EXHIBIT 10.8
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of August
23, 2001, by and between SMARTGATE, L.C. ("SmartGate"), a Florida limited
liability company, with its principal place of business at 0000 Xxxxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx, X.X.X. 00000, and X.X. XXXXXXX & SON (FENCING)
LIMITED ("Xxxxxxx"), sometimes doing business as Jacksons Fine Fencing, a
United Kingdom private limited company, Company Number 910291, with its
principal place of business at Stowting Common, Nr. Xxxxxxx, Xxxx, England, U.K.
XX00 0XX, and its registered office at 4 and 6 Queen Street, Xxxxxxx, Xxxx,
England, U.K. XX00 0XX.
WHEREAS, SmartGate desires to appoint Xxxxxxx as its exclusive distributor
of the Products as defined hereinbelow in the Territory as defined hereinbelow
pursuant to the terms and conditions set forth in this Agreement; and
WHEREAS, Xxxxxxx desires to be appointed the exclusive distributor of the
Products as defined hereinbelow in the Territory as defined hereinbelow
pursuant to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
1. APPOINTMENT; TERRITORY; PRODUCTS.
(a) (i) Subject to all the terms and conditions of this Agreement,
SmartGate hereby appoints Xxxxxxx for the term of this Agreement as its
exclusive distributor of the Products (as "Products" is hereinafter defined)
only within the Territory as defined on Attachment A.
(ii) Xxxxxxx may distribute Products only to persons and entities
located and taking delivery within the Territory who Xxxxxxx has no reason to
believe will actively sell the Products outside the Territory, except it shall
be permissible for Xxxxxxx to export outside of the Territory (but not to the
U.S.A.) Products which are included as part of a complete Xxxxxxx turnkey
project and not a stand alone SmartGate system, provided such export remains in
compliance with Section 3(e) hereof.
(iii) Xxxxxxx covenants, represents, warrants, and agrees not to sell
any Products outside of the Territory or in circumvention of this Agreement,
and not to authorise others to sell outside of the Territory any of the
Products sold by SmartGate to Xxxxxxx. Both parties to this Agreement
acknowledge that, under present European Union law, it appears that Xxxxxxx
cannot be prohibited from responding to enquiries made from persons and
entities located outside the Territory as a result of its website or as a
result of its name or reputation and from selling Products in response to such
unsolicited enquiries (known in this Agreement as "passive selling"). It also
appears that Xxxxxxx cannot impose on anyone to whom Xxxxxxx sells or
distributes the Products any ban on passive selling to persons and entities
located outside the Territory. It is not the responsibility of Xxxxxxx to
restrain (by injunction or otherwise) any person or entity
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from breaching this clause since such breaches by third parties would not be
under the control of Xxxxxxx. To the extent that it is lawful, Xxxxxxx agrees to
notify SmartGate of passive selling enquiries received by Xxxxxxx from persons
and entities located outside the Territory and to voluntarily refer such
enquiries to the SmartGate's distributor for that area, if any, and if none then
to SmartGate itself.
(iv) Similarly, both parties to this Agreement acknowledge that it
appears that SmartGate's other distributors might not be able to be prohibited
from responding to enquiries made from persons and entities located within the
Territory as a result of their websites or as a result of their names or
reputations and from selling Products in response to such unsolicited enquiries
(also known in this Agreement as "passive selling"). It also appears that
SmartGate might not be able to impose on anyone to whom SmartGate sells or
distributes the Products any ban on passive selling to persons and entities
located within the Territory. To the extent that it is lawful, SmartGate agrees
to notify Xxxxxxx of passive selling enquiries received by SmartGate from
persons and entities located within the Territory and to voluntarily refer such
enquiries to Xxxxxxx. Passive selling within the Territory by SmartGate's other
distributors will be permitted and both parties acknowledge that it is not the
responsibility of SmartGate to restrain (by injunction or otherwise) any person
from breaching Xxxxxxx'x rights under this Agreement since such breaches by
third parties would not be under the control of SmartGate.
(v) "Product" shall mean a product set forth in Attachment A, together
with the packaging and documentation provided therewith by SmartGate. Any
update, enhancement or improvement of a Product that is made generally available
by SmartGate and that is substantially similar to such Product and that is
marketed under the same product number and nomenclature as such Product shall be
added to Attachment A as a new Product (the parties shall sign an Amended
Attachment A in such case). SmartGate reserves the right to change, modify or
discontinue any Product at any time. Discontinued items that are fundamentally
faulty will be accepted back for full credit during the term of this Agreement.
SmartGate may, at its option, add other products to Attachment A and may remove
any discontinued product therefrom (the parties shall sign an Amended Attachment
A in such case).
(vi) Xxxxxxx accepts this appointment on the terms and conditions set
forth in this Agreement. Xxxxxxx is not an agent of SmartGate and is not
authorized to legally bind SmartGate as a result of this subsection (also see
section 6 (Relationship of Parties)).
(b) Subject to all the terms and conditions of this Agreement, SmartGate
hereby appoints Xxxxxxx for the term of this Agreement as an authorized warranty
service provider for the Products. This appointment is ancillary to and
coincides with Xxxxxxx'x appointment as exclusive distributor of the Products
within the Territory. SmartGate may terminate this right at any time by giving
written notice to Xxxxxxx. Xxxxxxx accepts this appointment on the terms and
conditions set forth in this Agreement. Xxxxxxx agrees to comply with any
guidelines provided by SmartGate that are applicable to authorized warranty
service providers for the Products. Xxxxxxx is not authorized to repair any
Products; Xxxxxxx'x authority under this subsection is limited to replacing
defective Products pursuant to Subsection 5(b) (Standard Warranty and
Disclaimer) of this Agreement. Xxxxxxx is not an agent of SmartGate and is not
authorized to legally bind SmartGate as a result of this subsection (also see
section 6 (Relationship of Parties)).
(c) Throughout the term of this Agreement, SmartGate will promptly pass
along to Xxxxxxx all enquiries or interest it becomes aware of from any source
having to do with potential sales and customers in the Territory. SmartGate
agrees that it will not, during the lifetime of this Agreement, directly sell to
any
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customers located in the Territory; provided however, that it appears that
SmartGate cannot be prohibited from responding to enquiries made from persons
and entities located within the Territory as a result of SmartGate's website or
as a result of its name or reputation and from selling Products in response to
such unsolicited enquiries (known in this Agreement as "passive selling"). It
also appears that SmartGate might not be able to impose on anyone to whom it
sells or distributes the Products any ban on passive selling to persons and
entities located within the Territory. It is not the responsibility of SmartGate
to restrain (by injunction or otherwise) any person or entity from breaching
this clause since such breaches by third parties would not be under the control
of SmartGate. To the extent that it is lawful, SmartGate agrees to notify
Xxxxxxx of passive selling enquiries received by SmartGate from persons and
entities located inside the Territory and to voluntarily refer such enquiries to
Xxxxxxx.
2. PAYMENT, STOCKING REQUIREMENTS AND SUPPLY TERMS.
(a)(i) Products are delivered F.O.B. SmartGate's applicable warehouse or
place of production in the U.S.A., where SmartGate shall deliver the Products,
at Xxxxxxx'x expense, to a common carrier for final and certain movement of such
property to Xxxxxxx in the U.K. Sales are exempt from Florida sales tax pursuant
to Florida Administrative Code Rule 12A-1.064. The initial prices payable by
Xxxxxxx are those set forth on Attachment B. SmartGate shall have the right, in
its sole discretion, from time to time or at any time to change such prices with
sixty (60) days' written notice. New prices will apply to all orders placed
after such notice period. In addition, Xxxxxxx will pay all charges, including
without limitation transportation and shipping and handling charges and
insurance premiums and shall be responsible for all taxes, duties, licenses and
other governmental assessments, licenses, permits and requirements for export
and import of the Products. Xxxxxxx shall be responsible for exporting Products
from the U.S.A. and importing products into the Territory. Risk of loss is borne
by Xxxxxxx so all shipments will be insured for their total invoice amount. Any
value added tax (VAT) that may arise under U.K. law is not included in the
price, and SmartGate is not obligated or registered to collect VAT, so any
obligation with respect to VAT lies solely with Xxxxxxx, and Xxxxxxx agrees to
indemnify and defend SmartGate from any obligation with respect to VAT.
(ii) Xxxxxxx shall pay SmartGate for Products in U.S. dollars via wire
transfer to SmartGate's bank in the U.S.A. in accordance with the wire transfer
instructions in Attachment E. Payment of the total price of the Products
ordered, plus the entire cost of shipping, transportation, insurance and other
charges, shall be paid within sixty (60) days after the date SmartGate sends
Xxxxxxx an invoice for the Products. SmartGate shall send Xxxxxxx an invoice on
or after the date of shipment of the Products. Orders may be filled in one
shipment or multiple shipments, at SmartGate's election. Each shipment shall
appear on a separate invoice. Shipping, transportation, insurance and other
charges may be added by SmartGate to the invoice after shipment. Any invoice
that is not paid when due shall accrue interest at the rate of fifteen percent
(15%) per annum until paid.
