SQUIRES TURBO AUTHORIZED DISTRIBUTOR AGREEMENT
XXXXXXX TURBO AUTHORIZED
DISTRIBUTOR AGREEMENT
This
Agreement is by and between Xxxxxxx Turbo, Inc., a Utah corporation with a place
of business at 000 Xxxxx 0000 Xxxx Xxxxx X0, Xxxx, Xxxx 00000 ("Xxxxxxx”) and
the following “Distributor”:
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WHEREAS,
Xxxxxxx manufactures and sells remote mounted turbo systems and related
products; and
WHEREAS,
the term “Products” as used in this Agreement means all products manufactured by
Xxxxxxx now or in the future and distributed through its network of authorized
Distributors, and the Products as of the date of this Agreement are those
described in Schedule
A; and
WHEREAS,
Distributor desires to purchase Products from Xxxxxxx for resale from the
approved location described in Schedule B (the
"Approved Location").
In
consideration of the foregoing and the mutual promises set forth in this
Agreement, the parties agree as follows:
SECTION
1. APPOINTMENT
1.1 Authorized
Distributor. Xxxxxxx hereby appoints Distributor as its
nonexclusive Authorized Distributor of the Products at the Approved Location,
and Distributor hereby accepts the appointment. Xxxxxxx reserves the
right to sell the Products to other Distributors and to end users
anywhere. Distributor shall not sell Products and shall not provide
any services related to the Products except from the Approved
Location. Distributor acknowledges receipt of Xxxxxxx’x Authorized
Distributor Manual. As used in this Agreement, the term “Authorized
Distributor Manual” means Xxxxxxx’x service policies and procedures manual as
the same may be modified, amended, and updated from time to time in Xxxxxxx’x
sole discretion, including any service letters or notices that may be sent to
Xxxxxxx’x Authorized Distributors generally.
1.2 Nature of
Appointment. Distributor’s appointment as an Authorized
Distributor is based in part upon its existing ability to provide competent
service to users of Xxxxxxx’x products and other automotive
products. This Agreement contemplates a local service business only
and does not authorize Distributor to distribute the Products or to sell them
except as contemplated by the Authorized Distributor Manual. The
designation of Distributor as an Authorized Distributor does not contemplate
that Distributor’s business will be associated predominantly with Xxxxxxx
products or that Distributor will be restricted in any way from selling
non-Xxxxxxx products, nor does it contemplate that Distributor will be required
to adhere to any particular marketing plan or system. Distributor
acknowledges that it has not been required to pay any fee or premium for the use
of Xxxxxxx’x Trademarks. Distributor recognizes, however, that
Xxxxxxx will promote its products and its network of Authorized Distributors as
being of the highest quality and including a commitment to customer
service. Distributor expects to benefit substantially from Xxxxxxx’x
commitment to quality and customer service and from other Authorized
Distributors’ willingness to adhere to standards established by Xxxxxxx from
time to time. Accordingly, Distributor agrees to comply with all
provisions of the Authorized Distributor Manual, to refrain from selling the
Products through unauthorized channels, and to avoid practices that might
undermine Xxxxxxx’x ability to support its Authorized Distributors and maintain
a reputation for service and quality.
1.3 Term of
Appointment. The term of this Agreement and Distributor’s
appointment hereunder shall commence on the date hereof and shall continue for a
period of one (1) year.
1.4 Changes in Products,
Approved Location, or Customers. Xxxxxxx shall have the right
at any time and from time to time, in its sole discretion, (i) to change the
Products included within the scope of this Agreement by written notice to
Distributor at least thirty (30) days prior to the date such change becomes
effective, and (ii) to change the design, capabilities, or other characteristics
of any Product or discontinue the manufacture or marketing of any Product
without prior notice of any kind.
SECTION
2. DISTRIBUTOR’S
DUTIES
2.1 Sale of
Products. Distributor shall use its best efforts to vigorously
promote and sell the Products from the Approved Location.
