The Negotiation and Drafting of International Contracts Course of Mr. Robert Simpson
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- US Cases to Brief Brown v. Board of Education, 347 U.S. 483 (1954)
- Opinions WARREN, C.J., Opinion of the Court
DISTRIBUTION AGREEMENT This DISTRIBUTION AGREEMENT (the “Agreement”) is made and entered into this ________ day of ___________, 2002, by and between: _________________., a French société par actions simplifiée, with its registered office at _______________, France, represented by its President, __________________(hereinafter referred to as the "COMPANY"); and __________________, a Dutch limited liability company with offices at ________________________, The Netherlands, represented by____________________, authorized agent (such company as well as any other member of its group of companies to which it may assign this Agreement and/or or its rights and obligations hereunder being referred to hereinafter as the “DISTRIBUTOR”). The COMPANY hereby agrees to sell Products (as hereinafter defined) to DISTRIBUTOR and DISTRIBUTOR hereby agrees to purchase Products from the COMPANY upon the following terms and conditions: Article 1. Definitions 1.1. The term “Products” shall mean and include __________________________ and any other products developed, manufactured and/or sold by the COMPANY, including those listed or referred to in the Agreement for the Sale of Stock of even date herewith with respect to DISTRIBUTOR’s purchase of stock of the COMPANY. From time to time during the term of this Agreement, the parties may agree to add or delete Products covered by the Agreement. 1.2. The term “Territory” shall mean worldwide. 1.3. The term “Term” shall mean an initial period of ten (10) years, provided that this Agreement may be renewed upon mutual written agreement of the parties. Article 2. Appointment of DISTRIBUTOR 2.1. The COMPANY hereby appoints DISTRIBUTOR as a non- exclusive distributor of the Products in compliance with the terms of this Agreement. 2.2. The rights and privileges of this Agreement are personal to DISTRIBUTOR and may not be assigned, transferred or assigned, in any manner whatsoever, except to any other members of DISTRIBUTOR’s group of companies, without the COMPANY’s written consent; provided, however, that the parties acknowledge that DISTRIBUTOR may distribute the Products through its own sub-distributors worldwide. 2.3. It is agreed that the execution of this Agreement shall not limit in any way DISTRIBUTOR’s right to sell any Products similar to the Products directly to any class of customers, for private label by third parties, through other distributors or in any other way, in any geographical location. Article 3. Duties of DISTRIBUTOR 3.1. DISTRIBUTOR hereby accepts the appointment as distributor (as described in Article 2 above), represents that it and other companies of its group have adequate facilities and personnel to perform the services hereinafter set forth. 3.2. It is the current intent of DISTRIBUTOR that _________’s operations at ______________ in the United Kingdom and its specialty operations at _______ in the United Kingdom and at Chicago, Illinois in the United States, along with other regional sales groups as appropriate, shall take an active role in the market development and sale of the Products. 3.3. DISTRIBUTOR agrees to the following: 3.3.1. DISTRIBUTOR shall use its commercially reasonable efforts to promote the distribution and sale of the Products in the Territory. 3.3.2. DISTRIBUTOR shall promote the Products throughout the Territory at its own expense. 3.3.3. DISTRIBUTOR shall comply with all applicable laws and regulations relating to the sale, use, packaging and labeling of the Products. 3.3.4. DISTRIBUTOR shall not make any changes in the Products, except with the prior written approval of the COMPANY. 3.3.5. DISTRIBUTOR shall provide Product services to its clients within the Territory. Article 4. Purchase of Products DISTRIBUTOR shall provide to the COMPANY, during the term of this Agreement, appropriate purchase orders for its requirements of Products. DISTRIBUTOR shall also provide appropriate forecasts for anticipated future purchases of Products. The COMPANY shall use its reasonable best efforts to fulfill firm purchase orders. Article 5. Delivery All Products shall be shipped to DISTRIBUTOR's designated facility. Article 6. Prices Net prices for the sale of Products by the COMPANY to DISTRIBUTOR (including applicable discounts if any) are FOB DISTRIBUTOR's facility, Incoterms 2000, and shall be set by the COMPANY. DISTRIBUTOR shall be responsible for any taxes. Annexed hereto are the net prices in effect on the date of execution of this Agreement. The COMPANY shall give DISTRIBUTOR sixty (60) days' notice of any price change. Article 7. Payments for Products Terms of payment shall also be annexed hereto. Article 8. Duties of the COMPANY The COMPANY agrees to the following: 8.1. To supply Products with the COMPANY’s trademarks, if so requested by DISTRIBUTOR. 8.2. To supply Products to be sold as private label, if so requested by DISTRIBUTOR, in standard, plain boxes or containers or, if DISTRIBUTOR so requests, to apply DISTRIBUTOR's private label packaging (in which case DISTRIBUTOR shall supply all copy and artwork). In such case, the COMPANY shall apply on each Product package trademarks and labels conforming to negatives and specifications provided by DISTRIBUTOR. DISTRIBUTOR shall bear the cost of any change requested by DISTRIBUTOR to the COMPANY’s standard packaging. No trademark, decorative feature, carton, label or other form of Product identification, other than those specified by DISTRIBUTOR, shall be visible during transportation for a normal use of the Product by an end-user. The COMPANY agrees that nothing contained herein shall be construed to grant to the COMPANY any rights in or any right to use any trademarks, trade names or logos of DISTRIBUTOR. 