(iii) It is SmartGate's policy to require payment in advance or payment
upon delivery. In consideration of SmartGate allowing Xxxxxxx to pay invoices
within sixty (60) days, Xxxxxxx will, at Xxxxxxx'x expense, provide to
SmartGate, prior to the first shipment of Products, an irrevocable standby
letter of credit in favor of SmartGate in the amount of Forty Thousand U.S.
Dollars ($40,000.00 U.S.) in form and substance satisfactory to SmartGate,
stating that it is issued subject to the International Standby Practices 1998
(ISP98), and covering payments that Xxxxxxx is required to make to SmartGate for
purchase of Products under this Agreement or otherwise (the "Letter of Credit").
SmartGate may require that the
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Letter of Credit be confirmed, at Xxxxxxx'x expense, by a bank in Florida.
Xxxxxxx shall, at its expense, maintain the Letter of Credit until the later of
(a) the date of expiration or termination of this Agreement or (b) the date
that all payments due SmartGate from Xxxxxxx have been received by SmartGate.
Xxxxxxx will, at Xxxxxxx'x expense, cause the amount of the Letter of Credit to
be increased from time to time so that it covers the total amount remaining
unpaid on invoices for Products at all times. SmartGate is not obligated to
ship a Product if the Letter of Credit is not in place or is not sufficient to
cover the total amount remaining unpaid on invoices for Products including the
invoice for the Product to be shipped. If Xxxxxxx fails to pay any invoice
within sixty (60) days after SmartGate sends it, then SmartGate will, in
addition to all other rights, including the right to stop shipment of other
orders, have the right to draw on the Letter of Credit to the extent of such
payment. If the Letter of Credit is drawn upon, Xxxxxxx shall, at its expense,
immediately cause it to be replenished so that it covers all payments Xxxxxxx
is required to make to SmartGate for purchase of Products under this Agreement
or otherwise. Xxxxxxx agrees and acknowledges that the amount of the Letter of
Credit in no way limits the liability of Xxxxxxx to SmartGate.
(b) The minimum initial stocking order, minimum inventory, and minimum
order requirements ("Minimums") that Xxxxxxx agrees to maintain during the term
of this Agreement are set forth on Attachment X. Xxxxxxx hereby irrevocably
places the minimum initial stocking order of one hundred (100) SG-0507 (Rev. H)
units, ten (10) each of all accessory kits, ten (10) each of insulator cable
assemblies specific to the brand of gates sold by the distributor, and ten (10)
each of installation and sales videos. The initial order also includes four
hundred (400) sets of dealer brochures provided at no charge. One-half of this
initial stocking order shall be shipped and invoiced first and the second half
of which shall be shipped and invoiced thirty (30) days thereafter in order to
allow Xxxxxxx time for marketing and sales efforts using the first half of the
order. No further order or instruction is necessary for this initial stocking
order to take effect. This initial order is effective upon this Agreement being
signed by both Xxxxxxx and SmartGate. SmartGate hereby accepts this initial
stocking order. Xxxxxxx is not required to maintain the minimum inventory set
forth on Attachment C until it receives a total of one hundred (100) units. In
order for Xxxxxxx to maintain its rights under this Agreement as exclusive
distributor, Xxxxxxx must continue after the initial stocking order to place
orders for Products at least as often and at least in the amounts set forth on
Attachment C, to maintain at least the minimum inventory set forth on Attachment
C, and to comply with all other provisions of Attachment C.
(c) During the term of this Agreement, subject to the other terms and
conditions of this Agreement, SmartGate shall use its reasonable commercial
efforts to fill promptly (by full or partial shipment) Xxxxxxx'x written orders
for Products, which are accepted by SmartGate at its main office, insofar as
practical and consistent with then-current SmartGate's lead-time schedule,
shipping schedule, access to supplies on acceptable terms and allocation of
available products and capacity among SmartGate customers. SmartGate's normal
lead-time requirement is approximately three to four (3 to 4) weeks; SmartGate
will use reasonable efforts to provide Xxxxxxx with notice on an ongoing basis
of SmartGate's then-current average lead-time.
(d) Xxxxxxx shall check each order of Products upon receipt and shall
report in writing to SmartGate no later than three (3) days after receipt of an
order or partial order any items that do not conform to the order.
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3. XXXXXXX COVENANTS AND REPRESENTATIONS.
Xxxxxxx covenants, represents, warrants, and agrees as follows:
(a) (i) To provide SmartGate with a monthly sales report showing the
number of units sold, the dates sold, the customers' names and contact persons,
the respective serial numbers of the units sold, and the number of parts kits
(whether or not said parts were manufactured by SmartGate or Xxxxxxx), and to
provide SmartGate with monthly non-binding good-faith forecasts of its
anticipated requirements and shipping dates for the three (3) month period
following each forecast; SmartGate agrees to keep the customers' names and
contact persons furnished by Xxxxxxx in strict confidence both during and
following the term of this Agreement and to not use it for any purpose other
than for warranty and repair service and tracking and support service both
during the following the term of this Agreement, unless Xxxxxxx otherwise
consents;
(ii) To use reasonable commercial efforts to support and maintain the
pre-existing relationship SmartGate has with Parking Equipment Services in the
Territory, and to honor the prices and terms SmartGate has established with
Parking Equipment Services, which are SmartGate's standard dealer wholesale
pricing and terms as currently set forth on Exhibit "1", for at least one (1)
year after the date of this Agreement;
(b) Not to (i) disassemble, decompile or otherwise reverse engineer any
of the Products or otherwise attempt to learn the structure or ideas underlying
the Products, (ii) rent, lease or otherwise provide temporary access to a
Product, (iii) copy or modify any of the Products, or (iv) allow others to do
any of the foregoing; and if Xxxxxxx learns of anyone doing the activities
described above, Xxxxxxx shall immediately notify SmartGate in writing of such
activity;
(c) (i) To use reasonable commercial efforts to successfully market
(including, without limitation, inclusion of the Products in Xxxxxxx'x
catalogs and other promotional materials), distribute and support (including
installation, training and other support) the Products on a continuing basis
and to comply with good business practices and all laws and regulations
relevant to this Agreement or the subject matter hereof;
(ii) In its distribution efforts, Xxxxxxx will only use the
then-current names used by SmartGate for the Products (but will not represent
or imply that Xxxxxxx is SmartGate or is a part of SmartGate), and no other
right to use any name or designation for the Products is granted by SmartGate
under this Agreement and Xxxxxxx shall not remove, alter, obliterate or deface
the name of the Products or their packaging, warranty or documentation in any
way;
(iii) All advertisements and promotional materials used by Xxxxxxx
shall be subject to prior written approval of SmartGate, which approval shall
not be unreasonably withheld, and once approval is received for use of an
advertisement or other promotional material the approval need not be renewed
for subsequent use unless the approval was expressly limited or unless the
advertisement or promotional item would obligate SmartGate to make a rebate or
otherwise incur a cost to SmartGate;
(d) (i) To keep SmartGate informed as to any problems encountered with
the Products and any resolutions arrived at for those problems, and to
communicate promptly to SmartGate any and all
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modifications, design changes or improvements of the Products suggested by any
customer, employee or agent of Xxxxxxx;
(ii) Xxxxxxx further agrees that SmartGate shall have and is hereby
assigned any and all right, title and interest in and to any suggested
modifications, design changes, and improvements of the Products, without the
payment of any consideration therefor either to Xxxxxxx, or its employees,
agents or customers; Xxxxxxx will also promptly notify SmartGate of any
infringement of any patents, trademarks, copyrights or other proprietary rights
relating to the Products of which Xxxxxxx becomes aware;
(e) To comply with the U.S. Foreign Corrupt Practices Act and all
applicable export laws, restrictions, and regulations of any United States or
foreign agency or authority and not to export or re-export, or allow the export
or re-export of any product, technology or information it obtains or learns
pursuant to this Agreement (or any direct product thereof) in violation of any
such laws, restrictions or regulations; Xxxxxxx shall obtain and bear all
expenses relating to any necessary licenses, permits and/or exemptions with
respect to the export from the U.S. and the import to the Territory of the
Products in compliance with all applicable laws and regulations prior to
shipping thereof by SmartGate;
(f) That neither this Agreement (or any term hereof) nor the performance
of or exercise of rights under this Agreement, is restricted by, contrary to, in
conflict with, ineffective under, requires registration or approval or tax
withholding under, or affects SmartGate's proprietary rights (or the duration
thereof) under, or will require any termination payment or compulsory licensing
under, any law or regulation of any organization, country, group of countries
or political or governmental entity located within or including all or a
portion of the Territory;
(g) To provide ongoing supervision of its personnel and the dealer and
installer network to assure compliance with the highest standards of ethics,
and to report immediately to SmartGate, in writing, any conduct in the
Territory which might adversely affect the image or reputation of SmartGate;
(h) To provide appropriate and effective sales, installation and
maintenance training and support for its personnel and the dealer and
installer network;