2.2 Technical and Sales
Capabilities. Distributor acknowledges that the proper
marketing and support of the Products requires substantial expertise and
commitment. Distributor shall at all times during the term of this
Agreement, at its expense, maintain the ability (i) to provide competent
and adequate technical assistance, service, and support, (ii) to explain in
detail to its customers the features and capabilities of the Products, (iii) to
assist customers in determining which Products will best meet their particular
needs and desires, and (iv) otherwise to carry out its obligations under
this Agreement.
2.3 Inventory; Parts and
Accessories. Distributor shall maintain a sufficient inventory
of Products, replacement parts, and accessories to reasonably fulfill the
requirements of its customers. Replacement parts and accessories
shall meet such specifications as Xxxxxxx may establish from time to
time.
2.4 Marketing
Plan. Distributor shall be responsible for developing and
implementing its own marketing plan and system for distributing the
Products.
2.5 Marketing
Practices. Distributor shall at all times conduct its business
in a manner that reflects favorably on the Products and upon Xxxxxxx'x good
name, goodwill, and reputation. Distributor shall demonstrate and
otherwise represent the Products fairly in comparison with competitive products
and shall not make any false or misleading representations regarding the
Products or any representations regarding the Products that are inconsistent
with Xxxxxxx'x product literature or Xxxxxxx'x
warranties. Distributor shall not engage in any illegal, deceptive,
misleading, or unethical practices that may be detrimental to
Xxxxxxx.
2.6 Product
Literature. Distributor shall have the right to use and
distribute to customers such product literature and advertising material as
Xxxxxxx may provide from time to time in accordance with this
Agreement. In the event Distributor desires to use, in connection
with sales of the Products, any other literature, technical data, price lists,
promotional materials, or similar materials (including, for example, any
materials written in any language other than English), Distributor shall
prepare, such materials at its expense. All such materials shall be
submitted to Xxxxxxx for approval, and Distributor shall not use, in connection
with the sale of any Product, any materials that have not been prepared or
approved by Xxxxxxx.
2.7 Customer
Assistance. Distributor shall, at its expense, provide
assistance to its customers in connection with the use and maintenance of the
Products, including installation assistance, training in the operation of the
Products, repair services, and other similar assistance. Distributor
shall at all times maintain the ability to provide competent service, including
but not limited to any special tools that may be recommended by Xxxxxxx for the
safe and proper servicing of the Products.
2.8 Warranty
Service. Distributor shall offer and perform warranty service
on all Products in accordance with Xxxxxxx’x standard warranties covering the
Products as set out in the Authorized Distributor Manual.
2.9 Alteration of Products and
Packaging. Distributor shall not modify or alter any Product
without Xxxxxxx'x prior written consent or as specifically provided in the
Authorized Distributor Manual. Any unauthorized modification or
alteration by Distributor shall void the Xxxxxxx warranty, and Distributor shall
defend and indemnify Xxxxxxx from and against any claims or liabilities arising
out of or in connection with any Product that has been so modified or
altered. Distributor shall not remove, destroy, alter, or conceal any
symbol, label, or other marking appearing on any Product or its
container. Except with Xxxxxxx'x prior written consent, Distributor
shall sell all Products in their originally supplied
containers.
2.10 Reports;
Forecasts. As frequently as Xxxxxxx reasonably requests,
Distributor shall provide to Xxxxxxx written reports showing (i) Distributor's
current inventory levels of the Products, in the aggregate and by product, (ii)
forecasts of Distributor's anticipated orders by product, and (iii) any other
information regarding the Products and/or distribution of the Products that
Xxxxxxx reasonably requests. All expenses associated with such
written reports shall be borne by Distributor.
2.11 Notification. Distributor
shall report promptly to Xxxxxxx concerning any market information that comes to
Distributor's attention regarding Xxxxxxx or the Products, including without
limitation, information regarding Xxxxxxx'x market position and the
competitiveness of the Products in the marketplace. Distributor shall
report promptly to Xxxxxxx all claimed or suspected defects in the Products and
shall notify Xxxxxxx in writing of any claim or proceeding involving the
Products within ten days after Distributor learns of such claim or
proceeding.
2.12 Compliance with
Laws. Distributor shall conduct its business in compliance
with all applicable laws and regulations in any way related to the Products or
to the performance of Distributor's duties under this Agreement.