8.3. To make available to DISTRIBUTOR technical training adequate in the COMPANY’s opinion to facilitate sales and service of the Products. 8.4. To supply DISTRIBUTOR with a reasonable amount of technical and sales literature for Products. 8.5. To keep DISTRIBUTOR advised of any modifications of or improvements to the Products. Article 9. Specific Undertakings of DISTRIBUTOR During the term of this Agreement, DISTRIBUTOR agrees that: 9.1. It shall resell Products as a principal and not as an agent of the COMPANY. Unless DISTRIBUTOR elects to have the COMPANY’s label applied by the COMPANY, DISTRIBUTOR shall apply its own labels to all such Products which it resells. 9.2. It shall not damage, misuse or bring Products into disrepute. 9.3. It shall not create any expense or liability chargeable to the COMPANY. 9.4. It shall not contest the right, title or interest of the COMPANY or assist in any action contesting the right, title or interest of the COMPANY in the Products or any copyright, trademark or patent which may pertain thereto, except as to DISTRIBUTOR's copyrights, trademarks or patents. Article 10. Confidentiality 10.1. Each party shall treat as strictly confidential and secret all oral and written communications, lists, circulars and other documents with which it has been entrusted and which can be regarded from the normal commercial viewpoint or upon special indication by the other as trade secret or confidential information. Each party recognizes as confidential the terms and conditions of this Agreement, including price lists. 10.2. Each party shall impose similar obligations on its employees and others who may be required to have knowledge of any information in the ordinary course of business. Article 11. Limited Warranty; Limitation of Liability; Indemnification 11.1. The COMPANY warrants that the Products shall be free from defects in material or workmanship for the term applicable to each Product. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY’S SOLE OBLIGATION AND DISTRIBUTOR'S SOLE REMEDY ON ACCOUNT OF BREACH OF WARRANTY IS TO REPLACE DEFECTIVE PRODUCT, OR AT THE COMPANY’S DISCRETION, ISSUE A CREDIT FOR SAME. The COMPANY retains the right to inspect any Product alleged to be defective. 11.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INCIDENTAL OR CONSEQUENTIAL, INCLUDING CLAIMS FOR LOST BUSINESS, PROFITS OR REVENUES, EVEN IF IT HAD OR SHOULD HAVE HAD KNOWLEDGE OF THE POSSIBILITY THEREOF. 11.3. The COMPANY represents and warrants to DISTRIBUTOR that the COMPANY, at its own expense and in timely fashion, will defend, indemnify and hold DISTRIBUTOR harmless against any and all liabilities, damages, costs and expenses, including reasonable attorney fees, which DISTRIBUTOR may incur by reason by any claim or action instituted by any third party for infringement or misappropriation of proprietary rights; provided DISTRIBUTOR gives the COMPANY prompt notice of such claim, permits the COMPANY to defend or settle such claim, and provided the claim is not based upon any combination of the Product with any other product or upon modification of the Product by other than the COMPANY. 11.4. DISTRIBUTOR shall defend and indemnify the COMPANY against any claims brought by any end-user based upon warranties or representations as to the Products made by DISTRIBUTOR in excess of any warranty or representation made in writing by the COMPANY. Article 12. Default and Remedies 12.1. In the event that either DISTRIBUTOR or the COMPANY fails to perform any material obligation or provision of this Agreement, including but not limited to the payment for the Products, and such failure is not cured within thirty (30) days after receipt of notice from the party not in default, or if either party becomes subject to any bankruptcy proceedings, then the other party may terminate this Agreement. 12.2. In the event DISTRIBUTOR shall be in default in the performance of any of its obligations hereunder, including the payment of invoices when due, the COMPANY shall, in addition to any other remedies it may have available to it, have the right to withhold further shipment of Products until such default shall be cured. Article 13. Effect of Expiration or Termination Upon the expiration of the term of this Agreement or the earlier termination thereof: 13.1. DISTRIBUTOR thereafter shall not sell the Products directly or indirectly without the COMPANY’s written consent, with the exception of material fully paid for and in the possession of DISTRIBUTOR. 13.2. DISTRIBUTOR and the COMPANY shall promptly deliver to the other all confidential information and other pertinent documentation in such party's possession. 13.3. DISTRIBUTOR shall not use or disclose to any other person confidential information concerning Products after the date of termination or expiration of this Agreement. 13.4. DISTRIBUTOR shall not be entitled to any compensation or indemnity, statutory or otherwise. Article 14. Resolution of Disputes 14.1. The parties shall endeavor to resolve amicably any and all disputes arising out of or in connection with this Agreement and undertake to meet as soon as either party advises the other of the existence of a dispute. If the parties are unable to meet or to settle their dispute amicably, such dispute shall be referred to arbitration pursuant to 14.2 below. 