(i) That its personnel and the dealer and installer network will
provide a level of customer support, for all warranty and service claims, that
is up to the high SmartGate standard and that will assure the continuation and
growth of the SmartGate image and reputation;
(j) That its personnel and the dealer and installer network will
accurately and appropriately represent the characteristics of the Products, and
that it will prevent any misrepresentation by its personnel and the dealer and
installer network of the Products and their performance limitations or warranty;
(k) Not to make any statements or representations regarding any of the
Products, product performance or warranty not otherwise contained in materials
provided by SmartGate or approved in writing by SmartGate;
(l) Not to manufacture on its own or through a third party any of the
Products or any part thereof, including but not limited to components,
hardware, accessories, wiring harnesses, cables, packaging, or printed
materials manufactured or offered by SmartGate without SmartGate's express prior
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written permission; any such parts of Products manufactured by Xxxxxxx with
SmartGate's express prior written permission will be manufactured to SmartGate's
then current specifications, and Xxxxxxx will, at Xxxxxxx'x expense, provide
representative production samples to SmartGate upon SmartGate's request from
time to time, but requests shall not be made at a rate greater than is required
for generally accepted quality control procedures;
(m) Not to sell, promote or market any competitive product which is based
upon invisible field technology that does not utilize beam, lens or emitter;
provided however, that Xxxxxxx may sell, promote and market photocells and
in-ground inductive loops;
(n) To have and keep in good standing insurance policies for the following
coverage and limits of liability at all times during the term of this Agreement:
Employer Liability (Pound Sterling)10 Million; Public Liability (Pound
Sterling)5 Million; and Products Liability (Pound Sterling)5 Million;
(o) Xxxxxxx acknowledges that, in the course of performing its duties
under this Agreement, it might obtain information relating to the Products and
to SmartGate, which SmartGate deems is of a confidential and proprietary nature
including but not limited to the following, all of which the parties hereby
agree are trade secrets under Florida and U.K. law and all of which the parties
hereby define to be "Trade Secrets" that are owned solely by SmartGate:
know-how, inventions, discoveries, conceptions, knowledge, techniques,
processes, programs, schematics, plans, designs, algorithms, plans, ideas, data,
databases, hardware, software, customers and customer lists, suppliers and
supplier lists, distributors and distributor lists, financial information, and
sales and marketing plans; and all information that SmartGate provides to
Xxxxxxx and all information that Xxxxxxx obtains relating to the Products or
SmartGate shall be deemed and treated as trade secrets under Florida and U.K.
law unless SmartGate advises Xxxxxxx in writing that such information is not
confidential and proprietary; and Xxxxxxx and its employees and agents shall, at
all times, both during the term of this Agreement and after its termination or
expiration, keep in trust and confidence all such Trade Secrets, and shall not
use such Trade Secrets other than in the course of its duties as expressly
provided in this Agreement; nor shall Xxxxxxx or its employees or agents
disclose any such Trade Secrets to any person or entity without SmartGate's
prior written consent; and Xxxxxxx acknowledges that any such Trade Secrets
received by Xxxxxxx shall be received as a fiduciary of SmartGate;
(p)(i) Xxxxxxx acknowledges that SmartGate owns valuable property rights
in all of the marks, names, designs, patents, and Trade Secrets connected with
the Products (the "Intellectual Property") and that none of those rights are
being granted to Xxxxxxx, and Xxxxxxx will not represent or claim that it owns
any rights in the Intellectual Property; and all advertisements, promotional
material, quotations, invoices and other materials used by Xxxxxxx in
conjunction with the Products must use the trademark name given by SmartGate to
the Products (SmartGate grants Xxxxxxx a nonexclusive license limited to this
use of the trademark during the term of this Agreement) and must state that
Xxxxxxx is a distributor of the Products and that SmartGate owns the
Intellectual Property; for example, the following would be proper under this
Agreement: "SmartGate(R) Parking Gate Safety System exclusively distributed in
the UK and Ireland by Jacksons Fine Fencing"; and Xxxxxxx will not alter the
Products or Intellectual Property in any way, and all details, colors and
designs must remain exactly as provided by SmartGate and all labels, numbers and
names shall remain on the Products as provided by SmartGate; and Xxxxxxx shall
not duplicate or attempt to duplicate any of the Products or Intellectual
Property, will not make them available to anyone else for that purpose, and will
not make or sell any product that is confusingly or deceptively
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similar to the Products; and Xxxxxxx will not register or attempt to register a
trademark or any of the other Intellectual Property as its own or as anyone's
other than SmartGate, and will not contest or attempt to cancel SmartGate's
registration; and Xxxxxxx will not do anything that would invalidate or dilute
any SmartGate's rights in the Intellectual Property;
(ii) SmartGate shall indemnify and keep Xxxxxxx indemnified against
all liabilities, costs and expenses reasonably incurred by Xxxxxxx in respect
of claims made against Xxxxxxx and finally determined by a court of competent
jurisdiction on the grounds that the Products or any of them infringes the
intellectual property rights of any third party; and Xxxxxxx shall notify
SmartGate in writing immediately upon learning of any possible matter that may
invoke this provision so that SmartGate can, at its option, defend against it.
4. RETURNS.
(a) During the term of this Agreement, all unsold Product returns must be
approved in advance by SmartGate and will incur a twenty percent (20%)
restocking fee. All returned Products must be current model, in the original
unopened packaging, and must be received by SmartGate in resalable condition.
Xxxxxxx will pay all charges that may be involved with returns, including
without limitation, transportation charges and insurance premiums and shall be
responsible for all taxes, duties and other governmental assessments
("Charges").
(b) In the event SmartGate terminates this Agreement without cause, all
Products returned by Xxxxxxx shall be credited in full. All returned Products
must be current model, in the original unopened packaging, and must be received
by SmartGate in resalable condition. SmartGate will pay the Charges that may be
involved with the returns.
5. STANDARD WARRANTY AND DISCLAIMER.
(a) All sales to Xxxxxxx shall be subject to SmartGate's Standard
Warranty as contained in the Product's packaging in effect at the time of
shipment of each Product by SmartGate. The Standard Warranty in effect as of the
date of this Agreement is attached hereto as Attachment D, which is incorporated
herein by this reference as the Standard Warranty that is initially applicable
to Products sold by SmartGate to Xxxxxxx. The disclaimers contained in
Attachment D are also incorporated by this reference and are applicable to all
sales of Product by SmartGate to Xxxxxxx. Xxxxxxx shall not remove, deface or
alter the warranty or any other part of the packaging or documentation of the
Product in any way. Xxxxxxx is not authorized to extend or make any other
warranty that is binding on SmartGate. Xxxxxxx agrees to indemnify, defend and
hold SmartGate harmless from any claims, demands, liability, loss, expenses,
attorneys fees and costs if Xxxxxxx attempts to extend or make any warranty on
behalf of SmartGate other than SmartGate's Standard Warranty. It is agreed that
Xxxxxxx may on its own account give longer warranties or improve their terms
provided that it makes clear in writing that such extended or improved
warranties are solely the responsibility of Xxxxxxx.
(b) In order for Xxxxxxx to provide warranty service for Products as an
authorized warranty service provider, SmartGate shall initially give Xxxxxxx
ten (10) reconditioned Products which Xxxxxxx, acting as an authorized warranty
service provider, shall use as a pool of replacements for Products which are
returned to Xxxxxxx from end-user purchasers whose Products are entitled to
warranty service under the
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Standard Warranty, and in each such case Xxxxxxx shall send the end-user's name
and address to SmartGate along with the defective Product and the end-user's
proof of purchase. SmartGate shall, from time to time, provide Xxxxxxx
additional reconditioned units for this purpose upon SmartGate's receipt of
such defective Products at SmartGate's office in Florida USA, with shipping
paid by SmartGate. If SmartGate determines that a returned Product is not
covered by the warranty, then SmartGate is not obligated to give Xxxxxxx a
replacement reconditioned Product to replenish Xxxxxxx'x pool of reconditioned
Products for warranty service. At SmartGate's election, it may give Xxxxxxx new
Products instead of reconditioned Products for use in warranty service, but
SmartGate is not obligated to do so.
(c) As an authorized warranty service provider, Xxxxxxx may receive claims
for warranty service for Products sold to end-users by dealers and installers
who purchased the Products from Xxxxxxx or other distributors, and in any case
Xxxxxxx would not know whether the returned Product is covered by the warranty
because the warranty Registration Cards are returned to SmartGate. Therefore,
SmartGate will, upon Xxxxxxx'x request, fax Xxxxxxx a copy of the warranty
Registration Card for each Product that is returned to Xxxxxxx seeking warranty
service. Xxxxxxx agrees to keep the Registration Cards confidential and not to
disclose the end-user's names and other information on the Registration Cards
to anyone at any time during or after the term of this Agreement and not to use
the information for any purpose other than for warranty and repair service,
unless Xxxxxxx otherwise expressly consents in writing.
