WHEREAS, Company is the provider of certain products, including the Scorch Marker (“Products”); and
WHEREAS, Reseller wishes to be appointed a reseller of some or all of the Products and Company is willing to make such appointment on the terms contained herein;
NOW, THEREFORE, Company and Reseller hereby agree, for and in consideration of the mutual covenants in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, as follows:
1. Definitions. The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.
1.1. “Documentation” means any user documentation, on any media, provided by Company for use with the product.
1.2. “End User” means any person or entity that purchases a Product or Products solely for its own internal use.
1.3. “Product” means Scorch Marker.
1.4. “Products” means more than Product (either several different types of Product or more than one of the same type of Product, or both).
1.5. “Territory” means any geographical area within or outside the United States which shall be non-exclusive to Reseller.
2. Appointment of Reseller.
2.1. Authorization and Appointment. Company hereby authorizes and appoints Reseller and Reseller accepts the appointment, as a non-exclusive reseller to purchase Products from Company and to market, sell, or incorporate for resale Company Products to End Users in the Territory.
2.2. Restrictions on Appointment. Reseller’s authorization from Company to resell Company Products is limited to the Territory. Additional sales locations must be pre-approved by Company. Reseller shall not sell products on the internet or through Amazon unless specific written permission is provided by Company. Each such request will be evaluated on a base by case basis.
3. Price and Payment.
3.1. Prices to Reseller. The price payable by Reseller for each Product shall be the applicable suggested list price of such Product, less the discount for such Product, at the time of order.
3.2. Resale Prices. Reseller will determine its own resale prices to End Users so long as those prices are in excess of the suggested retail price set by Company.
3.3. Revision of Prices. Company may, upon thirty (30) days prior written notice to Reseller, change the discount for any or all Products not yet ordered.
3.4. Payment. All orders payable hereunder shall be paid within fifteen (15) days of the date of invoice. Payment shall be made in via interbank transfer to Company’s account at a bank designated by Company.
3.5. Taxes. Reseller shall bear and be responsible for the payment of all taxes in the Territory associated with the purchase of any Product (other than taxes based on Company’ net income) fees, duties or other amounts, however designated, including value added and withholding taxes which are levied or based upon such charges, or upon this Agreement. Taxes related to Product, Documentation and support services purchased, licensed or provided pursuant to this Agreement shall be paid by Reseller or Reseller shall present an exemption certificate acceptable to the taxing authorities.
4.1. Purchase Orders. All orders for the Products submitted by Reseller shall be in writing and sent to Company at the address set forth above or as Company otherwise specifies (“Purchase Orders”). Purchase Orders shall contain the following:
(a) each item of Product ordered by model or part number,
(b) quantity requested;
(c) unit Price;
(d) payment arrangements;
(e) delivery date, a date after Company receives the Purchase Order upon which the order is to be delivered (“Specified Delivery Date”).
4.2. Acceptance. Company shall, within seven (7) business days of receipt of the Purchase Order from Reseller, communicate in writing (email being an acceptable form of writing) its acceptance or rejection of the said Purchase Order. Any orders not confirmed or rejected within the said seven (7) business day period shall be deemed to have been accepted.
5. Shipment and Delivery.
5.1. Delivery. Company shall deliver the Products in accordance to the instructions provided in the Purchase Order.
5.2. Cost of Delivery. Unless instructed otherwise in the Purchase Order, Reseller shall be responsible for all shipping cost upon delivery of Product, including import, export fee, packing, shipping, freight, and insurance charges.
5.3. Failure or Delay in Delivery. Company shall make commercially reasonable efforts to meet the estimated delivery date and or delivery date specified in the Purchase Order, but shall not be liable for failure to deliver or for any delay or effort in delivery of Product. In case Company cannot meet the estimated delivery date and or delivery date specified in the Purchase Order, Company shall promptly notify Reseller, and discuss in good faith on the appropriate delivery date.
5.4. Shipment. Company shall ship Product directly to Reseller, not to any End User unless specifically agreed between Company and Reseller, at Company’ expense and in accordance with shipping instructions provided in the Purchase Order. Unless otherwise specified on the Purchase Order, delivery shall be made to Reseller’s address specified on the first page of Agreement, or address mutually agreed between Company and Reseller.
5.5. Risk of Loss. Title, risk of loss, theft, and damage shall pass to Reseller upon delivery of Product to the address described in this section of the Agreement.