2.13 Authorized Distributor
Manual. Distributor shall comply in all respects with all of
the provisions of the Authorized Distributor Manual; provided, however, that if
there is any conflict between this Agreement and any provision of the Authorized
Distributor Manual, this Agreement shall govern.
SECTION
3. XXXXXXX’X
OBLIGATIONS
3.1 Product
Information. Xxxxxxx shall make available to Distributor such
technical information in the English language relating to the Products as it
makes available to Authorized Distributors generally.
3.2 Training. Xxxxxxx
shall make available to Distributor and its personnel all training that it makes
available to Authorized Distributors generally.
3.3 Additional
Assistance. In the event Xxxxxxx provides assistance to
Distributor related to servicing or other technical aspects of the Products or
related to the preparation of literature, technical materials, or promotional
materials, Distributor shall promptly reimburse Xxxxxxx for any out-of-pocket
expenses incurred by Xxxxxxx in connection with rendering such assistance,
including without limitation, all travel expenses, lodging, and
meals. Xxxxxxx may also charge reasonable hourly or per diem rates
for some or all of the services rendered under this provision, provided that
Xxxxxxx notifies Distributor, before the services are rendered, of the rates
that will apply to such services. Nothing in this Section shall be
construed to obligate Xxxxxxx to provide assistance of any kind to
Distributor. In the event Xxxxxxx agrees to provide assistance, such
assistance shall at all times be subject to the availability of Xxxxxxx'x
personnel.
SECTION
4. TERMS OF PURCHASE AND
SALE
4.1 Price and
Quantity. Xxxxxxx shall sell Products to Distributor at the
prices set out in Schedule
X. Xxxxxxx may change the prices from time to time in its sole
discretion; provided, however, that new prices shall not apply to any purchase
orders accepted by Xxxxxxx before Distributor receives notice of the
change.
4.2 Standard Terms and
Conditions. The terms and conditions of this Agreement and of
the applicable Xxxxxxx invoice or confirmation will apply to all sales of
Products by Xxxxxxx to Distributor under this Agreement. Terms in
Distributor's purchase orders and other printed forms shall not apply to any
order, notwithstanding Xxxxxxx'x acknowledgement or acceptance of such
order. In the event of any conflict between the terms of this
Agreement and any of Xxxxxxx'x standard forms, the terms of this Agreement shall
govern.
4.3 Terms of
Payment. Unless otherwise agreed by Xxxxxxx in writing,
payment in full is due prior to shipment. If credit terms are
offered, all invoices paid after the due date will be assessed a monthly late
payment charge of one and a half percent (1.5%), or the maximum amount allowed
by applicable law, whichever is less. This charge shall be assessed
with respect to each month or portion thereof between the due date and the date
of payment. Distributor shall be responsible for all costs of
collection, including reasonable legal fees. Credit terms are subject
to the approval of Xxxxxxx’x credit department and may be changed at any time in
Xxxxxxx’x sole discretion. If Xxxxxxx has reasonable grounds for
insecurity with respect to Distributor’s ability or willingness to make timely
payments for the products, Xxxxxxx may at any time suspend performance, decline
to ship, or require advance payment in cash or other adequate assurance
satisfactory to Xxxxxxx.
4.4 Warranty. Xxxxxxx
warrants to Distributor that the Products will be free from defects in material
and workmanship for a period of one year after the date of shipment, subject to
all terms of Xxxxxxx’x standard warranty programs. This warranty does
not apply to any product that has been disassembled, repaired, or otherwise
altered by any person without the authorization of Xxxxxxx, nor does it apply to
any product that has been misused, damaged, or improperly installed. Other terms
and conditions relating to the warranty shall be as set out in the Authorized
Distributor Manual.
4.5 Limitation of
Liability. Xxxxxxx’x responsibility with respect to the
Products and Xxxxxxx’x obligations related thereto shall in no event exceed the
purchase price of the Products. In no event shall Xxxxxxx be liable
for any special, incidental, or consequential damages, including without
limitation, lost profits and any damages, losses, or expenses arising from the
sale, handling, or use of the Products, whether arising from the performance or
nonperformance of this Agreement, negligence, strict liability, or any other
cause, even if Xxxxxxx is advised of the possibility of such losses or damages
or if such losses or damages could reasonably have been
foreseen.