6. RELATIONSHIP OF PARTIES.
Xxxxxxx and SmartGate are not partners or joint ventures. Xxxxxxx is not an
agent of SmartGate. Xxxxxxx is a purchaser of Products from SmartGate. Xxxxxxx
has no right or authority to legally bind or obligate SmartGate and has no
authority to enter into binding contracts for SmartGate. The parties hereto
expressly understand and agree that Xxxxxxx is an independent contractor in the
performance of each and every part of this Agreement, is solely responsible for
all its employees and agents and its labor costs and expenses arising in
connection therewith and is responsible for and will rectify all problems at its
own expense in terms of any liabilities of any type whatsoever to its employees,
agents and customers that may arise on account of Xxxxxxx'x activities, or those
of its employees or agents including, without limitation, direct and indirect
subdistributors and dealers and installers. SmartGate is in no manner associated
with or otherwise connected with the actual performance of this Agreement on the
part of Xxxxxxx, nor with Xxxxxxx'x employment of other persons or incurring of
other expenses. Except as expressly provided in this Agreement, SmartGate shall
have no right to exercise any control whatsoever over the activities or
operations of Xxxxxxx.
7. ASSIGNMENT.
This Agreement and the rights hereunder are not transferable or assignable
without the prior written consent of the parties hereto, but shall inure to the
benefit of each party's lawful successor by merger unless this Agreement is
terminated in the manner provided below.
8. TERM AND TERMINATION.
(a) Unless terminated earlier as provided herein, this Agreement shall have
a term extending from the date of this Agreement to August 23, 2003.
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(b) This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events:
(i) If the other ceases to do business, or otherwise terminates its
business operations; or
(ii) If the other shall fail to promptly secure or renew any
license, registration, permit, authorization or approval for the conduct of its
business in the manner contemplated by this Agreement or if any such license,
registration, permit, authorization or approval is revoked or suspended and not
reinstated within thirty (30) days; or
(iii) If the other materially breaches any material provision of this
Agreement and fails to fully cure such breach within ten (10) days of written
notice describing the breach; or
(iv) If the other becomes insolvent or seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement, or comparable
proceeding, or if any such proceeding is instituted against the other (and not
dismissed within ninety (90) days).
(c) SmartGate may terminate this Agreement for cause upon written notice
if Xxxxxxx fails to continue after the initial stocking order to place orders
for Products at least as often and at least in the amounts set forth on
Attachment C, fails to maintain at least the minimum inventory set forth on
Attachment C, or fails to comply with all other provisions of Attachment C or
if SmartGate receives verified reports of ongoing installation or support
problems within the Territory.
(d) SmartGate may also terminate this Agreement for cause upon written
notice if SmartGate is required to call upon the standby letter of credit in
order to obtain payment of an invoice.
9. EFFECT OF TERMINATION.
(a) The provisions of the following Sections shall survive the
termination or expiration of this Agreement: Subsections a-(ii) and a-(iii) of
Section 2 to the extent of any unpaid invoices at the date of termination;
Section 3 (except for subsections a-(i) and a-(ii), c-(i) and c-(ii) and
c-(iii), d-(i), g, h, m and n); Section 4; Section 5; Section 6; Section 8;
Section 9; Section 10; Section 12; Section 13; and Section 14.
(b) Xxxxxxx understands that after this Agreement expires or terminates,
Xxxxxxx shall have no right to continue as exclusive distributor nor shall it
be entitled to any compensation in connection with such termination.
(c) Xxxxxxx understands that after the expiration or termination of this
Agreement, Xxxxxxx shall have no right to refer to itself as the exclusive
distributor or distributor of SmartGate Products in any of its advertisements or
promotional materials or elsewhere, nor shall it have any right to use any of
SmartGate's trademarks, names or designations.
(d) In the event of any termination or expiration of this Agreement,
SmartGate may elect to terminate any order then pending.
Page 10. Initials: /s/ XXX /s/ RHJ
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(e) In the event of termination, SmartGate will supply Products to allow
Xxxxxxx to fulfill its then existing contractual obligations, unless the
termination by SmartGate is because of ongoing installation and support
problems.
(f) In the event of termination, SmartGate (or its new exclusive
distributor or distributor) shall agree to supply Products to Xxxxxxx at
SmartGate's then published dealer pricing and payment terms for non-USA
accounts in order that Xxxxxxx will have the ability to service its customers
for a period of eighteen (18) months after termination as long as Xxxxxxx
maintains the standby letter of credit and makes timely payment for all
Products in the same manner as it is required to do under this Agreement but
this Agreement shall not apply.
10. OTHER REMEDIES.
(a) Termination is not the sole remedy under this Agreement for breach of
this Agreement by the other party, and, whether or not termination is effected,
all other remedies will remain available.
(b) If either party breaches this Agreement, the other party shall have
such rights and remedies as are provided at law and equity, including but not
limited to damages, temporary injunctions ex parte and without notice, permanent
injunctions and such other relief as the court deems just.
(c) If either party breaches this Agreement, the other party may give
(but is not required to give) the breaching party written notice specifying the
breach so that it can be cured as soon as possible.
(d) Due to the unique nature of the Products and the Trade Secrets and
Intellectual Property, there can be no adequate remedy at law for any breach of
Xxxxxxx'x obligations set forth in subsections b, c-(ii), c-(iii), d-(ii), e,
j, k, l, m, n, o, and p of Section 3 or in subsections a-(ii) or a-(iii) of
Section 1 of this Agreement, and any such breach may allow Xxxxxxx or third
parties to unfairly compete with SmartGate resulting in irreparable harm to
SmartGate. Therefore, upon any such breach or any threat thereof, SmartGate
shall, in addition to having the right to immediately terminate this Agreement
and in addition to all other applicable rights and remedies it may have, be
entitled to appropriate equitable relief including, but not limited to,
injunctions (including but not limited to injunctions ex parte and without
notice) and specific performance, in addition to whatever remedies it might
have at law, and to be indemnified by Xxxxxxx from any loss or harm, including,
without limitation, attorneys' fees, in connection with any breach or
enforcement of Xxxxxxx'x obligations as set forth in the above described
subsections of this Agreement. Xxxxxxx agrees that the cross undertaking as to
damages that SmartGate would be required to give in order to obtain injunctions
ex parte and without notice shall not exceed $1,000 US it being the agreement of
the parties that SmartGate is sole owner of the Trade Secrets and Intellectual
Property and that any damages to Xxxxxxx arising from issuance of the
injunctions would be nominal. This subsection is not intended to limit the
remedies of injunction and specific performance under this Agreement to just
those occurrences that fall under this subsection.
11. SMARTGATE COVENANTS AND REPRESENTATIONS.
SmartGate represents, warrants, and agrees:
Page 11. Initials: /s/ XXX /s/ RHJ
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(a) SmartGate will conduct training sessions twice per year at Xxxxxxx'x
central location ("Training Sessions"). Also, SmartGate will provide Xxxxxxx (as
they become available) with informational videos and other training materials
SmartGate develops. SmartGate shall pay the travel and lodging costs of its
personnel in connection with the Training Sessions and Xxxxxxx will provide the
training facility at its cost. The dates upon which the Training Sessions will
be held shall be as mutually agreed upon by the parties and will be planned
sixty (60) days in advance of each occurrence, except that the first training
session will be scheduled as soon as practicable after the signing of this
Agreement. During each of the two session visits per year, both a sales seminar
and a tech seminar and tech seminar will be held. The duration of each session
will be determined by such factors as the number of attendees, sales volume and
historical need.
(b) To have and keep in good standing products liability insurance
coverage with limits of liability of $4,000,000 US per occurrence, $4,000,000 US
aggregate during the term of this Agreement.
12. GENERAL.
(a) AMENDMENT AND WAIVER. Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of the parties. However, it is the intention of the parties that this
Agreement be controlling over additional or different terms of any order,
confirmation, invoice or similar document, even if accepted in writing by both
parties, and that waivers and amendments shall be effective only if made by
non-preprinted agreements clearly understood by both parties to be an amendment
or waiver.
(b) GOVERNING LAW; LAWSUITS; ATTORNEYS FEES.
