OEM AGREEMENT
This non-exclusive OEM Agreement is made as of by and between located at
("OEM"), and FIELDWORKS, INCORPORATED, located at 0000 Xxxxxx Xxxx Xx., Xxxx
Xxxxxxx, XX 00000 ("FieldWorks").
OEM desires to sell certain products manufactured and sold by FieldWorks
and FieldWorks desires to have OEM act as its non-exclusive OEM in the sale of
such products. In consideration of these promises and the covenants contained
in this Agreement, the parties agree as follows.
1. Appointment of OEM
1.1 FieldWorks hereby appoints OEM as a non-exclusive OEM for FieldWorks'
products set forth on Exhibit A (the "Products") as FieldWorks may amend from
time to time upon notice to OEM. OEM shall be entitled to sell the Products
only in the territory and/or markets defined in Exhibit B.
1.2 OEM agrees to use its best efforts to promote, sell, support and
maintain the Products as provided in this Agreement and agrees to abide by all
reasonable rules and regulations FieldWorks establishes for its OEM from time to
time. OEM shall sell the Products only as bundled with additional application
software or system hardware.
2. Ordering, Delivery, Prices and Payments
2.1 OEM shall purchase such number of Products to meet the annual minimum
quota set forth in Exhibit C. The failure to meet such annual minimum quota
shall be a material breach of this Agreement.
2.2 OEM shall purchase the Products on the annual ship schedule set forth
as Exhibit C. Any change to the annual ship schedule shall be subject to the
prior written approval of FieldWorks. OEM shall be entitled to use its standard
form of purchase order for such orders; however, any terms in addition or
contrary to the terms of this Agreement shall not apply. All orders shall be in
minimum lot sizes of five (5) units.
2.3 The prices to be paid by OEM for Products purchased under this
Agreement shall be the prices established by FieldWorks defined in Exhibit D.
The prices are to be determined by the annual minimum quota outlined in Exhibit
C. FieldWorks may increase prices at any time by providing OEM with at least
(30) days prior written notice.
2.4 All deliveries of Products shall be FOB FieldWorks' facilities by a
carrier of FieldWorks' choice, unless otherwise agreed in writing by FieldWorks
and OEM. Title to the Products and risk of loss shall pass to OEM upon delivery
to such carrier. FieldWorks shall not be responsible for any delay in shipping
the Products.
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
3. Marketing and Business Obligations
3.1 OEM shall provide all after sales support for its customers for any
Products or repairs that are not covered by FieldWorks' warranty. OEM shall
maintain a sufficient staff trained to support and maintain the Products.
3.2 OEM shall communicate regularly with FieldWorks regarding its sales
and marketing activities relating to the Products, including providing, on a
monthly basis or as requested by FieldWorks, inventory and sales status, and the
name, address, and phone number of all sales to customers along with the
corresponding serial number, model number and date of unit purchase. OEM shall
assist FieldWorks in tracing and locating Products upon request. To facilitate
communications, OEM shall maintain at its facilities an industry-standard
facsimile unit.
3.3 OEM shall perform its obligations under this Agreement in compliance
with all applicable laws. OEM shall not conduct sales or marketing activity
outside the territory/market defined in Exhibit B and nor make any
representation or warranty relating to any Product or to FieldWorks, except as
authorized by FieldWorks. OEM shall not export the Products (or knowingly
permit any third party to do so) outside of the United States without the prior
written consent of FieldWorks.
3.4 Except as permitted in Section 1.2, OEM shall not modify the Products
in any manner and shall maintain Products in its inventory in a clean, safe and
professional condition. OEM shall not reverse engineer, decompile or
disassemble the Products and shall not knowingly allow any other person to do
so.
3.5 OEM agrees to, and hereby does, indemnify FieldWorks, its officers,
directors, employees and agents against and hold each of them harmless from any
and all claims, causes of action, damages, liabilities, costs and expenses
(including attorneys fees) arising from any breach by OEM of any provision of
this Agreement.
3.6 FieldWorks may from time to time review OEM's performance under this
Agreement. Upon request by FieldWorks, OEM shall provide FieldWorks with
relevant records and/or access to OEM's facility (during normal business hours)
to perform such review.
4. Warranty
4.1 FieldWorks warrants the Products to OEM and its customer for a period
of one (1) year from the date of shipment to OEM pursuant to the terms of
FieldWorks' then current standard product warranty. In order for the warranty
to transfer to the customer, OEM must provide to FieldWorks the customer
identification information identified in Section 3.2.
4.2 The warranty set forth in Section 4.1 is intended for the benefit of
OEM and OEM's customers. All claims made hereunder shall be made by OEM or by
OEM's customer through OEM.
