Exhibit 6.8
TRAFFIC TECHNOLOGY, INC.
DISTRIBUTOR AGREEMENT
This Distributor Agreement is made and entered into this _____ day of
____________, 2000 ("Effective Date"), by and between Traffic Technology, Inc.
("TTI"), an Arizona Corporation and ____________________ ("Distributor"), a
_______________ Corporation.
RECITALS:
WHEREAS, TTI is in the business of manufacturing and selling traffic
signals including the Unilight brand and related products ("Products"); and
WHEREAS, TTI wishes to sell to Distributor and Distributor wishes to
purchase from TTI the Products for resale;
WHEREAS, TTI is desirous of appointing Distributor as a distributor in the
territory identified in Attachment A (Territory); and
WHEREAS, Distributor is desirous of receiving such an appointment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
1. NATURE OF APPOINTMENT. TTI hereby appoints Distributor as the
distributor for the territory, and Distributor hereby accepts such appointment
by TTI as a distributor of TTI Products.
2. DISTRIBUTOR TERRITORY. Distributor is hereby appointed as the
distributor to sell the Products of TTI in the Territory.
2.1. Distributor hereby agrees not to make any sales whatsoever of
like types of Products now being sold by TTI in the assigned territory, without
the express written consent of TTI.
2.2. Distributor agrees that in the event the total purchases of
Products should fall below the amount defined in Attachment A as "Minimum
Quarterly Purchases" during a calendar quarter, the right to distribute the
Products can be terminated.
3. STATUS OF DISTRIBUTOR. It is the intent of the parties that
Distributor's status be that of an independent contractor and not an employee of
TTI. The relationship between the parties shall be that of buyer and seller. The
Distributor shall not be considered the agent or representative of TTI. Neither
party shall have the right to bind the other contractually in any respect
whatsoever. As a result of this Agreement, no joint venture, partnership or
other entity or association is created and Distributor shall have complete
control over the time, place and method of performing its obligations pursuant
to this Agreement.
4. PURCHASE OF PRODUCTS. TTI shall sell to Distributor and Distributor
shall purchase from TTI, in accordance with the terms and conditions of this
Agreement, the Products pursuant to the published TTI Distributor Price List.
The Distributor shall set the resell prices. It is the intention of the parties
that Products shall be purchased by Distributor hereunder for the purpose of
resale and that the Distributor shall sell the Products solely within the
Territory unless otherwise agreed to and be responsible for the collection and
reporting of any and all sales tax or use tax in its territory. TTI reserves the
right to change the design of its products from time to time.
4.1. At the time of execution of this Agreement, Distributor shall
place with TTI an initial order for a Demonstration Kit including products and
related sales materials as defined and priced in Attachment A.
4.2. Beginning the first day of the month following 90 days from the
execution of this Agreement, Distributor shall purchase from TTI the amount
defined as the "Initial Quarterly Minimum Purchases" in Attachment A.
5. DELIVERY. All deliveries shall be made and delivered to Distributor
F.O.B. point of shipment. Title to and risk of loss shall pass to the
Distributor on TTI's placing same in the custody of a carrier for shipment to
the Distributor. It is the sole responsibility of the Distributor to file any
appropriate claims with the carrier for reimbursement. TTI will fully cooperate
with the Distributor in making such claims. The Distributor may return any
products, which are defective at the expense of TTI within ten (10) days of
delivery of such products to the Distributor. TTI will then replace such
defective products at its own expense as soon as practicable.
6. PARTS. Distributor agrees to not replace any component parts of TTI
products without the express written consent of TTI.
7. FINANCIAL STATUS OF DISTRIBUTOR. The Distributor agrees to maintain
adequate finances for satisfactory execution of this Agreement and recognizes
that up-to-date and accurate information regarding the Distributor's stock on
hand, and sales records are necessary.
8. COMMENCEMENT; TERM; AND TERMINATION.
8.1 This Agreement shall commence on the Effective Date as referred
above and will continue until terminated in accordance with Section 8.
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8.2 This Agreement may be terminated as follows:
8.2.1. By either party in the event of a material breach or
default by the other party in compliance with any term or condition of this
Agreement, which breach or default has not been cured or rectified within 30
days after written notice to the breaching or defaulting party; however, the
inability to deliver Products for causes beyond TTI's reasonable control shall
not be a material breach;
8.2.2. By either party by giving 90 days prior written notice to
the other party, stating the date of intended termination.