14.2. If at any time during the continuance of this Agreement, there shall be any question or dispute with respect to the construction, meaning or effect hereof, or any provision hereof, or arising out of or in connection herewith, or concerning the rights or obligations hereunder, which cannot be resolved amicably, such question or dispute shall be referred to: (a) a sole arbitrator to be selected by the parties hereto; or (b) failing agreement in selecting such arbitrator within seven (7) days, to a panel of three arbitrators, one to be appointed by the COMPANY, one by DISTRIBUTOR and the third by the two arbitrators so chosen. The arbitration shall take place in _______, France and shall be conducted in the English language. 14.3. The award rendered by such sole arbitrator or a majority of the three arbitrators, as the case may be, shall be final and binding on the parties and judgment upon such award may be entered in any court having jurisdiction. Article 15. Miscellaneous Provisions 15.1. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided that DISTRIBUTOR may not assign its rights or obligations hereunder, except to any other members of DISTRIBUTOR’s group of companies, without the express prior written consent of the COMPANY. 15.2. The failure to insist in any instance on the strict performance of any provision of this Agreement or to exercise any right hereunder shall not constitute a waiver of such provision or right in any other instance. 15.3. Both the COMPANY and DISTRIBUTOR shall act as principals in all respects concerning this Agreement and neither of them shall hold itself out as the agent of the other. The COMPANY and DISTRIBUTOR shall keep the other party hereto free from all expenses and costs other than those as may be specifically authorized by the other in writing. 15.4. The applicable law shall be the express provisions of this Agreement and the intent of the parties as expressed herein, as may be supplemented, if necessary, by principles of French law. 15.5. No modification of this Agreement shall be effective unless in a writing signed by both parties hereto. 15.6. All notices, required or permitted to be given hereunder shall be in writing and shall be valid and sufficient if delivered in person against a receipt or sent by prepaid registered priority mail (return receipt requested) or via facsimile which shall be confirmed by such registered priority mail without undue delay, directed to the parties at the addresses set forth above or to such other address as a party may specify in a notice given in accordance with this Article. 15.7. If any provision hereof shall be unenforceable, the remaining provisions of this Agreement shall not be effected thereby and shall remain in full force and effect. 15.8. This Agreement, including the Schedules annexed hereto, contains the entire agreement of the parties and supersedes and terminates any prior agreements between the parties hereto relating to the subject matter hereof. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. COMPANY
DISTRIBUTOR By: __________________________________ US Cases to Brief Brown v. Board of Education, 347 U.S. 483 (1954) Decided May 17, 1954 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS [*] Syllabus Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496 . (a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education. Pp. 489-490 . (b) The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Pp. 492-493 . (c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. P. 493 . (d) Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal. Pp. 493-494 . (e) The "separate but equal" doctrine adopted in Plessy v. Ferguson, 163 U.S. 537 , has no place in the field of public education. P. 495 . (f) The cases are restored to the docket for further argument on specified questions relating to the forms of the decrees. Pp. 495-496 . Opinions WARREN, C.J., Opinion of the Court [p*486] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. [n1] [p*487] In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, [p*488] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 163 U.S. 537 . Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. [n2] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. [n3] [p*489] Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment's history with respect to segregated schools is the status of public education at that time. [n4] In the South, the movement toward free common schools, supported [p*490] by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education. In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. [n5] The doctrine of [p*491] "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. [n6] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education. [n7] In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. [n8] In more recent cases, all on the graduate school [p*492] level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 ; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629 ; McLaurin v. Oklahoma State Regents, 339 U.S. 637 . In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. [n9] Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout [p*493] the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. Directory: FACULTY FACULTY -> Dsci 3870: Management Science FACULTY -> Handling Indivisibilities FACULTY -> Course overview FACULTY -> Curriculum vitae wei chen professor FACULTY -> Digital image warping FACULTY -> Samples of Elements Exam Question III contains All Prior Exam Qs III except FACULTY -> 【Education&Working Experience】 FACULTY -> References Abe, M., A. Kitoh and T. Yasunari, 2003: An evolution of the Asian summer monsoon associated with mountain uplift —Simulation with the mri atmosphere-ocean coupled gcm. J. Meteor. Soc. Japan, 81 FACULTY -> Ralph R. 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