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13.7
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The
language of this Agreement and all related documentation shall be the
American usage of the English language and the Parties hereby agree that
the English language version of this Agreement shall control for all
purposes and shall be valid and enforceable notwithstanding any
translation into a language other than
English.
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14.
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UN
CONVENTION ON CONTRACTS FOR SALE OF GOODS.
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The
Parties expressly agree that the United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
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15.
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EXPORT/IMPORT
RESTRICTIONS.
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The
Parties shall comply with and shall fully cooperate with each other in complying
with any and all applicable Governmental Authority in relation to the
exportation and importation of the Seafood and to each Party’s performance under
this Agreement including, without limitation, obtaining all necessary licenses,
permits and/or approvals necessary for the import or export of the
Seafood.
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16.
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NOTICES.
|
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All
notices, consents, requests, claims or demands permitted or required to be
sent under this Agreement shall be in writing and sent by facsimile,
registered mail, overnight mail, courier service, or hand
delivery. Notice, request or demand, as appropriate, shall be
deemed to have been given upon the earlier of the date of actual receipt
or three (3) days after the date of mailing if sent by registered or
overnight mail. Unless changed upon proper notice, notices,
requests and demands shall be sent to the addresses set forth
below:
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If
to Processor:
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If
to IFD:
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Sao
Ta Foods Joint-Stock Company (FIMEX
VN)
Km 2132 National Road ▇▇, ▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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iPura
Food Distribution Co., Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇:
008479822122-008479825665
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attn_Ms.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇, General Director
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Facsimile:
(559) 589-0111Attn: ▇▇▇▇▇ ▇▇▇▇▇,
President
& CEO
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17.
|
SEVERABILITY.
|
At any
time, if any provision in this Agreement is or becomes invalid, illegal or
unenforceable pursuant to applicable law, such provision shall be severable and
distinct from other provisions and the validity, legality and enforceability of
the remaining provisions shall not be affected. Furthermore, the Parties shall
use their best efforts to arrive at a new provision or clause consistent with
the overall intent and objectives of this Agreement.
Furthermore,
if any provision of this Agreement is or becomes prohibited or unenforceable in
any jurisdiction and is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability, it shall not invalidate the remaining
provisions of this Agreement nor affect the validity or enforceability of that
provision in any other jurisdiction.
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18.
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WAIVER.
|
The
waiver by either Party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach. Furthermore,
no failure to exercise or delay in exercising any right, power or remedy under
this Agreement operates as a waiver. A single or partial exercise or
waiver of the exercise of any right, power or remedy does not preclude any other
or further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the Party granting that waiver unless made in
writing.
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19.
|
CAPTIONS;
SINGULAR AND PLURAL; GENDER.
|
Captions
are included in this Agreement only for convenience of the Parties and not for
purposes of interpretation of this Agreement. When required by the
context of this Agreement, the singular shall include the plural and the plural
the singular. Similarly, all references to the masculine, feminine or
neuter also include the other genders, as the context requires.
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20.
|
DUTY TO PROMPTLY
INFORM.
|
Processor
shall immediately notify IFD if it becomes aware of any condition, rule and/or
regulation in Vietnam, proposed or enacted, which might or in fact does hinder,
restrict or otherwise adversely affect (1) the installation and/or operations of
the iPura
Food Safety Program at the Processor’s Plant or (2) the Processor’s
performance of its obligations under this Agreement and/or the iPura Services Agreement. In
such a case, Processor and IFD shall attempt to resolve the matter with the
objective of finding a mutually acceptable alternative solution to enable
Processor to fulfill its obligations under this Agreement. If Processor and IFD
cannot reach a mutually acceptable resolution promptly after Processor's
notification to GFT of such condition, rule and/or regulation, IFD may at its
own discretion terminate this Agreement in accordance with Section 8
hereof.
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21.
|
EXCLUSIVITY.
|
During
the Term, Processor shall not explore, discuss or reach an agreement with other
companies for doing a business or a project in Vietnam and/or other countries in
the South-East Asia region which is of a similar nature or business to that of
IFD and/or its affiliates relating to the iPura
Supplier Program.