8.2.3. By TTI at the end of any 3 consecutive month period during
which Distributor has not purchased the minimum amount of TTI products.
8.2.4. Assignment of this Agreement by Distributor without the
written consent of the other party;
8.2.5. Bankruptcy or insolvency of Distributor, which materially
affects the operation of its business hereunder; or
8.2.6. Failure of Distributor to timely pay its obligations
hereunder.
9. OBLIGATIONS OF TTI. TTI agrees to exercise its best efforts to have
available and to sell to Distributor reasonable requirements for the Products.
10. CUSTOMER COMPLAINTS. The Distributor agrees to handle all of the
complaints of its customers. The Distributor realizes that it must properly
fulfill its responsibility in this regard in order to protect the good will of
TTI and the Distributor in the sale of the products. The Distributor agrees to
make every reasonable effort to satisfy its customers. The Distributor shall
report to TTI all complaints, which it is unable to resolve promptly.
11. ORDER PROCESSING AND SHIPMENT TO DISTRIBUTOR. TTI will use its best
efforts to fill the orders of the Distributor promptly upon receipt but reserves
the right to apportion available inventories as it deems best. The Distributor
agrees to submit its orders as far as possible in advance of the required
deliveries. All orders are subject to approval and acceptance by TTI.
12. INSURANCE. Distributor shall procure and maintain in force a liability
insurance policy that is reasonable consider the Distributor's business and
geographic location. Distributor shall name TTI as an additionally named
insured. Distributor shall deliver a true copy of such liability insurance
policy to TTI. Distributor agrees to indemnify and hold harmless TTI from any
claims arising out of the operation of the Distributor's vehicle or operation of
the Distributor's business.
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13. NON-competition; confidential information. For so long as this
Agreement shall remain in effect:
(a) Distributor shall not, directly or indirectly, be involved as
owner, partners, shareholder, joint venturer, director, employee
or otherwise, in the conduct of any business that manufactures or
sells like products with TTI line of single-lens-multi-face
signals such as the Unilight signal (those that display two or
more faces through a single opening by the use of suitably
arranged LED's).
(b) Distributor shall not solicit business from any of TTI's
customers, except on behalf and for the benefit of TTI, nor shall
Distributor solicit any of TTI's employees or other sales
representatives for the purpose of being employed by Distributor,
or by any party in which Distributor is an owner or employee.
(c) Distributor acknowledges that certain information of TTI, such as
TTI's sales manuals, price lists, customer lists and similar
materials, are TTI's trade secrets and shall be and remain TTI's
sole and exclusive confidential property. Distributor shall not
disclose any such information to others. Distributor shall not
use such confidential information in any way except in
furtherance of his services on TTI's behalf.
14. MISCELLANEOUS. Except to the extent inconsistent with the express
language of the foregoing provisions of this Agreement, the following provisions
shall govern the interpretation, application, construction and enforcement of
this Agreement:
14.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in this Agreement (and in any certificate or other
instrument delivered or on behalf of any party pursuant hereto or in connection
with the transactions contemplated hereby) are true in all material respects on
and as of the date so made, will be true in all material respects on and as of
the date on which the transactions contemplated hereby are closed, and will
survive such closing regardless of any investigation made by or on behalf of any
party.
14.2. NOTICES. Any notice to any party under this Agreement shall be
in writing, shall be effective on the earlier of (i) the date when received by
such party, or (ii) the date which is three days after mailing (postage prepaid)
by certified or registered mail, return receipt requested, to the address of
such party set forth as follows:
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"DISTRIBUTOR"
"TTI"
Xxxxx Xxxxxxx
Traffic Technology, Inc
0000 X. Xxxxx Xxxx X-0.
Xxxxxxxxxx XX 00000
14.3. SEVERABILITY. If any provision of this Agreement is declared
void or unenforceable, such provision shall be deemed severed from this
Agreement, which shall otherwise remain in full force and effect.