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
4.3 THE WARRANTY SET FORTH IN SECTION 4.1 AND IN FIELDWORKS' STANDARD
WARRANTY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE
HEREBY DISCLAIMED AND EXCLUDED BY FIELDWORKS, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND ALL
OBLIGATIONS OR LIABILITIES ON THE PART OF FIELDWORKS FOR DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE DISTRIBUTION, USE, REPAIR OR PERFORMANCE OF THE
PRODUCTS.
5. Trademarks
5.1 FieldWorks grants to OEM a non-exclusive, nontransferable, royalty-
free license to use FieldWorks' trademarks and trade names solely in connection
with the distribution, promotion, advertising and maintenance of the Products
and in accordance with FieldWorks' standards and instructions. OEM shall not
use any other marks or trade names in connection with the marketing and
distribution of the Products without the prior written consent of FieldWorks.
All use of FieldWorks' trademarks and tradenames shall be subject to FieldWorks'
prior written approval and FieldWorks may, from time to time, inspect and
monitor OEM's use of the FieldWorks trademarks.
5.2 OEM is not granted any right, title or interest in such trademarks
other than the foregoing limited license, and OEM shall not use any FieldWorks
trademarks as part of OEM's corporate or trade name or permit any third party to
do so. OEM shall not register FieldWorks' trademarks or trade names without
FieldWorks' prior written authorization, nor adopt, use or register any words,
phrases or symbols which are identical to or confusingly similar to any of
FieldWorks' trademarks. Upon termination or expiration of this Agreement, OEM
shall cease and desist from use of FieldWorks' trademarks and trade names in any
manner.
5.3 OEM shall not remove or alter any patent numbers, trade names, trade
marks, notices, serial numbers, labels, tags, copyright notices or other
identifying marks, symbols or legends affixed to any Products, documentation,
containers or packages, without the prior written consent of FieldWorks.
5.4 OEM shall promptly notify FieldWorks in writing of any unauthorized
use of FieldWorks' trademarks or similar marks which may constitute an
infringement or passing off of FieldWorks' trademarks and shall cooperate with
FieldWorks in any legal action taken by FieldWorks. FieldWorks reserves the
right in its sole discretion to institute any proceedings against such third
party infringers.
6. Term and Termination
6.1 Unless earlier terminated as provided in this Agreement, this
Agreement shall commence as of the date set forth above and shall terminate one
(1) year thereafter. This agreement may be renewed for additional one (1) year
terms upon written agreement of the parties which agreement must include mutual
agreement as to the annual minimum sales quota and the ship forecast for such
renewal term. If the parties fail to agree in writing upon a renewal of this
Agreement prior to the expiration of this Agreement, this Agreement shall
automatically expire and terminate without further notice to either party.
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
6.2 Either party can terminate this Agreement, with or without cause, on a
thirty (30) days' prior written notice to the other party.
6.3 Within thirty (30) days of the termination of this Agreement, OEM
shall provide to FieldWorks:
1 A list of all OEM's customers and the destination of all Products
sold, and
1 Complete information regarding any negotiations ongoing for the
sale of Products, and
1 A list of all OEM's customers whose units are still under warranty.
6.4 Upon termination or expiration of this Agreement, unless FieldWorks
terminates for OEM's material breach, OEM shall have the right to distribute its
then existing inventory of Products during the three (3) month period following
such termination or expiration, and OEM shall thereafter cease selling, leasing
or distributing the Products. If this Agreement is terminated for OEM's
material breach, OEM shall cease selling, leasing or distributing the Products
as of the effective date of such termination. Sections 3.3, 4 and 7 shall
survive any termination or expiration of this Agreement.
7. Confidentiality
7.1 OEM agrees that in the course of business dealings with FieldWorks,
certain valuable, proprietary and confidential information of FieldWorks is
likely to become known to OEM, including, without limitation, such information
as equipment and software design information, documentation, prospect and
customer lists, key employee names, pricing, discount, and commission
structures, production volumes, and similar information (hereinafter
"proprietary information"). OEM agrees that the proprietary information is the
sole and exclusive property of FieldWorks and shall be treated as confidential.
OEM shall not disclose the proprietary information in any manner to any third
party without the prior written approval of FieldWorks and shall take reasonable
measures to prevent any unauthorized disclosure by its employees, agents,
contractors or consultants during the term hereof including appropriate
individual nondisclosure agreements. OEM may use the proprietary information
during the term of this Agreement only as permitted or required for OEM's
performance hereunder.
7.2 The obligations set forth in Section 7.1 shall not apply to any
information which is or becomes known to the general public, or which OEM can
prove by written records was known to OEM at the time of its receipt thereof
from FieldWorks, or which has been rightfully obtained by OEM from a third
party. The provisions of this Section 7, shall survive any termination or
expiration of this Agreement.