(i) This Agreement shall be governed by and construed under the laws
of the jurisdiction (either England-UK or Florida-USA) in which the court sits,
without regard to conflicts of laws provisions thereof and without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
(ii) Unless waived by the defendant in writing for that particular
lawsuit, the sole jurisdiction and venue for legal, equitable and other lawsuits
brought by either party against the other party under or relating to this
Agreement shall be a court having subject matter jurisdiction in the defendant's
"Home". Sarasota County, Florida, U.S.A., is the Home for SmartGate; Kent,
England, U.K., is the Home for Xxxxxxx. Process shall be served in the manner
provided by law where the court sits (this subsection does not waive service of
process). Once a lawsuit is filed by either party against the other in the
defendant's Home, the defendant may, but is not required, to file such claims,
counterclaims and third party claims in that lawsuit as it chooses, and this
shall not prevent it from also filing them in a court sitting in the plaintiff's
Home.
(iii) If either party expressly waives in writing the foregoing
provision for jurisdiction and venue in its Home, then jurisdiction and venue
shall lie in such court or courts located in the United Kingdom and the United
States as have jurisdiction under its laws over the subject matter of the
lawsuit and over the persons before it, and process shall be served in such case
in the manner provided by its law (this subsection does not waive service of
process).
Page 12. Initials: /s/ XXX /s/ RHJ
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(iv) In any lawsuit arising under or related to this Agreement
(including but not limited to enforcing the right to payment and the Letter of
Credit), the prevailing party shall be entitled to recover its costs and
reasonable attorneys, solicitors and barristers fees for all matters relating
to the lawsuit, including but not limited to pre-trial, trial and post-trial
matters, appeals, arbitration, mediation, and bankruptcy and insolvency
proceedings. The term "lawsuit" includes, but is not limited to, all lawsuits,
actions, proceedings and other matters before a court or other judicial body.
(c) HEADINGS. Headings and captions are for convenience only and are not
a substantive part of this Agreement and are not to be used in the
interpretation of this Agreement.
(d) NOTICES. Notices under this Agreement shall be sufficient only if:
(i) personally delivered to and signed for by the recipient; or (ii) delivered
to the recipient by a major commercial rapid delivery courier service (such as
FedEx) and signed for by the recipient or its agent or employee.
(e) INCORPORATION BY REFERENCE. The Attachments and Exhibit to this
Agreement are incorporated into this Agreement by reference and are made an
integral part of this Agreement.
(f) FORCE MAJEURE.
(i) A party shall not be liable for nonperformance or delay in
performance (other than of obligations regarding payment of money or
confidentiality) caused by any event reasonably beyond the control of such party
including, but not limited to war, hostility, revolution, riot, civil
commotion, national emergency, strike, lockout, boycott, unavailability or
shortage of supplies or labor, blackout or brownout or other disruption of
power or communications, epidemic, fire, hurricane, tornado, flood, earthquake,
natural disaster, force of nature, explosion, embargo, or any other Act of God,
or any law, proclamation, regulation, ordinance, or other act or order of any
court, government or governmental agency.
(ii) If either party desires to invoke these force majeure provisions,
then it shall notify the other party in writing of the circumstances
constituting the force majeure and of the obligations the performance of which
is thereby delayed or prevented, and the party giving the notice shall thereupon
be excused from the performance or timely performance of such obligations for as
long as the force majeure circumstances continue. Until the party seeking relief
resumes performance, the other party may suspend its own performance of the
Agreement. Force majeure also relieves the party seeking relief from damages,
penalties and other contractual sanctions due to the nonperformance or delay
resulting from force majeure. Force majeure also extends the time for
performance of the party invoking it by an amount of time equal to the amount of
time that the force majeure circumstances continue. Notwithstanding the
foregoing, if either party is excused the performance of any obligation for a
continuous period of one hundred twenty (120) days under this subsection, then
either party may at any time thereafter, and provided that such performance or
punctual performance is still excused, by written notice to the other terminate
this Agreement. If the Agreement is so terminated, Xxxxxxx shall immediately pay
to SmartGate the entire remaining balance due on all invoices for Products sold
and shipped to Xxxxxxx.
(g) DRAFTSMAN. This Agreement shall be construed equally with reference
to both parties regardless of which party may have served as the draftsman.
Page 13. Initials: /s/ XXX /s/ RHJ
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(h) ENTIRE AGREEMENT; AUTHORITY. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes all proposals,
oral or written, all negotiations, conversations, or discussions between or
among the parties relating to the subject matter of this Agreement and all past
dealings or industry customs. The signatories hereto warrant that they are duly
authorized to sign this Agreement, and that this Agreement shall be binding
upon the parties.
13. SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
14. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH
PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.
IN WITNESS WHEREOF, this agreement has been executed as a deed by the
parties hereto as of the day and year first above written.
Executed as a deed by:
XXXXXXX
X.X. Xxxxxxx & Son (Fencing) Limited
a/k/a Jacksons Fine Fencing,
a United Kingdom private limited company,
Company Number 910291
Acting by
Director: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Director/Secretary: ILLEGIBLE
---------------------
Name: ILLEGIBLE
----------------------------------
SMARTGATE
SmartGate, L.C.,
a Florida limited liability company
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
As Its: President
---------------------------------
Page 14. Initials: /s/ XXX /s/ RHJ
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ATTACHMENT A
TERRITORY
The countries of: England, Scotland, Northern Ireland, Wales and Ireland.
PRODUCTS
SmartGate(R) safety systems for parking, gates and any future SmartGate(R)
safety products that are applicable to the fencing and gate industry.
End of Attachment A
Page 15. Initials: /s/ XXX /s/ RHJ
------- -------
ATTACHMENT B
INITIAL PRICE LIST
Xxxxxxx'x Initial Price:
- $286.74 U.S. per each SmartGate parking gate safety system unit #SG-0507
Rev H (Note: SmartGate's present published suggested retail price is $695.00
U.S.).
- Accessories (spare parts and kits) and sales and technical aids will be 30%
off the prices U.S. for such items as set forth on SmartGate's Dealer
Wholesale Pricing attached as Exhibit "1" hereto.
END OF ATTACHMENT B
Page 16. Initials: /s/ XXX /s/ RHJ
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ATTACHMENT C
MINIMUM INITIAL STOCKING ORDER,
MINIMUM INVENTORY AND
MINIMUM ORDER REQUIREMENTS
1. MINIMUM INITIAL STOCKING ORDER:
- One Hundred SG-0507 (Rev. H) units.
- Ten each of all specified Accessory kits.
- Ten each of Insulator Cable assemblies specific to the brand of gates sold
by the distributor.
- Ten each of Installation and Sales videos.
- 400 sets of Dealer Brochures (provided at no charge).
2. MINIMUM INVENTORY:
Xxxxxxx'x inventory of the Products will never be less than the following
amounts:
- Fifty (Rev. H) units.
- Five each of all specified Accessory kits.
- Five each of Insulator Cable assemblies specific to the brand of gates
sold by the distributor.
- Five each of Installation and Sales videos.
- 200 sets of Dealer Brochures (provided at no charge).
3. MINIMUM ORDER REQUIREMENTS:
A. During the first twelve (12) months of the term of this Agreement,
Xxxxxxx shall order at least two hundred (200) units of #SG-0507
Rev H.
B. During the second twelve (12) months of the term of this Agreement,
Xxxxxxx shall order at least three hundred (300) units of #SG-0507
Xxx X.
Xxxxxxx agrees not to order less than fifty (50) units of #SG-0507 Rev H in
an order without the prior written consent of SmartGate at any time during
the term of this Agreement.
4. MONTHLY SALES REPORT:
In accordance with Section 3, Subsection a-(i), Xxxxxxx shall provide
SmartGate with a monthly sales report showing the number of units sold, the
date sold, the respective serial numbers of the units sold, the customer's
name and contact person, and the number of parts kits sold (whether or not
said parts were manufactured by SmartGate or Xxxxxxx), and shall also
provide SmartGate with monthly non-binding good-faith forecasts of its
anticipated requirements and shipping dates for the three (3) month period
following each forecast.
END OF ATTACHMENT C
Page 17. Initials: /s/ XXX /s/ RHJ
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ATTACHMENT D
STANDARD WARRANTY
SMARTGATE(R) PARKING GATE SAFETY SYSTEM
SmartGate, L.C., a Florida (USA) limited liability company ("SmartGate"),
certifies to the first end-user purchaser that this SmartGate(R) parking gate
safety system ("Product") is free from defects in material and manufacture under
normal intended use as part of a parking gate for the longer of ninety (90) days
from its date of installation or one hundred twenty (120) days from its date of
purchase ("Warranty Period"). The first end-user purchaser may extend this
Warranty Period to end one (1) year after the date of the Product's purchase by
registering the Product with SmartGate by completely filling out the attached
Registration Card and returning it to SmartGate within ninety (90) days after
the later of the purchase date or installation date. Notwithstanding the
foregoing, the Warranty Period does not extend more than three (3) years after
the date of manufacture of the Product.
