The manufacturer is engaged in the marketing and sale of the Products (as defined below and listed in Exhibit A). The Distributor is experienced in the promotion, distribution, sale, installation, and service of products similar to the Products. The parties therefore agree as follows:
1. PURPOSE, APPOINTMENT, AND EXCLUSIVITY
(A) Non-Exclusive Appointment. The Supplier hereby appoints the Distributor to distribute, offer for sale, and sell the Supplier's products listed in Exhibit A (the "Products"), on a non-exclusive basis, and the Distributor accepts this appointment. Nothing contained in this agreement limits the Supplier's right, in its sole discretion, to discontinue the manufacture, sale, or distribution of any Product at any time.
2. TERM AND TERMINATION
(A) Term. This agreement will become effective on the Effective Date and continue for an initial term of 1 year(s) (the "Term"). Unless either party gives written notice to the otherat least 30 days before the end of the Term, this agreement will be renewed automatically for an additional 1-year term. This automatic extension will continue to apply at the end of each extended period until the agreement is terminated.
(B) Termination. This agreement may be terminated:
•By either party, on provision of 30 days' written notice before the end of a Term;
•Automatically, if the Distributor is in breach of section 1 of this agreement;
• By either party for a material breach of any provision of this agreement (except for section 1) by the other party, if the other party's material breach is not cured within 30 days of receipt of written notice of the breach; or
• By the Supplier at any time and without prior notice, if the Distributor is convicted of any crime or offense, fails, or refuses to comply with the written policies or reasonable directives of the Supplier, or is guilty of serious misconduct in connection with performance under this agreement.
• By either party upon written notice to the other party in the event (i) the other party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other party and the petition is not dismissed within thirty (30) calendar days; (iii) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other party discontinues its business; or (v) a receiver is appointed for the other party or its business.
3. RESPONSIBILITIES
(A) The Distributor shall provide all of the usual and customary services of a distributor, including:
Compliance with the laws and regulations that govern its business;
Devotion of the time, energy, and skill necessary to distribute, promote the sale of, sell, install, and service the Products through all channels of distribution in the Territory in conformity with the Supplier's established marketing policies and programs;
Delivering the Products promptly to buyers and ensuring that the Products and their packaging arrive to the end user in their original, unmodified, unopened condition;
- Accurate representation and statement of the Supplier's policies to all potential and present customers;
- Prompt payment of all amounts owed to the
- Supplier in accordance with the Supplier's terms of sale;
Informing the Supplier if the Distributor intends to advertise the Products outside of North America or solicit sales from customers located outside of North America;
- Disclosure of any problems concerning customers (including Existing Customers) to the Supplier;
- Performance of such other sales-related services with respect to the customers as the Supplier may reasonably require;
- Furnishing the Supplier with financial statements in such form and at such time as the Supplier may reasonably require;
- Full disclosure of all circumstances that currently exist or that could arise during the Term that could be (or could cause) a conflict of interest between the respective interests of the parties;
- Assist Supplier in dissemination of technical and marketing information and any work related to product recalls.
(B) The Supplier shall provide all of the usual and customary services of a supplier, including:
1.Comply with the laws and regulations that govern its business;
2.Prepare samples for potential customers, as reasonably requested by the Distributor, if the Distributor gives the Supplier adequate notice of this request;
3.Carry reasonable amounts of insurance, whether through self-insurance or otherwise, to cover its responsibilities with respect to indemnification under section 11below. The Distributor may examine the Supplier's insurance policies on request;
4.Answer any questions the Distributor may have about the Products;
5.Provide the Distributor with merchandising assistance in the form of advertising programs, promotions, manuals, product and sales training, and sales promotions; and
6.Cooperate with the Distributor in providing advertising and promotion of the Products through the Territory.
4. PRICE
(A) The Distributor shall pay the Supplier a per unit price as set forth in Exhibit A on the payment terms listed below. Prices are subject to change on 30 days' written notice fromthe Supplier.
I.NET30 from the invoice date;
II.Delinquent invoices will accrue a 1% per month penalty after the invoice due date;
III.All payments are to be made by electronic funds transfer or check mailed to the Supplier’s mailing address.
(B) All prices are FOB the Supplier's shipping point and are exclusive of applicable sales, use, or other taxes, import and export fees, duties, or tariffs, and any other taxes, duties, or fees of any kind that may be levied in connection with the transactions covered hereby. The Distributor shall pay for these charges. However, the Supplier is responsible for alltaxes based on its net income.
5. PRODUCT WARRANTY
The Supplier makes no warranty or representation about the Products, except those, if any, made under its standard warranty. The Supplier may amend this warranty from time to time, and the Distributor shall not in any manner make any representations intended to alter or amend that warranty. The rights and obligations of each of the parties withrespect to the warranty are as follows:
(A) The Distributor shall deliver a copy of the applicable warranty to every buyer of the Products from the Distributor, pursuant to written instructions from the Supplier.
(B) For all warranty claims, the Distributor, at its own expense, shall return the defective product at the instruction of the Supplier for inspection and warranty determination. If after inspection by the Supplier the Product is deemed defective in material or workmanship, the Supplier, at its own expense, shall furnish the Distributor with a replacement.