5.6. Defective Products. In the event that the Product is found to be defective (“Defective Product”) within ten (10) business days of acceptance of the Products, Reseller shall promptly notify Company through e-mail or fax of the existence of such Defective Product. Both Reseller and Company shall, in good faith, work to resolve the problem without sending the Defective Product back to Company. Should Company determine that the Defective Product holds a major defect which cannot be remedied without having such Defective Product shipped back to Company, Company shall issue a return material authorization to Reseller. Company shall immediately ship a replacement for the Defective Product and Reseller shall, upon notice of shipment by Company return the Defective Product.
6. Confidential Information. Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.
7. Ownership of Intellectual Property. Reseller hereby agrees and acknowledges that Company, its suppliers, partners and licensors (if any), own and shall retain all right, title and interest in and to (a) the manufacture and/or production of Product (including all copies and derivative works thereof, by whomever produced), and associated Product Documentation, including all intellectual property rights embodied therein; (b) all of the service marks, trademarks, trade names or any other designations, and (c) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Product, and Reseller shall have no rights with respect thereto other than the limited rights expressly set forth in this Agreement.
8. Trademark. Reseller may, whether in connection with its own trademarks, use the then current Product names, logos and other marks (“Marks”) on the Product and all marketing and promotional material therefore as authorized by Company for all proper purposes in the performance of Reseller’s duties hereunder. Reseller’s use of such Marks shall be in accordance with Company’ policies in effect from time to time, including, but not limited to, trademark usage and advertising policies. Reseller shall have no claim or right in such Marks and Reseller shall not make any claim or contest the use of any such Mark authorized by Company. Except as expressly authorized in writing by Company, Reseller shall not file or attempt to register any Mark or any mark confusingly similar thereto.
9. Term and Termination.
9.1. Term. This Agreement shall commence on the Effective Date and will remain in full force and effect for an initial term of one (1) year, unless earlier terminated under this Agreement.
9.2. Termination without Cause. Either party may terminate this Agreement without cause upon sixty (60) days prior written notice to the other party.
9.3. Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party if:
(a) the other party materially breaches any term of this Agreement and fails to cure such breach, which is a curable breach, within thirty (30) days after receipt of the non-breaching party’s written notice of such breach;
(b) the other party materially breaches any term of this Agreement which is not capable of cure;
(c) the other party dissolves, becomes insolvent or makes a general assignment for the benefit of its creditors;
(d) a voluntary or involuntary petition or proceeding is commenced by or against the other party under federal, state or foreign bankruptcy laws; or
(e) the other party becomes insolvent, is unable to pay its debts as they become due or ceases to conduct business in the normal course.
Termination of this Agreement under this Section will be without prejudice to any other remedy which may be available to a party under applicable law.
9.4. Effects of Termination. Upon any termination or expiration of this Agreement:
(a) Reseller shall cease to be an authorized reseller of Product and all rights and licenses granted to Reseller hereunder shall cease;
(b) Reseller shall immediately:
(i) cease all use and distribution of the Product;
(ii) discontinue any use of the Marks; and
(iii) cease to promote, solicit or procure orders for the Product.
9.5. Continuing Obligations. The termination of this Agreement shall not release Reseller from the obligation to pay any sum that Reseller may then owe to Company, or from the obligation to perform any other duty or to discharge any other liability incurred by Reseller prior thereto. The termination of this Agreement shall not release Company from the warranties in this Agreement.
10. General Provisions.
10.1. Notice. Any notices required or permitted shall be given to the appropriate Party at the address specified above, or at such other address as the Party shall specify in writing, and shall be effective upon actual receipt.
10.2. Assignment. The parties may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise without prior written consent of the party, which shall not be unreasonably withheld.
10.3. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
10.4. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
10.5. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
10.6. Interpretation. In construing or interpreting this Agreement, the word “or” shall not be construed as exclusive, and the word “including” shall not be limiting. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
10.7. Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.
10.8. No Waiver. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
10.9. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.
10.10. Jurisdiction. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of California.
10.11. Compliance of Law. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.
10.12. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.
10.13. Export and Import Controls. Each party shall be responsible for: (a) complying with all export restrictions, laws and regulations; (b) securing all permits and other licenses necessary to carry out its obligations under this Agreement; and (c) paying all tariffs, duties and the like, associated with its export of any goods or the use of any information in connection with the Products.
10.14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
10.15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
EVKM Technologies, LLC, a California Limited Liability Company dba Scorch Marker
By: Evan Van Auken, Manager