If this Product proves to SmartGate's satisfaction to be defective in
material or workmanship under normal intended use within the Warranty Period,
then SmartGate's entire liability shall be, at SmartGate's option, either (a)
repair of the Product, or (b) replacement of the Product with a new or
reconditioned Product, or (c) refund of the lesser of the Product's actual or
suggested retail purchase price. This warranty is the entire remedy of the
end-user purchaser and all prior purchasers of the Product.
This warranty is automatically voided by any of the following, in which
case SmartGate shall have no obligation or liability to anyone whatsoever:
alteration, modification, or disassembly of the Product; removal, alteration or
obliteration of the serial number or the Product name or model on the Product;
failure to follow an installation, maintenance, safety or other instruction;
intentional, negligent or other misuse, abuse or improper use; any use other
than as part of a parking gate; any use outside the recommended environment or
operating conditions; act of God; surge, fluctuation or other variation in
electric current or voltage; any defect in anything to which the Product is
attached; any other condition or occurrence beyond the reasonable control of
SmartGate.
THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
NEITHER SMARTGATE NOR ITS DISTRIBUTORS NOR ANYONE ELSE INVOLVED IN SALE,
DELIVERY OR INSTALLATION OF THIS PRODUCT SHALL BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE OR BUSINESS, DAMAGES FOR COST OF
REMOVAL, INSTALLATION OR REINSTALLATION, DAMAGES FOR PENALTIES, AND DAMAGES FOR
TORTS) IN ANY WAY RELATED TO THE PRODUCT.
There are no warranties that extend beyond the description on the face of
this warranty. The wording of this warranty cannot be waived, amended, modified,
changed or supplemented in any way whatsoever except by a written document that
expressly refers to this warranty and that is signed by an officer of SmartGate.
This product is not intended for home or consumer use.
This warranty and all other obligations of SmartGate with respect to the
Product are governed by the laws of Florida (USA) without regard to its conflict
of laws provisions.
This product is not intended for sale or use outside the country of sale or
use, as authorized in writing by SmartGate, and no warranties are made for such
sale or use.
The SmartGate(R) parking gate safety system is designed only to alert a
gate of an impending strike. The speed and shape of the sensed object, the
ability of the gate to stop and reverse after it has been alerted, and other
factors not within the control of SmartGate, may affect the perceived
performance of the SmartGate(R) parking gate safety system. Due to the
inevitable changes in operating environment, closure device operation, and other
unforeseeable factors, installation of this safety sensing system must be
accompanied by a comprehensive, ongoing, and strictly enforced inspection
program by the gate owner or operator to assure proper operation of the safety
sensing system and powered closure device both individually and as a system. If
upon inspection the powered closure device does not react with the enhanced
safety expected, it should be taken out of service until a properly trained
technician performs service or repairs. Regular inspection and maintenance will
help to maintain a high "operations with safety" to "total operations" ratio.
SmartGate, L.C. accepts no responsibility for ongoing inspection and maintenance
of its products.
All claims under this warranty must be made within ten (10) days after
discovery of the defect by telephoning, faxing or emailing SmartGate to obtain a
Return Material Authorization (RMA) number and the location of the nearest
authorized warranty service provider, then returning the Product with proof of
purchase to SmartGate or an authorized warranty service provider at sender's
expense within ten (10) days thereafter.
SMARTGATE, L.C. TECH SUPPORT 000-000-0000
0000 XXXXXXXXXXXX XXXXX SALES 000-000-0000
XXXXXXXX, XXXXXXX (XXX) 00000 FAX 000-000-0000
EMAIL: xxxxx@xxxxxxxxxxxx.xxx INTERNET: xxx.xxxxxxxxxxxx.xxx
Page 18. Initials: /s/ XXX /s/ RHJ
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-RETURN REGISTRATION CARD TO SMARTGATE FOR 1 YEAR WARRANTY-
REGISTRATION CARD
SMARTGATE(R) PARKING GATE SAFETY SYSTEM
Model No.:
Serial No.:
Purchase Date:
Installation Date:
End-User Purchaser Name:
Address:
City/State/Country/Zip-Postal Code:
Phone/Fax/Email:
Purchased From:
Company:
Address:
City/State/Country/Zip-Postal Code:
Phone/Fax/Email:
Installed By
Technician:
Company:
Address:
City/State/Country/Zip-Postal Code:
Phone/Fax/Email:
Installation Site Address:
City/State/Country/Zip-Postal Code:
Specific location of unit installed:
(example: if at the airport, where at the airport)
Registration must be completed within 90 days of installation or purchase.
Return this Registration Card to:
SmartGate, L.C.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx (XXX) 34234
Sales 000-000-0000
Tech Support 000-000-0000
Fax 000-000-0000
Email: xxxxx@xxxxxxxxxxxx.xxx
WARR.7-01.REV.-A
End of Attachment D
Page 19. Initials: /s/ XXX /s/ RHJ
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ATTACHMENT E
BANK WIRING INSTRUCTIONS FOR PAYMENTS TO SMARTGATE
Note: All payments must be in U.S. Dollars.
Receiving Bank:
Name: First Union National Bank
Address: Jacksonville, Florida, USA
Routing No.: 000000000
For credit to: SmartGate, L.C.
Account No. 2090002873120
End of Attachment E
Page 20. Initials: /s/ XXX /s/ RHJ
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EXHIBIT 1
SmartGate's Current Standard Dealer Wholesale Pricing and Terms
(Incorporated by reference into subsection 3(a)(ii) and Attachment B)
Page 21. Initials: /s/ XXX /s/ RHJ
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DEALER WHOLESALE PRICING (EFFECTIVE 8/10/01)
IMPORTANT ORDERING INFORMATION:
1. Each SG0507 contains all parts to fit a gate with a straight, non-metal arm
up to 13' in length. (longer lengths available)
2. Order a model "SG0507-H" if your gate has its own built in "Close" timer.
3. Order a model "SG0507-E" if your gate does not have its own built in "Close"
timer.
4. Metal Arm Gates...you must order an "Insulator Block" assembly, whether it
is a straight or folding arm. (see Insulators)
5. Folding Arm Gates...you must order an "Insulator Cable" assembly, whether it
is a metal or non-metal arm. (see Insulators)
6. Specify gate brand, model number, arm type, material and length to expedite
processing of your order.
WARRANTY - REGISTERED UNIT 1 YEAR UNREGISTERED 90 DAYS
(REGISTRATION CARD PROVIDED WITH EACH UNIT) LEAD TIME...
CALL FOR
CURRENT STATUS!
PARKING GATE NON-CONTACT SAFETY SYSTEM
---------------------------------------------------------------------------------------------------------
STOCK NO. DESCRIPTION 1-14 15-49 50+
---------------------------------------------------------------------------------------------------------
SG0507 SmartGate Parking Gate Safety System Model -H or -E 354.00 318.60 Call for Quote
SUGGESTED RETAIL $695 + DEALER INSTALLATION
INSULATORS (see notes 4 & 5 above)
-------------------------------------------------------------------------------------------------------
GATE BRAND INSULATOR BLOCK ASSEMBLIES INSULATOR CABLE ASSEMBLIES
Stock No. 22.00 each Stock No. 39.00 each
-------------------------------------------------------------------------------------------------------
Amano INS-AMN HDW-AMF
Bulwark U.S.A. or S.A. INS-BSU HDW-BSU
CAME INS-CAM HDW-CAM
DC Solutions INS-DCS **
DoorKing ** HDW-DKG
FAAC INS-FAAC INS-FAACL (long arm) HDW-FAAC
Federal APD (G89-90) ** HDW-FED
Federal APD (Posi-drive) INS-FED HDW-FEDP
Hy-Security INS-HYS INS-HYSL (long arm) HDW-HYS
Magnetic INS-MAG **
OSCO ** HDW-OSC
Traf-O-Data INS-TRA HDW-TRA
Sentex ** HDW-STX
WPS ** HDW-WPS
NOT LISTED? CALL US! WE HAVE PARTS FOR MANY OTHER POPULAR GATE BRANDS!