(C) If a customer makes a claim under a warranty other than the latest applicable warranty with respect to which the Supplier has notified the Distributor, the Distributor shall promptly refer such claim to the Supplier before taking any other action on that claim.
6. PRODUCT RECALLS
If the Supplier recalls any Products sold by the Distributor in the Territory, the Distributor shall provide reasonable assistance to the Supplier with executing such recall. The Supplieragrees to give prompt notice to the Distributor if the Supplier recalls any Product or ceases or suspends the sale of any Product due to any problem that relates to such Product's efficacy or safety. The Supplier shall reimburse the Distributor for reasonable expenses incurred by the Distributor at its request to affect a recall. To assist the Supplier in theevent of a recall, the Distributor shall maintain a complete and current listing of the locations of all Products in the Distributor's inventory, and the names of customers who havepurchased the Products from the Distributor. The Supplier shall maintain a complete and current listing of the locations of all Products in the Supplier's inventory, and the namesof customers who have received shipments from the Supplier, together with the reorder numbers, lot numbers, or other identifying characteristics of Products purchased and thedate of such purchase.
7. NO CONFLICT OF INTEREST
Nothing in this agreement prohibits the Distributor from distributing products similar to or in competition with the Products.
8. NATURE OF RELATIONSHIP
The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance ofsuch authority.
9. SUPPLIER REPRESENTATIONS
The Supplier hereby represents that the Product:
(A) Is and shall be manufactured in conformity with all applicable laws, rules, regulations, and orders of governmental entities relating to the manufacture, promotion, sale, or distribution of the Product; and
(B) Does not violate or infringe any patent, trademark, trade name, or other interest of any person or entity.
10. RETURN OF PROPERTY
Within 15 days of the termination of this agreement, whether by expiration or otherwise, the Distributor agrees to return to the Supplier all Products, samples, or models, and alldocuments, retaining no copies or notes, relating to the Supplier's business including, but not limited to, reports, abstracts, lists, correspondence, information, computer files,computer disks, and all other materials and all copies of such material, obtained by the Distributor during and in connection with its representation of the Supplier. All files, records,documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the Supplier's business, whetherprepared by the Distributor or otherwise coming into its possession, shall remain the Supplier's exclusive property.
11. INDEMNIFICATION
(A) Of Supplier by Distributor. At all times after the effective date of this agreement, the Distributor shall indemnify the Supplier against any award, charge, claim, compensatorydamages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or anyattorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
1.The Distributor's gross negligence or willful misconduct arising from the Distributor's carrying out of its obligations under this agreement;
2.The Distributor's breach of any of its obligations or representations under this agreement.
(B) Of Distributor by Supplier. The Supplier shall at all times indemnify the Distributor against a Loss or Litigation Expense arising out of:
1.The Supplier's gross negligence or willful misconduct arising from the Supplier's carrying out of its obligations under this agreement;
2.The Supplier's breach of any of its obligations or representations under this agreement;
3.Defects in the Products caused by the Supplier; or
4.The failure of the Supplier to provide any Products to a customer that was properly ordered through the Distributor.
12. USE OF TRADEMARKS
(A) Use by Distributor. The Supplier hereby grants to the Distributor a nonexclusive license for the duration of the Term, with the right to grant sublicenses to sub-distributors, of all service marks, trademarks, and trade names used by the Supplier on or for the Products (collectively the "Product Trademarks") for the sole purpose of distributing, offeringfor sale, and selling the products to approved customers in the Territory.
(B) Retention of Rights. The Distributor recognizes the Supplier's interest in the Product Trademarks and shall not engage in activities or commit acts, directly or indirectly, thatmay contest, dispute, or otherwise impair the Supplier's interest in them, nor shall the Distributor cause diminishment of value of the Product Trademarks through any act orrepresentation. The Distributor shall not apply for, acquire, or claim any right, title, or interest in or to any such Product Trademarks, or others that may be confusingly similar toany of them, through advertising or otherwise. Effective as of the termination of this agreement, the Distributor shall stop using the Product Trademarks.
CONFIDENTIAL INFORMATION
During the Term, the Distributor shall hold in strictest confidence and not use, except for the benefit of the Supplier or as required by law, or to disclose to any person, firm, orcorporation without the prior written authorization of the Supplier, any Confidential Information of the Supplier. "Confidential Information" means any of the Supplier's proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Distributor by the Supplier, either directly or indirectly. The Distributor may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Supplier personnel or authorized representatives or for any other purpose Supplier may authorize in writing.
14. GOVERNING LAW
(A) Choice of Law. The laws of the state of Wisconsin govern this agreement (without giving effect to its conflicts of law principles).
(B) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Rock County, Wisconsin.
(C) Attorneys' Fees. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for itsreasonable attorneys' fees.
15. AMENDMENTS
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
16. ASSIGNMENT AND DELEGATION
(A) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rightsare limited by this subsection.
(B) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
(C) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
17. COUNTERPARTS; ELECTRONIC SIGNATURES
(A) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
(B) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
18. SEVERABILITY
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, orunenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never beencontained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to
be unreasonable.
19. WAIVER
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signedby the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy,whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
20. ENTIRE AGREEMENT
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement.All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
21. HEADINGS
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
22. EFFECTIVENESS
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement. Each party is signing this agreement on the date stated by the party's signature.
