Company shall forward to the Offended Distributor upon receipt, if any, from the
Transshipping Distributor, not less than the Offended Distributor's most current
average gross margin per case of the Beverages transshipped. For purposes of the
Agreement, "Offended Distributor" shall mean a distributor of Beverages in
Authorized Containers into whose territory a Beverage in Authorized Containers
is transshipped.
(b)
In the event Beverages distributed or sold by Distributor are found in
the territory of an Offended Distributor, Distributor shall make available to
Company all documents and records relating to such Beverages and shall assist
Company in all investigations relating to such Beverages. The decisions as to
which remedy to pursue and whether to pursue any remedy shall be in the sole
discretion of Company.
III. TERMS AND CONDITIONS OF SALE OF THE BEVERAGES
9.
If Distributor is unable to purchase the Beverages from an Approved
Processor at a price (the "Offer Price") that is acceptable to Distributor,
Distributor may give written notice to Company describing the circumstances.
Within thirty (30) days of its receipt of such notice. Company shall use
reasonable commercial efforts to obtain an Offer Price that is acceptable to
Distributor. If Company is unable to obtain an Offer Price that is acceptable to
Distributor, Distributor may, at its option, notify Company that Distributor is
unwilling to purchase the Beverages at the Offer Price. In this event, Company
shall notify Distributor in writing that Distributor's authorization in respect
of that Beverage or those Beverages or Authorized Container or Authorized
Containers for which Distributor is unwilling to pay the revised price is
cancelled, such cancellation to be effective sixty (60) days after the date of
Company's notice thereof.
8
10.
Except to the extent that paragraph 9 hereof may apply, Distributor shall
purchase Beverages from Approved Processors at a price and under terms or
conditions as agreed by and between Distributor and any Approved Processor.
IV. OBLIGATIONS OF COMPANY RELATING TO THE BEVERAGES
11.
Except as provided in paragraphs 5 and 16 hereof, Company, for the Term of
the Agreement and any renewal of the Term which may occur in accordance with
paragraph 20, will not distribute or sell or authorize third parties to
distribute or sell the Beverages in Authorized Containers in the Territory.
12.
Company covenants that it will require each Approved Processor to warrant
to Distributor that the Beverages delivered to Distributor shall comply in all
respects with the Federal Food, Drug and Cosmetic Act, as amended (the "Act"),
and all federal, state and local laws, rules, regulations and guidelines
applicable in the Territory. Further, Company warrants it will require each
Approved Processor to warrant to Distributor that all Beverages shipped to
Distributor, and all packaging and other materials which come in contact with
such Beverages, will not at the time of shipment to Distributor be adulterated,
contaminated, or misbranded within the meaning of the Act or any other federal,
state or local law, rule or regulation applicable in the Territory, and that
such Beverages,