** Is not required or is not an available option for the specified brand of gate
ACCESSORIES (Spare Parts & Kits)
------------------------------------------------------------------------------------------------------------
STOCK NO. PRICE EACH DESCRIPTION
------------------------------------------------------------------------------------------------------------
AQK012 21.40 Quick Connect Antenna Kit - (complete antenna kit assembly)
QKMF12 11.70 Quick Connect Maintenance Pkg. - (partial antenna kit for maintenance
or repair)
UDLS01 9.00 Universal Down Limit Switch Kit - (lever switch & mounting bracket
hardware)
031-1001 8.50 Transformer, AC Direct Plug In - (24 VAC, Std. #3 Cord & Connector)
FACA06 38.00 Insulated Folding Arm Cable - (a subassembly of HDW insulator cable kits)
044-1010 3.70 SS Braided Rope - (a subassembly of HDW insulator cable kits... "include
folding arm brand name")
SALES & TECHNICAL AIDS
-------------------------------------------------------------------------------------------------------
DESCRIPTION PRICE EACH
-------------------------------------------------------------------------------------------------------
Sales Literature No Charge
Video - "Universal Installation and Technical Overview" 10.00
Video - "Selling the SmartGate Safety System for Parking Gates" 10.00
TERMS:
--------------------------------------------------------------------------------------------------------------
U.S. Dollars COD until account established RMA required for all
Non-US accounts subject to special terms Net 30, 2% 10, 5% Cash product repair and returns
Prices do not include shipping & handling Late charge 2% per month Subject to change without notice
SMARTGATE (R) USA Toll Free 000-000-0000
Non-Contact Safety for Gates & Doors 000-000-0000
------------------------------------- Facsimile 000-000-0000
The best safety sensing in the world! xxx.xxxxxxxxxxxx.xxx
xxxxx@xxxxxxxxxxxx.xxx
0000 Xxxxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Initials: /s/ XXX /s/ RHJ
AMENDMENT TO
DISTRIBUTION AGREEMENT
THIS AMENDMENT TO
DISTRIBUTION AGREEMENT (the "Amendment") is entered into
as of April 10th, 2002 by and between SMARTGATE, L.C. ("SmartGate"), a Florida
limited liability company, with its principal place of business at 0000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, X.X.X. 00000, and X.X. XXXXXXX & SON
(FENCING) LIMITED ("Xxxxxxx"), sometimes doing business as Jacksons Fine
Fencing, a United Kingdom private limited company, Company Number 910291, with
its principal place of business at Stowting Common, Nr. Xxxxxxx, Xxxx, England,
U.K. XX00 0XX, and its registered office at 4 and 6 Queen Street, Xxxxxxx, Xxxx,
England, U.K. XX00 0XX.
WHEREAS, SmartGate and Xxxxxxx entered into that certain
Distribution
Agreement dated August 23, 2001 ("Agreement"); and
WHEREAS, the parties wish to amend ATTACHMENT A of the Agreement to
include additional countries in the TERRITORY and add a condition to the
inclusion of the additional countries; and
WHEREAS, the parties also wish to amend Section 4 of ATTACHMENT C
entitled "MONTHLY SALES REPORT", and Section 3, Subsection (a)(i) of the
Agreement to provide for clarifications and additions in those sections in
light of the inclusion of the additional countries into the TERRITORY.
NOW, THEREFORE, in consideration of the mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree that the Agreement is amended as follows:
1. ATTACHMENT A of the Agreement under the Section entitled TERRITORY is
hereby amended to add the following countries: Albania, Andorra, Austria,
Belgium, Bosnia, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France,
Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Liechtenstein, Luxemburg,
Macedonia, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Portugal,
Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey,
Vatican, and Yugoslavia ("Additional Countries"), and to add the condition set
forth below to the inclusion of the Additional Countries to the TERRITORY.
Accordingly, the TERRITORY section of ATTACHMENT A shall read as follows:
"The countries of England, Scotland, Northern Ireland, Wales, Ireland,
Albania, Andorra, Austria, Belgium, Bosnia, Bulgaria, Croatia, Czech Republic,
Denmark, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy,
Liechtenstein, Luxemburg, Macedonia, Malta, Moldova, Monaco, Netherlands,
Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain,
Sweden, Switzerland, Turkey, Vatican, and Yugoslavia.
As a condition to the SmartGate's inclusion of the Additional Countries in
the TERRITORY, Xxxxxxx agrees that, from time to time, SmartGate may review and
evaluate any of the Additional Countries ("Review"), taking into consideration
the following factors: (i) Xxxxxxx'x business, marketing and financial
commitment to the identified country or countries, (ii) Xxxxxxx'x current and
projected market penetration in the identified country or countries, (iii)
Xxxxxxx'x sales programs for the identified country or countries; and (iv)
conditions related to the market within the identified country or countries for
SmartGate products. As part of the Review,
2
Xxxxxxx and SmartGate will discuss mutual goals and objectives regarding the
identified country or countries. Following the Review and the discussions
between the parties, SmartGate may, in the exercise of its discretion:
(a) Continue under the Agreement as amended;
(b) Delete from the TERRITORY those Additional Countries where it deems,
in its commercially reasonable and good faith judgment, that Xxxxxxx'x market
penetration and sales performance is not sufficient to warrant continued rights
under this Agreement as exclusive distributor. The parties further agree that
in the event SmartGate exercises its right and deletes any of the Additional
Countries, SmartGate shall also have the right to appoint an exclusive
distributor in the deleted country or countries as it deems appropriate; and
(c) Recommend increases in the MINIMUM INVENTORY under Section 2 of
ATTACHMENT C and the MINIMUM ORDER REQUIREMENTS under Section 3 of ATTACHMENT
C. In the event SmartGate recommends increases in the minimums and the parties
are not able, within thirty (30) days of such recommendation, to mutually agree
upon the increased minimums, SmartGate shall have the right, in its sole
discretion, to delete from the TERRITORY those Additional Countries it deems
appropriate for deletion, and SmartGate shall have the right to appoint an
exclusive distributor in the deleted countries as it deems appropriate."
2. Section 4 of ATTACHMENT C entitled "MONTHLY SALES REPORT" is hereby
amended by inserting the words "on a country-by-country basis of all the
countries within the TERRITORY" in the second line of the paragraph between the
words "showing" and "the". Accordingly, Paragraph 4 shall read as follows:
"In accordance with Section 3, Subsection a-(i), Xxxxxxx shall provide
SmartGate with a monthly sales report showing, on a country-by-country
basis of all the countries within the TERRITORY, the number of units sold,
the date sold, the respective serial numbers of the units sold, the
customers' name and contact person, and the number of parts kits sold
(whether or not said parts were manufactured by SmartGate or Xxxxxxx), and
shall also provide SmartGate with monthly non-binding good-faith forecasts
of its anticipated requirements and shipping dates for the three (3) month
period following each forecast."
3. Section 3, Subsection (a)(i) of the Agreement is hereby amended by
inserting the words "on a country-by-country basis of all the countries within
the Territory" in the first line of the paragraph between the words "showing"
and "the", and inserting the phrase "for production planning and the Review (as
described in the Amendment to Attachment A) during the term of this Agreement,
and" in the seventh line of the paragraph between the words "than" and "for".
Accordingly, Section 3, Subsection (a)(i) shall read as follows:
"(a)(i) To provide SmartGate with a monthly sales report showing, on a
country-by-country basis of all the countries within the Territory, the
number of units sold, the dates sold, the customers' names and contact
persons, the respective serial numbers of the units sold, and the number of
parts kits (whether or not said parts were manufactured by SmartGate or
Xxxxxxx), and to provide SmartGate with monthly non-binding good-faith
forecasts of its anticipated requirements and shipping dates for the three
(3) month period following each forecast; SmartGate agrees to keep the
customers' names and contact persons furnished by Xxxxxxx in strict
confidence both
3
during and following the term of this Agreement and to not use it for any
purpose other than for production planning and the Review (as described in
the Amendment to Attachment A) during the term of this Agreement, and for
warranty and repair service and tracking and support service both during
and following the term of this Agreement, unless Xxxxxxx otherwise
consents;"
IN WITNESS WHEREOF, this Amendment has been executed as a deed by the
parties hereto as of the day and year first above written.
Executed as a deed by:
XXXXXXX
X.X. Xxxxxxx & Son (Fencing) Limited
a/k/a Jacksons Fine Fencing,
a United Kingdom private limited company,
Company Number 910291
Acting by
Director: /s/ XXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------
Director/Secretary: /s/ XXXXX XXXXXX
----------------------
Name: Xxxxx Xxxxxx
------------------------------------
SMARTGATE
SmartGate, L.C.,
a Florida limited liability company
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
As Its: President
----------------------------------
SECOND AMENDMENT TO
DISTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO
DISTRIBUTION AGREEMENT (the "Second
Amendment") is entered into as of March 31, 2003 by and between SmartGate, L.C.
("SmartGate"), a Florida limited liability company, with its principal place of
business at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, X.X.X. 00000, and X.X.
Xxxxxxx & Son (Fencing) Limited ("Xxxxxxx"), sometimes doing business as
Jacksons Fine Fencing, a United Kingdom private limited company, Company Number
910291, with its principal place of business at Stowting Common, Nr. Xxxxxxx,
Xxxx, England, U.K. XX00 0XX, and its registered office at 4 and 6 Queen Street,
Xxxxxxx, Xxxx, England, U.K. XX00 0XX.
WHEREAS, SmartGate and Xxxxxxx entered into that certain
Distribution
Agreement dated August 23, 2001 ("Agreement"); and
WHEREAS, on April 10, 2002, the parties amended the Agreement to expand
the TERRITORY and to provide for certain other matters related thereto ("First
Amendment"); and
WHEREAS, the parties wish to further amend the Agreement to: extend its
term; add to Xxxxxxx'x exclusive distributorship in the TERRITORY SmartGate(R)'s
safety systems for application to commercial overhead doors a/k/a roller-shutter
doors; and update the Agreement with respect to various matters set forth
hereinbelow.