14.4. ADDITIONAL ACTS AND DOCUMENTS. Each party hereto agrees to do
all such things and take all such actions, and to make, execute and deliver such
other documents and instruments, as shall be reasonably requested to carry out
the provisions, intent and purpose of this Agreement.
14.5. AUTHORITY. Each of the parties hereto represents and warrants to
each other than this Agreement has been duly authorized by all necessary action,
that this Agreement constitutes and will constitute a binding obligation of each
such party, and that this Agreement has been (and each instrument delivered
hereunder, when so delivered, will have been) duly and validly executed on
behalf of such party.
14.6. ATTORNEYS' FEES. In the event suit is brought (or arbitration
instituted) or any attorney is retained by any party to this Agreement to
enforce the terms of this Agreement or to collect any moneys due hereunder, or
to collect money damages for breach hereof, the prevailing party shall be
entitled to recover, in addition to any other remedy, reimbursement for
reasonable attorneys' fees, court costs, costs of investigation and other
related expenses incurred in connection therewith.
14.7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors in
interest and assigns, but in no event shall any party be relieved of its
obligations hereunder without the express written consent of each other party.
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14.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute one and the
same instrument, and each of said counterparts shall be deemed an original
hereof.
14.9. TIME. Time is of the essence of this Agreement and each and
every provision hereof. Any extension of time granted for the performance of any
duty under this Agreement shall not be considered an extension of time for the
performance of any other duty under this Agreement.
14.10. WAIVER. Failure of any party to exercise any right or option
arising out of a breach of this Agreement shall not be deemed a waiver of any
right or option with respect to any subsequent or different breach, or the
continuance of any existing breach.
14.11. CAPTIONS. Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not be deemed to
limit or alter any provision hereof and shall not be deemed relevant in
construing this Agreement.
14.12. GOVERNING LAW. This Agreement shall be deemed to be made under,
and shall be construed in accordance with and shall be governed by, the laws of
the State of Arizona, and to enforce any provision of this Agreement or to
obtain any remedy with respect hereto may be only brought in Superior Court,
Maricopa County, Arizona, and for this purpose each party hereby expressly and
irrevocably consents to the jurisdiction of said court.
14.13. INDEMNITY. Each party to this Agreement agrees to indemnify
each other party, and hold it harmless, from and against all claims, damages,
costs and expenses (including attorneys' fees) attributable, directly or
indirectly, to the breach by such indemnifying party of any obligation hereunder
or the inaccuracy of any representation or warranty made by such indemnifying
party herein or in any instrument delivered pursuant hereto or in connection
with the transactions contemplated hereby.
14.14. INTERPRETATIONS. To the extent permitted by the context in
which used, (i) words in the singular number shall include the plural, words in
the masculine gender shall include the feminine and neuter, and vice versa, and
(ii) references to "persons" or "parties" in this Agreement shall be deemed to
refer to natural persons, corporations, general partnerships, limited
partnership, trusts and all other entities.
14.15. SPECIFIC PERFORMANCE. In addition to such other remedies as may
be available under applicable law, the parties acknowledge that the remedies of
specific performance and/or injunctive relief shall be available and proper in
the event any party fails or refuses to perform its duties hereunder.
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14.16. EXHIBITS. Any Exhibit attached hereto shall be deemed to have
been incorporated herein by this reference, with the same force and effect as if
fully set forth in the body hereof.
14.17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes any prior verbal or written
agreement.
14.18. MODIFICATIONS. This agreement may not be modified or changed
without the written consent of all parties hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the date first above written.
"DISTRIBUTOR" TRAFFIC TECHNOLOGY INC.
--------------------------- ----------------------------
Xxxx Xxxxxxx President
Its
Phone # (000) 000-0000
Fax # (000) 000-0000
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ATTACHMENT A
EFFECTIVE DATE:
TERRITORY:
MINIMUM QUARTERLY PURCHASES: $6,000.00
DEMONSTRATION KIT
CONTENTS:
1 TB12 TRAILBLAZER
1 IC12 INTERSECTION CONTROL
1 LC12 LANE CONTROL
1 TA12B TURN ARROW 3 FACE (RYG)
25 VIDEO CD ROMS
25 VHS VIDEO TAPES
25 SETS OF PRODUCT SHEETS
PRICE: $ 6,000
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