DISTRIBUTION AGREEMENT
THIS
AGREEMENT
is made
May 15, 2006 between SOL INC., a Florida corporation, its successors and assigns
(“Seller”) and Solar Night Industries, a Nevada corporation, its successors and
assigns (“Distributor”).
WITNESSETH:
WHEREAS,
Seller
is a designer and producer of solar powered landscape lights (hereinafter called
the “Products”); and
WHEREAS,
Distributor desires to act as distributor of the Products, upon the terms and
conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the mutual agreements hereinafter contained, it is hereby
agreed by the parties hereto, as follows:
| 1. |
Grant
of Exclusivity:
Seller grants to Distributor the exclusive right to buy or represent
the
Products in the US on its web site and the following sales
channels:
|
See
Schedule “A”
| 2. |
Term:
Beginning the date hereof and in effect for one year, unless cancelled
earlier as herein provided or extended by agreement in writing. Automatic
renewal of this Agreement for one year occurs if during this term
Seller
receives purchase orders from Distributor in excess of
$250,000.
|
3. Seller’s
Obligations:
a. Seller
shall in good faith fill the purchase orders of Distributor and make shipments
in accordance with payment terms.
b. Seller
shall provide Distributor with marketing materials, and training, as requested,
at its office in Palm City, Florida.
c.
Distributor
shall be entitled to buy the Products from Seller at not less than retail prices
less 20%. Distributor can establish the selling price to his customer. Seller’s
warranty shall apply to all purchases by Distributor.
d. Under
no
circumstances shall Seller be liable for any loss, or expense to Distributor,
or
anyone claiming through Distributor, beyond the limit of liability in the
liability insurance coverage held by Seller. Seller shall not be liable for
indirect, incidental, punitive or exemplary, special or consequential damages
sustained by Distributor as a result of any breach of this Agreement or
otherwise relating to this Agreement or for Seller’s alleged negligence, or for
any claim made against Distributor by any other party.
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e. Seller
agrees not to interfere with the relationships between Distributor and its
customers. Notwithstanding the preceding, Seller reserves the right, and
Distributor consents to having Seller communicate with Distributor’s customers,
or prospective customers. Seller shall notify Distributor in advance of such
contacts.
4. Distributor’s
Obligations:
a. Distributor
shall not sell any products which compete with Seller’s Products, including, but
not limited to, flood lights, street and parking lot lights, sign and billboard
lights, transit lights, indoor lighting kits, flashers or any similar products
operated by solar energy, during the duration of the Agreement and its extension
and for six months thereafter.
b. Distributor
shall use its best efforts to promote the sale and use of the Products.
Distributor shall conduct its business not to reflect negatively upon the
reputation of Seller or its Products. It shall always be truthful in
representing the Products. It shall notify Seller of any problems with the
Products. It shall inform Seller of any new product opportunities.
c. Distributor
agrees to provide Seller monthly reports including (1) progress with
“Prospects”, (2) new Prospects, (3) reports on competition, (4) sales forecasts.
Distributor agrees to respond to Seller’s requests for added
information.
| d. |
Distributor
will be responsible for post-installation service, including stocking
of
spare parts. Labor to replace parts under warranty shall be at no cost
to
SOL.
|
5. Ownership
and Proprietary Rights:
a. Any
trademarks, trade names, Internet site, or identifying slogans affixed to the
Products or any accompanying labels, containers and cartons, whether or not
registered, constitute the exclusive property of Seller and cannot be used
except in connection with promoting and selling the Products and as approved
in
advance in writing, and provided by Seller. Upon termination of this Agreement,
Distributor shall have no further right to use or affix any such trademarks,
trade names or identifying slogans.
b. Distributor
acknowledges that the products and any items of information provided by Seller
and designated as confidential or proprietary, including designs, drawings,
specifications, data sheets, technical bulletins, and service manuals,
(hereinafter, the “Confidential Information”) constitute valuable trade secrets
and proprietary information of Seller. Distributor agrees that it shall hold
the
Confidential Information in strict confidence and not divulge it to any other
person or entity without the prior written permission of Seller. All Products
sold by Distributor shall bear the trademarks of Seller, which shall not be
removed by Distributor. Distributor agrees that in the event of a breach or
threatened breach of this covenant, Seller will suffer irreparable injury for
which monetary damages may not adequately compensate Seller. As a result, an
injunction may be issues restraining such Distributor action. Such remedies
shall be in addition to any others.
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c. Distributor
acknowledges that any patents, including, but not limited to, U.S. Patent No.
5,149,188 for the “Solar Powered Exterior Lighting Systems” , No. 5,107,637 for
“Transit Shelter with Self-Contained Illumination System”, No. 404,842 for
“Solar Powered Lighting Fixture” , No. 424,729 for “Solar Powered Lighting
Unit”, or other industrial or intellectual proprietary rights relating to the
Products or any improvements thereon, are the sole and exclusive property of
Seller.
6. Termination:
a. This
Agreement may be terminated by Seller, upon giving Distributor 15 days written
notice, should Distributor commit or permit any other breach of this Agreement
and Distributor fails to cure such breach within 30 days after written notice.
If Distributor breaches its covenant of non-competition or the confidentiality
provision, or if its conduct or actions can only be reasonably interpreted
as
damaging to Seller, then this Agreement shall immediately terminate.
Notwithstanding, Distributor shall have the right to receive orders in process,
and Seller agrees to ship, provided payment has been received.
b. This
Agreement may be terminated by Distributor should Seller commit or permit any
breach of this Agreement with regard to Seller’s performance hereunder, and
Seller fails to cure such breach within 30 days after written notice to Seller.
If Seller fails to cure the breach, Distributor shall have the option, in its
sole discretion, to terminate this Agreement.
c. Notice
of
Termination shall be by Registered Express Mail.
d. Seller
warranties shall not cease upon termination. Seller may continue a non-exclusive
business relationship and will provide spare parts.
7. Indemnification:
Each of
Seller and Distributor agrees to indemnify, defend and hold the other harmless
from and against all liability, claim, injury, loss or expense, including
reasonable attorneys’ fees, arising out of any breach of this Agreement by
Seller or Distributor, as the case may be.
8. Miscellaneous:
a. This
Agreement may not be changed, modified, waived, or amended unless agreed to
in
writing signed by both parties hereto.
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b. The
validity and performance of this Agreement shall be governed by the laws of
the
United States and the State of Florida. Service may be made by first-class
mail,
certified, to Distributor’s address as it last appears on the records of Seller.
The prevailing party shall be entitled to its attorneys’ fees and costs, in
addition to any other relief. Breach of this Agreement shall entitle Seller
to
immediate injunctive relief in addition to any other relief.
c. This
Agreement contains the entire understanding of the parties as to the subjects
herein and shall be binding on, and inure to the benefit of the parties to
it
and their legal representatives, successors and permitted assigns. Distributor
may not transfer this Agreement without the prior written consent of the Seller,
which shall not be unreasonably withheld.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement the date and year first above
written.
| Seller: | |
| SOL INC | |
| Witness: | |
| ______________________________________________ | By: __________________________________________________ |
| Xxx Xxxx-Xxxxx, CEO | |
|
Distributor:
Solar
Nights Industries, Inc.
|
|
| By: __________________________________________________ | |
| Witness: | |
| ______________________________________________ | Name: ________________________________________________ |
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