NOW, THEREFORE, in consideration of the mutual promises made herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, and the parties, intending to be legally bound,
hereby agree that the Agreement is amended as follows:
1. Subparagraph (a) of Section 8 of the Agreement entitled "Term and
Termination" is hereby amended to change the date at the end of the sentence
from August 23, 2003 to August 23, 2004.
2. Attachment A of the Agreement under the Section entitled "PRODUCTS"
is hereby amended by deleting the existing sentence in its entirety and
replacing it with the following:
"SmartGate(R) safety systems for application to parking gate, sliding
gate, swinging gate, commercial overhead doors a/k/a roller shutter
doors and any future SmartGate(R) safety products that are applicable
to these market areas."
3. Attachment B of the Agreement under Section entitled "INITIAL PRICE
LIST" is hereby amended by:
a. Eliminating bullet No. 1 in its entirety and replacing it with
the following:
"- $317 US per each SmartGate Unit consisting of SmartGate's
ISM & ISG combination unit or its equivalent ("ISM Pair"); and
b. Eliminating bullet No. 2 in its entirety and replacing it with
the following:
"- Accessories (spare parts and kits) and sales and technical
aids will be 30% off the prices U.S. for such items as set
forth on the then applicable SmartGate(R) Dealer Wholesale
Pricing List."
2
4. Attachment B of the Agreement under Section entitled "INITIAL PRICE
LIST" will be further amended by adding a third bullet to state as follows: "-
With regard to accessories and hardware for the ISM Pair, Xxxxxxx agrees that it
will be responsible, at its sole cost, for developing and producing the
necessary position sensing and antenna hardware ("Hardware") as may be required
for adapting the ISM Pairs for application to commercial overhead doors a/k/a
roller shutter doors for sale in the various markets and countries within the
TERRITORY and, at Xxxxxxx'x discretion and cost, for installation kits for
parking, sliding and swinging gates. SmartGate agrees that it will provide
Xxxxxxx with engineering and technical support in connection with Xxxxxxx'x
development of such Hardware, and will provide testing support where practical.
Xxxxxxx further agrees that any such Hardware it develops will be subject to
SmartGate's review and approval prior to their implementation and sale by
Xxxxxxx."
5. The parties acknowledge that the parking gate safety system Rev H
Units that were initially identified in Attachment B of the Agreement, have been
discontinued and currently are being replaced with the SmartGate(R) ISM Pairs
and applicable installation hardware and kits. In view of the discontinuation of
the H Units, Xxxxxxx acknowledges and agrees that SmartGate is retaining a
limited number of H Units for warranty stock, and that it will keep this limited
number of H Units available for up to one year following the date of signing
this Second Amendment. Xxxxxxx further agrees that in the event the warranty
stock H Units become unavailable, SmartGate shall have the right to replace the
H Units for warranty purposes with current equivalent product.
6. Attachment C of the Agreement is hereby amended as follows:
I. SECTION 1 entitled "Minimum Initial Stocking Order" is hereby
eliminated in its entirety and not replaced;
II. The provisions of Section 2 entitled "Minimum Inventory" are
hereby eliminated in their entirety and replaced with the
following:
"Xxxxxxx'x inventory of the Products will never be less than
the following amounts:
- 100 ISM Pairs;
- 10 each of applicable installation and hardware kits
(unless Xxxxxxx produced equivalents have been
approved by SmartGate(R));
- 10 each of Insulator Cable assemblies specific to the
brand of gates sold by the distributor (unless
Xxxxxxx produced equivalents have been approved by
SmartGate(R));
- 10 each of Installation and Sales videos;
- 200 sets of Dealer Brochures, provided at no charge
(unless Xxxxxxx produced equivalents have been
approved by SmartGate(R))";
III. The provisions of Section 3 entitled "Minimum Order
Requirements" are hereby eliminated in their entirety and
replaced with the following: "3. Minimum Order Requirements:
A. Between the signing of this Second Amendment and
August 23, 2003, Xxxxxxx agrees to order the balance
of the 300 Units (i.e. -
3
185 Units) it was required to order during the second
year of the Agreement as required pursuant to Section
3B of the original Attachment C. SmartGate and
Xxxxxxx acknowledge and agree that the balance of the
300 Units (i.e. - 185 Units) to be ordered will be
ISM Pairs as said ISM Pairs have replaced the Rev H.
Units.
B. SmartGate shall allow a six month period from the
signing of this Second Amendment for Xxxxxxx to
develop the Hardware for commercial overhead doors
a/k/a roller-shutter doors pursuant to Paragraph 4 of
this Second Amendment, after which Xxxxxxx shall
order, during the period from August 23, 2003 to
September 23, 2004, a minimum of 500 ISM Pairs.
Xxxxxxx agrees not to order less than fifty (50) ISM Pairs
in an order without prior written consent of SmartGate at any
time during the term of this Agreement."
IV Section 4 entitled "Monthly Sales Report" has been amended by
the provisions of the First Amendment and remains as amended
by the First Amendment.
7. SmartGate represents and warrants to Xxxxxxx that it has commenced
the process of obtaining CE Marking certification for the PRODUCTS where
required within the TERRITORY and that it will use its reasonable commercial
efforts to complete the CE Marking certification as soon as practicable
following the signing of this Second Amendment. Xxxxxxx agrees that it will
cooperate with SmartGate and its authorized representative in their efforts to
obtain the CE Marking certification for the PRODUCTS. SmartGate shall be
responsible, at its sole cost and expense, for all CE Marking certification
testing of the PRODUCTS. Xxxxxxx shall, at its sole cost and expense, maintain
the technical file as required by CE and shall provide SmartGate with a
duplicate copy of all materials in the technical file, and shall promptly
transmit to SmartGate, all changes and updates to the technical file, in order
that, at all times, SmartGate and Xxxxxxx have an identical technical file.
SmartGate will provide Xxxxxxx with all technical documents that may be required
by CE for the maintenance of any CE required technical files regarding the
PRODUCTS certified by CE. Xxxxxxx further agrees to immediately transmit to
SmartGate all documents which might require action on the part of SmartGate or
Xxxxxxx to achieve or maintain CE or country specific certifications necessary
to support and facilitate the sale of the PRODUCTS in the TERRITORY. Xxxxxxx
further agrees that once the CE Marking certification is obtained, that it, at
its sole cost and expense, will make adjustments to packaging, instructions, and
things of that nature as may be required by CE and the countries of the
TERRITORY so that the PRODUCTS remain in compliance with the CE Marking
requirements ("Required Adjustments"). Xxxxxxx further agrees that any such
Required Adjustments and any and all documents, packaging instructions and
things of that nature must be submitted to and approved by SmartGate before
release. Xxxxxxx further agrees that SmartGate will, at its sole discretion,
choose which regulatory certifications, in addition to CE, SmartGate will
attempt to achieve and maintain within the TERRITORY.
8. In view of the anticipated increase in orders which may be brought
about by this Second Amendment, Xxxxxxx agrees that the amount of the Letter of
Credit as set forth in
4
Paragraph 2(a)(iii) of the Agreement shall be increased from $40,000 US to a
minimum of $100,000 US prior to the shipment of any PRODUCTS following the
signing of this Second Amendment.
9. Attachment D to the Agreement entitled "Standard Warranty" is hereby
deleted in its entirety and replaced with the new Standard Warranty set forth in
Attachment D which is attached to this Second Amendment.
10. Attachment E to the Agreement entitled "Bank Wiring Instructions
for Payments to SmartGate" is hereby amended to reflect the current wire
instructions which are:
Receiving Bank:
Name: Wachovia Bank, N.A.
Address: Jacksonville, Florida, USA
Routing No.: 000000000
For credit to: SmartGate, L.C.
Account No. 2090002873120
11. Section 11(a) of the Agreement regarding SmartGate's obligation to
provide training sessions twice per year, is amended to reflect that one of the
two sessions (i.e. - the first session) shall be a mandatory obligation of
SmartGate, and the second training session ("Second Session") shall take place
only if Xxxxxxx requests that such session take place, and absent such request
by Xxxxxxx, SmartGate shall have no obligation to initiate or conduct the Second
Session.
IN WITNESS WHEREOF, this Second Amendment has been executed as a deed
by the parties hereto as of the day and year first above written.
Executed as a deed by:
XXXXXXX
X.X. Xxxxxxx & Son (Fencing) Limited
a/k/a Jacksons Fine Fencing,
a United Kingdom private limited company,
Company Number 910291
Acting by
Director: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Director/Secretary: /s/ Xxxx Xxxxxx
---------------------
Name: Xxxx Xxxxxx
-----------------------------------
SMARTGATE
SmartGate, L.C.,
a Florida limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
As Its: President
---------------------------------