4.6 Indemnification. Distributor
shall indemnify Xxxxxxx against, and hold Xxxxxxx harmless from, any and all
claims by third parties (including but not limited to, all damages, losses,
liabilities, expenses, costs, and attorneys' fees related to such claims)
resulting from Distributor's acts or omissions during the term of this Agreement
or thereafter.
SECTION
5. TRADEMARKS AND INTELLECTUAL
PROPERTY
5.1 Ownership of Intellectual
Property. Distributor acknowledges and agrees that Xxxxxxx has
and shall retain all right, title, and interest in and to all proprietary rights
to the Products, including but not limited to patents, trade secrets, and
copyrights.
5.2 Use of
Trademarks. Distributor shall use Xxxxxxx'x trademarks, trade
names, service marks, logos, and designations (all referred to in this Agreement
as "Trademarks") to refer to the Products in accordance with Xxxxxxx'x policies
as announced from time to time. Distributor shall not use the
Trademarks except as specifically provided in this
Agreement. Distributor shall not (i) dispute or deny the validity of
any of Xxxxxxx'x Trademarks, (ii) claim any right, title, or interest in or
to any such Trademarks (including, but not limited to any attempt to register
the same in any jurisdiction), or (iii) do anything that could adversely
affect Xxxxxxx'x rights in its Trademarks. Upon expiration or
termination of this Agreement, Distributor shall immediately cease all use of
Xxxxxxx'x Trademarks and shall not thereafter use any of them or any confusingly
similar trade names, trademarks, service marks, logos, or
designations.
5.3 Protection of
Trademarks. Distributor shall promptly notify Xxxxxxx of any
known or suspected infringement of Xxxxxxx'x Trademark rights and shall
cooperate without charge in Xxxxxxx'x efforts to protect such
rights.
5.4 Use of Confidential
Information. Xxxxxxx may furnish Confidential Information to
Distributor in connection with the execution and performance of this
Agreement. As used in this Agreement, the term "Confidential
Information" means (i) any and all information set out in the Authorized Service
Distributor Manual, (ii) all information provided to Distributor (or to which
Distributor may have access) while this Agreement is in force that is marked
"CONFIDENTIAL," "PROPRIETARY," or with words of similar import, and (iii) all
other information relating to Xxxxxxx, its business, or its products or services
that Distributor has reason to know are not available to the general
public. Distributor shall hold the Confidential Information in the
strictest confidence. Distributor shall not disclose the Confidential
Information to any third party and shall use the same solely for the purposes
contemplated by this Agreement. Distributor shall exercise at least
the same degree of care to protect Xxxxxxx’x Confidential Information as it uses
with respect to its own most sensitive information, but in no event less than
reasonable care. Notwithstanding the foregoing, Distributor shall not
have any obligation with respect to information that (i) is already known to
Distributor at the time the information is received from Xxxxxxx, as proven by
prior documents or records of Distributor; or (ii) is or becomes publicly known
through no wrongful act of Distributor; or (iii) is rightfully received by
Distributor, without restriction, from a third party who is not obligated to
keep the information confidential. If Distributor becomes legally
obligated to disclose Confidential Information pursuant to a court order or any
other legal process, Distributor shall make only such disclosure as is legally
required and only after affording Xxxxxxx notice and a reasonable opportunity to
seek appropriate protective orders.
5.5 Equitable
Remedies. Distributor acknowledges that Xxxxxxx will be
irreparably harmed by any breach by Distributor of its obligations under this
Section 5 and that no remedy at law will be sufficient to protect Xxxxxxx’x
interests in the event of such breach. Therefore, in addition to any other
remedies that Xxxxxxx may have, Xxxxxxx shall be entitled to an injunction
restraining any violation of this Section 5 or specific performance, if
applicable. Distributor hereby waives, with respect to any future
dispute related to this Section 5, any defense based on the argument that
Xxxxxxx will not be irreparably harmed by a breach of the terms of this Section
or that Xxxxxxx has available to it an adequate remedy at law.
