DISTRIBUTOR AGREEMENT

DISTRIBUTOR AGREEMENT

BETWEEN

___________________________________(“THE COMPANY”)

AND

___________________________________(“THE DISTRIBUTOR”)

__________________________________________________________________________________

THIS AGREEMENT is made on the …………..day of……….20……., by the Company and the Distributor (collectively referred to as the “Parties” or individually as the “Party”) and includes that Party’s successors and assigns.

In consideration of covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Parties agree to the following terms and conditions and to be bound thereby:

Definitions. The following terms shall have the meanings set forth below:

Commencement and duration: This agreement shall be valid from ____________until ______________.

Purchases and Sale of the Products. Company agrees to sell to Distributor and Distributor agrees to purchase from Company the Products subject to the terms and conditions herein. During the term of this Agreement, Distributor shall have the right to indicate to the public that it is an authorized Distributor of Company’s Products.

General Duties. Distributor shall use its best efforts to promote the Products and maximize the sale of the Products in the Territory. Distributor shall also provide reasonable assistance to Company in promotional activities of Company concerning the Products. Distributor shall also provide reasonable “after-sale” support to Product purchasers and generally perform such sales-related activities as are reasonable to promote the Products and the goodwill of the Company in the Territory. Distributor shall not have the authority to make any commitments whatsoever on behalf of Company.

Conflict of Interest. Distributor warrants to Company that it does not currently represent or promote any lines or products that compete with the Products. During the term of this Agreement, Distributor shall not represent, promote or otherwise try to sell within the Territory any lines or products that, in Company’s judgment, compete with the Products covered by this Agreement. Distributor shall provide Company with a list of the companies and products that it currently represents and shall notify Company in writing of any new companies and products at such time as its promotion of those new companies and products commence.

Product Warranty. Any warranty for the Products shall run directly from Distributor to the purchaser of theProducts. Pursuant to any such warranty, the purchaser shall contact Distributor directly to make arrangements for repair, return, or replacement of any allegedly defective Products. Distributor shall have sole authority to deal with customers regarding any such warrantable repairs, returns, or replacement. Upon receipt of any such warrantable products, Distributor shall separately contact Company to arrange for return or credit for these defective products. In no event shall Distributor make any representation, guarantee, or warranty concerning the Products except as expressly authorized by Company.

Product Availability. Company shall use its best efforts in filling orders submitted by Distributor in a reasonable and timely fashion. Company shall immediately notify Distributor of any known or anticipated delays in filling new or previously entered orders and the estimated duration of any delays so that Distributor may fairly represent this information to existing or potential customer.

Expense of Doing Business. Distributor shall bear the entire cost and expense of conducting its business in accordance with the terms of this Agreement.

Advising of Changes. Distributor shall promptly advise Company of any changes in Distributor’s status, organization, personnel, and similar matters; any changes in the key personnel, organization, and status of any major customers of Company in the Territory; and any political, financial, legislative, industrial, or other events in the Territory that could affect the mutual business interests of Distributor and Company, whether harmful or beneficial.

Books and Records. Distributor shall maintain and make available to Company accurate books, records, and accounts relating to the business of Distributor with respect to the Products.

New Developments. Company shall inform Distributor of any new product developments that are competitive with the Products and other market information and competitive information as discovered from time to time.

Limitation on Liability. In the event of termination by either Party in accordance with any provisions of this Agreement, neither Party shall be liable to the other, because of termination, for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investment, leases or commitments in connection with the business or goodwill of Company or Distributor. Company’s sole liability under the terms of this Agreement shall be for any unpaid commissions if applicable.

Export Law. Distributor acknowledges and agrees that the Products may be subject to export restrictions and controls. Distributor agrees and certifies that neither the Products nor any component thereof is being or will be acquired, shipped, transferred, exported, or re-exported, directly or indirectly, into any country prohibited by export restrictions and controls. Distributor bears all responsibility for export law compliance.