During
the Term, Processor also undertakes not to and shall not be associated with,
either alone or in conjunction with others, any person or business entity other
than GFT and IFD in the manufacture, sale, export, importation, advertisement or
other dealings of or relating to products and/or services that are identical or
similar in formulation with the iPura
System, or which bear any name, ▇▇▇▇ or design similar to, capable of being
confused with or otherwise resembling GFT's Properties and GFT's
IP.
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22.
|
ENTIRE
AGREEMENT; AMENDMENT.
|
This
Agreement sets forth the complete agreement between the Parties with respect to
the supplier arrangements contemplated in the iPura
Supplier Program and supersedes all previous and contemporaneous agreements
(other than the iPura Services Agreement,
executed concurrently herewith, under which the iPura Food Safety Program, the
second component of the iPura
Supplier Program, is provided to Processor), correspondence, discussions,
understandings and representations, whether written or oral, with respect to
such arrangements. This Agreement may not be modified, supplemented,
or amended except in writing signed by an authorized representative of each
Party. It is expressly agreed that all terms and conditions on
purchase order documents prepared or issued by Processor that are inconsistent
with the provisions of this Agreement or the iPura
Services Agreement shall be null and void.
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23.
|
COUNTERPARTS AND
FACSIMILE TRANSMISSION
SIGNATURES.
|
This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed an original and all of which together shall constitute
one and the same instrument. Facsimile or photocopied signatures on
such counterparts shall be deemed the same as original
signatures.
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24.
|
SURVIVAL.
|
In
addition to any accrued but unpaid payment obligations existing at the time of
expiration or termination of this Agreement, the following Sections and
provisions shall survive expiration or termination of this Agreement: 1, 5.4,
6,7 (with respect to all orders previously submitted by IFD), 8.3(a), and 9
through 26, inclusive.
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25.
|
PARTIES
AFFECTED.
|
|
|
This
Agreement shall be binding upon and inure to the benefit of the Parties,
their representatives, and their permitted successors and assigns. The
action of any officer, partner, agent or other representative of any Party
shall be deemed to be the action of said
Party.
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26.
|
AUTHORITY
TO EXECUTE.
|
EACH
PERSON EXECUTING THIS AGREEMENT ON BEHALF OF ANY PARTY HERETO WHICH IS AN ENTITY
(PARTNERSHIP, CORPORATION, TRUST, ETC.), WHETHER AS A PARTNER, OFFICER, TRUSTEE,
ATTORNEY-IN-FACT, AGENT OR OTHERWISE OF SUCH ENTITY, REPRESENTS AND WARRANTS TO
THE OTHER PARTY, AS AN INDUCEMENT TO THE OTHER PARTY TO EXECUTE THIS AGREEMENT,
THAT (1) SUCH PERSON OCCUPIES THE OFFICE OR POSITION INDICATED AFTER HIS OR HER
NAME, HAVING BEEN DULY ELECTED OR APPOINTED TO SUCH OFFICE OR POSITION; (2) SUCH
ENTITY IS IN GOOD STANDING IN THE JURISDICTION OF ITS ORGANIZATION; (3) THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND ALL DOCUMENTS (IF ANY) REQUIRED TO
BE EXECUTED IN CONNECTION WITH IT, AND THE PERFORMANCE OF SUCH ENTITY’S
COVENANTS AND OBLIGATIONS UNDER THIS AGREEMENT AND SUCH DOCUMENTS, HAVE BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE, PARTNERSHIP, TRUST OR OTHER ACTION,
AS APPROPRIATE; AND (4) WHEN EXECUTED BY SUCH PERSON IN THE CAPACITY INDICATED
AFTER HIS OR HER NAME, THIS AGREEMENT AND SUCH DOCUMENTS WILL BE FULLY BINDING
ON SUCH ENTITY ACCORDING TO THEIR TERMS.
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IN
WITNESS WHEREOF, the Parties hereto have
caused this Agreement to be executed by their duly authorized representatives as
of the Effective Date.
|
iPura
Food Distribution Co., Inc., a Delaware corporation
(“IFD”)
|
Sao
Ta Foods Joint-Stock Company (FIMEX VN) (“Processor”)
|
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|
By:
|
By:
|
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|
Its:
|
Its:
|
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