5.6 Infringement
Claims. Xxxxxxx shall have the right and obligation to defend
any action brought against Distributor based on an allegation that any Product
infringes a United States patent, and Xxxxxxx shall pay all costs and damages
made in settlement or finally awarded as a result of any such action. If a final
injunction shall be obtained in any such action restraining the use of the
product by any customer of Distributor, or if Xxxxxxx believes that any Product
is likely to become the subject of a claim of infringement, Xxxxxxx shall, at
its option and at its expense, (i) procure for Distributor's customer the right
to continue using the product, (ii) replace or modify the product so that it
becomes noninfringing, or (iii) repurchase the product on a depreciated (five
year straight line) basis. Notwithstanding the foregoing, Xxxxxxx shall have no
obligation with respect to any action brought against Distributor based on an
allegation of patent infringement unless Xxxxxxx is promptly notified by
Distributor in writing of such action and is allowed complete control of the
defense of such action and all negotiations for its settlement or compromise.
This paragraph states Xxxxxxx’x entire liability with respect to infringement of
patents and other intellectual property rights
5.7 Obligations After
Termination. Upon Xxxxxxx’x request, and in any event upon
termination or expiration of this Agreement for any reason, Distributor shall
return to Xxxxxxx (or, with Xxxxxxx’x consent, destroy) all materials in its
possession or control that contain or represent Confidential Information,
including but not limited to documents, drawings, diagrams, flow charts,
computer programs, memoranda, notes, and every other medium. Upon
Xxxxxxx’x request, Distributor shall certify in writing that it has complied
fully with its obligations under this Section.
SECTION
6. TERMINATION AND
RENEWAL
6.1 Renewal Upon Expiration of
Term. This Agreement may be renewed by mutual agreement of the
parties following expiration of its term
6.2 Termination at Distributor's
Option. Distributor may terminate this Agreement at any time
without cause upon sixty (60) days’ prior written notice.
6.3 Termination at Xxxxxxx’x
Option. Xxxxxxx may terminate this Agreement immediately upon
the occurrence of any of the following:
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(a)
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Distributor
fails to make any payment due to Xxxxxxx in connection with this Agreement
and the failure is not fully cured within tent (10) days after notice from
Xxxxxxx.
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(b)
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Distributor
breaches any of its obligations relating to the Trademarks or Confidential
Information or any other intellectual property rights of
Xxxxxxx.
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(c)
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Distributor
breaches any of its other obligations under this Agreement and the breach
is not fully cured within thirty (30) days after notice from
Xxxxxxx.
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(d)
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Distributor
is merged or consolidated with any other entity or there is a substantial
change in the management or control of
Distributor.
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(e)
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Distributor
ceases to function as a going concern or ceases to conduct its operations
in the ordinary course of business, or makes an assignment for the benefit
of creditors, or a receiver is appointed for Distributor or its property,
or any proceedings are commenced by or against Distributor under any
bankruptcy, insolvency, or debtor’s relief
law.
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6.4 Suspension of Xxxxxxx'x
Obligations. Immediately upon the occurrence of any breach by
Distributor of any of its obligations under this Agreement or upon the
occurrence of any event or circumstance that would permit Xxxxxxx to terminate
this Agreement, all of Xxxxxxx'x obligations to ship Products shall be suspended
and such obligations shall remain suspended until the event or circumstance
giving rise to the suspension has been corrected to Xxxxxxx'x reasonable
satisfaction.
SECTION
7. POST-TERMINATION
OBLIGATIONS
7.1 Referrals by
Distributor. At all times following the expiration or
termination of this Agreement, Distributor shall refer to Xxxxxxx or Xxxxxxx'x
designee all inquiries and orders pertaining to the purchase of
Products.