Indemnification. A Party shall indemnify the other Party from and against all claim, loss, and damage caused by them in connection with this Contract. In the event the claim, loss, or damage are caused jointly by the Parties, the claims, loss, or damage shall be borne by each Party in proportion to their degree of contribution to the claim, loss, or damage.

Independent Contractor. The relationship of the parties hereto is that of an independent Contractor. Accordingly, the Parties hereto are not deemed agents, partners, or joint venturers of the others for any purpose due to this Agreement or the transactions contemplated thereby. Distributor shall be responsible for paying all income taxes and other taxes charged to Distributor on amounts earned hereunder. All financial and other obligations associated with Distributor’s business are the sole responsibility of Distributor.

Non-assignment. Neither Party shall transfer or assign this Agreement without the other Party’s consent which consent shall not be unreasonably withheld or delayed.

Confidentiality. All non-public, confidential or proprietary information of a Party (Disclosing Party), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by the Disclosing Party in writing. Upon the Disclosing Party’s request, the other Party (Recipient Party) shall promptly return all documents and other confidential materials received from Disclosing Party. Disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Recipient Party at the time of disclosure, or (c) rightfully obtained by Recipient Party on a non-confidential basis from a third party.

Force Majeure. For this Agreement, “Force Majeure” means an event which a diligent party could not have reasonably avoided in the circumstances, which is beyond the control of a party and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.

A Party’s failure to fulfill its obligations due to Force Majeure, shall not be considered a breach of this Agreement, provided that the Party has taken all reasonable precautions, due care, reasonable alternative measures, and minimal delay all to carry out the terms of this Agreement.

Termination:

• Either Party may terminate this Agreement upon giving the other Party no less than ________days’ notice in writing. If a Party wishes to terminate the Contract with less than these stated days, the other Party reserves the right to charge costs that they have already paid in advance or incurred.
• The termination of this Agreement shall not discharge the liabilities accumulated by either Party.
• Any Clauses intended by the Parties or this Agreement to survive the termination of this Agreement shall survive the termination of this Agreement by whatever cause.

Dispute resolution. Parties agree to settle disputes under this Agreement through (select one)

☐Negotiation                                       ☐Mediation                                   ☐Arbitration                                      ☐Litigation

Court Costs and Attorneys’ Fees. In any action under this Agreement, the prevailing Party shall be entitled to recover costs of court and reasonable attorneys’ fees from the other Party, which fees shall be in addition to any other relief that may be awarded.

Parties acknowledgments. The Parties acknowledge that they have been provided with the opportunity to negotiate this Agreement and to seek legal counsel before signing this Agreement. In addition, they acknowledge that they have the capacity to contract and enter into this Agreement and that further, they have entered into this Agreement freely and voluntarily.

General provisions

• This Agreement may be amended only by the written consent of the Parties hereto.
• If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
• This Agreement constitutes the entire Agreement between the Parties. It supersedes all prior oral or written agreements or understandings between the Parties concerning the subject matter of this Agreement. The parties will exercise utmost good faith in this Agreement.
• Unless otherwise provided, failure by either Party to enforce any of the terms or conditions of this Agreement shall not be a waiver of their right to enforce the terms and conditions of this Agreement.
• This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall together constitute the same instrument.
• The Article and Section headings in this Agreement are for convenience, and they form in no part of this Agreement and shall not affect its interpretation.
• Whenever used herein, the singular number shall include the plural, and the plural number shall include the singular.
•  Any references herein to the masculine gender or to the masculine form of any noun, adjective, or possessive shall be construed to include the feminine or neuter gender and form, and vice versa.
• This agreement shall be governed in all respects by the laws of ________________________without regard to its conflict of law provisions.
• The Parties shall be served through the above-named addresses in writing and delivered in person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage prepaid, or delivered via telecopier or facsimile transmission, where applicable, and either Party may change the below addressees by reasonable notice in writing given to the other Party.

IN WITNESS WHEREOF, each of the Parties has executed this Agreement, as set forth below.