8. General
8.1 This Agreement, including the Exhibits hereto which are incorporated
herein by reference, constitute the entire Agreement between the parties and
supersedes all prior and contemporaneous Agreements, understandings, negations
and discussions, whether written or oral.
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
8.2 Any dispute between the parties arising out of or in connection with
this Agreement, if not resolved by mutual agreement between the parties, shall
be settled by binding arbitration under the rules of the American Arbitration
Association. In the event of any such dispute or difference, either party may
give to the other party written notice that the matter shall be settled by
arbitration. Such arbitration shall be conducted in Hennepin County, Minnesota,
USA. An award by arbitration may be entered as final judgment in any court
having jurisdiction in the matter or application may be made to such a court for
acceptance of the award and for an order of compliance.
8.3 This Agreement shall be governed by and interpreted under the laws of
the State of Minnesota, USA, excluding its choice of law rules.
8.4 OEM shall pay all expenses incidental to the performance of its duties
hereunder, including payroll taxes, salaries, wages or commissions for
employees, transportation and travel expenses and the expense of maintaining
such office as OEM shall deem desirable.
8.5 All modifications, amendments, and/or waivers to this Agreement, less
exhibits, shall be in writing and signed by both parties. No failure by either
party to take any action or assert any right hereunder shall be deemed to be a
waiver of such right in the event of the continuation or repetition of the
circumstances giving rise to such right.
8.6 In no event shall FieldWorks be liable to OEM, any of OEM's customers
or any other party for loss of profits, indirect, special, consequential or
incidental damages arising out of this Agreement, even if FieldWorks shall have
been advised of the possibility of such potential loss or damage by OEM or OEM's
customers. In no event shall FieldWorks be liable for any damages in excess of
the aggregate amounts actually paid by OEM to FieldWorks under this Agreement.
8.7 OEM may not assign, delegate or transfer any of its rights or
obligations under this Agreement, without the prior written consent of
FieldWorks. Any attempted assignment, delegation or transfer by OEM without
such consent shall be void.
8.8 If any provision of this Agreement is found invalid or unenforceable,
such provision shall be deemed stricken from the Agreement and the remainder of
the Agreement shall continue in full force and effect.
8.9 This Agreement does not make either party the employee, agent or legal
representative of the other for any purpose whatsoever. Neither party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party. Each party is acting as an independent contractor.
8.10 Notices permitted or required to be given hereunder shall be deemed
sufficient if given by (a) registered or certified mail, postage prepaid, return
receipt requested, (b) private courier service, or (c) facsimile addressed to
the respective addresses of the parties as first above written or at such other
addresses as the respective parties may designate by like notice from time to
time. Notices so given shall be effective upon (1) receipt by the party to
which notice is given, or (2) on the fifth (5th) day following mailing,
whichever occurs first.
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
8.11 If the performance of this Agreement or any obligation hereunder
(other than the payment of monies due owing hereunder) is prevented, restricted
or interfered with by reason of any event or condition beyond the reasonable
control of such party (including without limitation acts of State or
governmental action, riots, disturbance, war, strikes, lockouts, slowdowns,
prolonged shortage of energy or other supplies, epidemics, fire, flood,
hurricane, typhoon, earthquake, lightning and explosion,), the party so affected
shall be excused from such performance, only for so long as and to the extent
that such a force prevents, restricts or interferes with the party's performance
and provided that the party affected gives notice thereof to the other party and
uses diligent efforts to remedy such event or conditions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives below.
FIELDWORKS INCORPORATED
____________________________ _________________________________
By By
___________________________ _________________________________
Title Title
___________________________ _________________________________
Date Date
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OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
EXHIBIT A
THE PRODUCTS
The products to be sold by OEM include:
OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
EXHIBIT B
TERRITORY/MARKET BOUNDARIES
Territory includes all FieldWorks labeled products which are sold and shipped by
OEM to the following geographic territory/and or markets:
Inclusions:
Exclusions:
OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
EXHIBIT C
ONE YEAR SHIP QUOTA
For the twelve (12) month period beginning and ending , the
total Units bought by OEM from FieldWorks, Inc. is UNITS and assigned as
minimum sales quota for the period.
Ship schedule for the period is as follows:
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Jan Feb Mar April May June July Aug Sept Oct Nov Dec
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Note: OEM can deviate from the above schedule if permitted by FieldWorks.
OEM AGREEMENT (TYPE CO. NAME, CONTRACT DATE)
EXHIBIT D
PRICE SCHEDULE
Product percentage off list
Maintenance Contracts