7.2 Shipments Following Notice
of Termination. The expiration or termination of this
Agreement shall not relieve Xxxxxxx of its continuing obligation to ship
Products pursuant to any purchase orders accepted by Xxxxxxx prior to the notice
of termination, nor shall it relieve Distributor of its continuing obligation to
accept and pay for such Products; provided, however, that with respect to all
Products shipped after any notice of termination, Distributor shall make payment
prior to shipment by certified or cashier's check notwithstanding any credit
terms that may have been available to Distributor prior to such notice of
termination.
7.3
Acceleration of
Amounts Due. All outstanding invoices for the Products and all other
amounts owed to Xxxxxxx by Distributor shall be accelerated and shall fall due
and payable immediately upon the date of expiration or termination, even if
longer terms had been provided previously.
7.4 Liability Upon
Termination. Xxxxxxx shall have no liability to Distributor by
reason of the expiration or termination of this Agreement for compensation,
reimbursement, or damages of any kind, including without limitation any loss of
prospective profits on anticipated sales, loss of goodwill, or investments made
in reliance on this Agreement. Distributor acknowledges that it has
received no assurances from Xxxxxxx that its business relationship with Xxxxxxx
will continue beyond the term established in this Agreement, that it will obtain
any anticipated amount of profits in connection with this Agreement, or that it
will recoup its investment in the promotion of the Products. However,
these provisions apply only to damages that are attributable to the expiration
or termination of this Agreement and shall not affect any amount due under this
Agreement or the right of either party to seek damages directly attributable to
any breach.
SECTION
8. GENERAL
PROVISIONS
8.1 Notices. Without
precluding any other sufficient form of notice, all notices, demands, or other
communications under this Agreement shall be deemed sufficient if served
personally or sent by fax, overnight courier, or first class mail to the
respective addresses of the parties as set out in this Agreement and directed to
the attention of the individuals signing this Agreement on behalf of the parties
or to another address or individual specified by the party. All
notices, demands, and other communications shall be deemed given on the earlier
to occur of (i) actual receipt, or (ii) in the case of notice by fax or
overnight courier, the day after notice is sent, or (iii) in the case of notice
by U.S. mail, three (3) days after the notice is deposited in the U.S.
mail.
8.2 No Agency
Relationship. Nothing contained in this Agreement shall be
construed or interpreted as creating an agency, partnership, or joint venture
relationship between the parties. Distributor is not Xxxxxxx’x agent
for any purpose whatsoever and does not have the authority to make any agreement
or commitment for Xxxxxxx or to incur any liability or obligation on Xxxxxxx’x
behalf.
8.3 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to its subject matter, and it supersedes any and
all written or oral agreements previously existing between the parties with
respect to such subject matter.
8.4 Amendment and
Modification. No modification or amendment of this Agreement
shall be binding unless executed in writing by both parties. No
waiver shall be effective unless it is in writing and signed by the party
against whom enforcement is sought.
8.5 Assignment. This
Agreement may not be assigned by either party without the prior written consent
of the other.
8.6 Choice of
Law/Forum. This Agreement shall be governed by and construed
in accordance with Utah law, without regard to its rules regarding conflicts of
law. Each of the parties consents to the jurisdiction of the courts
located in the state of Utah with respect to all matters relating to this
Agreement and agrees that all litigation relating to this Agreement shall take
place in courts located in the state of Utah.
8.7 Successors and
Assigns. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective heirs, legal representatives, successors,
and permitted assigns of each of the parties.
8.8 Paragraph
Headings. The preliminary statement and the paragraph headings
in this Agreement are included for convenience only and shall not be deemed to
limit or otherwise affect the interpretation of any of its
provisions.
8.9 Severability. If
any of the provisions of this Agreement are held by a court or other tribunal
having jurisdiction to be unenforceable, the parties intend that the provision
shall be enforced to the maximum extent permissible and the remaining portions
of this Agreement shall remain in full force and effect.
IN
WITNESS OF THE FOREGOING, the parties have signed this Agreement on the dates
indicated below. This Agreement shall be deemed effective on the date
it is signed by Xxxxxxx.
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XXXXXXX
TURBO SYSTEMS, INC.
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DISTRIBUTOR:
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By:
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(Signature)
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(Signature)
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Name
(Print):
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Name
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Title:
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Title:
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Date:
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Date:
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