AGREEMENT NO. PD-030306
ISECURETRAC(TM) CORP.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
PREFERRED DISTRIBUTOR AGREEMENT
THIS AGREEMENT effective this 12th day of March, 2003 ("Effective
Date"), by and between iSecureTrac, and Premier Geografix LTD., an United
Kingdom corporation, having its principal offices at Xxxxxxxxx Xxx, Xxxxxxx,
Xxxxxxx, XX0 0XX, XX ("DISTRIBUTOR").
iSecureTrac has designed and developed and manufactures the
iTracker(TM) mobile tracking device utilizing GPS and advanced communications
technologies to enable accurate tracking and real time or scheduled mapping of
individuals, mobile equipment and transportation vehicles.
DISTRIBUTOR desires to purchase from iSecureTrac, from time to time,
iTracker units and associated products on the terms and conditions described in
this Agreement for resale, lease or other distribution to its customers in the
United Kingdom and Canada marketplace ("Target Market").
NOW THEREFORE, iSecureTrac and DISTRIBUTOR agree as follows:
1.0 DEFINITIONS
1.1 "Products" shall mean iTracker and other specific Products
purchased under this Agreement or any substitutes therefore,
as more fully described on Attachment 1 hereto.
1.2 "Services" shall mean the Product support services provided by
iSecureTrac to DISTRIBUTOR, including, but not limited to,
training, extended warranty service and product repair
services, as more fully described on Attachment 2 hereto.
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1.3 "End-User" shall mean a user of Products or products similar
thereto within the Target Market.
1.4 This Agreement consists of the terms and conditions stated
herein and in the Attachments which are incorporated herein by
reference and consist of:
1.4.1 Attachment 1: Schedule of Purchased Products
1.4.2 Attachment 2: Support Services
2.0 PURCHASER AND RESELLER
2.1 Product Purchases. DISTRIBUTOR may purchase from iSecureTrac
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the Products listed on Attachment 1 at the prices indicated
thereon,
2.2 Reseller Authorization. iSecureTrac hereby specifically
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authorizes DISTRIBUTOR to resell, lease, rent or otherwise
distribute Products to End-Users. The parties believe that
each can better penetrate the Target Market under the
relationship established by this Agreement and that sharply
focused and concentrated marketing efforts are needed to
respond to the intense interbrand competition that the
parties' respective products face from other suppliers and to
thus gain penetration in the Target Market.
2.3 Purchase Orders. Products shall be ordered for delivery
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through the execution of applicable purchase orders which
shall state quantity, Product identification numbers and/or
Product name, unit price, point of delivery, delivery dates,
accessories to be shipped with the Products, delivery
instructions and any other special information and shall refer
to this Agreement by agreement number.
2.4 Pricing. Products and Services are priced for sale by
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iSecureTrac to DISTRIBUTOR during the Term as specified on
Attachments 1 and 2 (collectively, the "Prices"). The Prices
are fixed for a period of six (6) months from the Effective
Date. Thereafter, prices are subject to change after written
notice to the DISTRIBUTOR, pricing increases to be within 3%
of the US published annual rate of inflation. However, such
price changes shall not effect pricing listed on any
outstanding purchase orders. The total purchase price of all
Products ordered on any single purchase order is subject to
the appropriate volume discount listed on Attachment 1.
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2.5 Inconsistencies in P.O. Terms. In the event of any
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inconsistencies between the terms of this Agreement and any
terms contained on any purchase order delivered to ISECURETRAC
hereunder, the terms of this Agreement shall govern and take
priority.
2.6 License. iTracker contains firmware developed and owned by
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iSecureTrac. A limited, non-exclusive, irrevocable, royalty
free, transferable license is hereby granted to DISTRIBUTOR,
in perpetuity, for distribution and use of said software on
the specific iTracker device in which said software was
placed, and for no other. iSecureTrac shall retain ownership
of all proprietary rights to said software. The license
granted herein shall be deemed to be in effect upon delivery
of each iTracker and is included in its Price.
2.7 Independent Contractors. Neither the above nor any other part
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of this Agreement shall be construed as agency, legal
representation, partnership, joint venture, or any other
relationship between the parties other than being separate
entities which remain independent contractors.
2.8 DISTRIBUTOR Representation. DISTRIBUTOR hereby represents that
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it has the capability to support End-Users in their use of the
Products through training and other services which ensure
optimum Product usage.
3.0 PRODUCT SUBSTITUTION
3.1 Notification. iSecureTrac shall use its best efforts to notify
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DISTRIBUTOR of plans and intentions to modify form, fit or
function of production Products, for which DISTRIBUTOR has a
purchase order outstanding at the time, as soon as such plans
have been finalized by iSecureTrac.
3.2 Substitution. iSecureTrac may develop and manufacture new
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versions of the Products purchased hereunder and substitute
the same for Products then being purchased by DISTRIBUTOR
provided that, in iSecureTrac's sole judgment, the
functionality and efficiency of such substitutions equals or
exceeds that of the Products being replaced.
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3.3 Discontinuance. In the event that iSecureTrac intends to
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discontinue the manufacturing of specific types of Products,
without substitution, it shall notify DISTRIBUTOR thereof in a
sufficient timely manner to allow DISTRIBUTOR to procure
similar products elsewhere, if desired.
4.0 SHIPMENTS
4.1 Carrier. iSecureTrac shall select the method of shipment and
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the carrier, consistent with the nature of the Products and
the hazards of transportation, upon receiving DISTRIBUTOR's
purchase order.
4.2 F.O.B. All deliveries of Products made pursuant to this
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Agreement shall be made F.O.B. Omaha, NE or iSecureTrac's
designated shipping point.
4.3 Delivery Address.iSecureTrac shall ship Products to the
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address specified by DISTRIBUTOR on the purchase order. If
DISTRIBUTOR fails to specify a destination for delivery,
iSecureTrac shall deliver the Products to DISTRIBUTOR's
address listed on this Agreement.
4.4 Confirmed Deliver Date. DISTRIBUTOR will use its best efforts
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to place purchase orders with iSecurTrac at least 90 calendar
days prior to required delivery dates. iSecuretrac shall
confirm delivery date or agree to an alternative delivery date
with the DISTRIBUTOR within 15 calendar of receipt of the
purchase order.
4.5 Transfer of Title and Risk of Loss. Title to Products shall
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pass to DISTRIBUTOR, and all risk of loss, damage or
destruction of Products shall be assumed by DISTRIBUTOR upon
shipment.
4.6 Shipping Delay. iSecureTrac shall ship Products in a
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sufficiently timely manner as to meet Confirmed Delivery
Dates. In the event iSecureTrac fails to ship Products as
specified in DISTRIBUTOR's purchase orders within fifteen
calendar (15) days after the Confirmed Delivery Date for
reasons other than force majeure, DISTRIBUTOR may cancel such
shipment without penalty. Notwithstanding the above,
iSecureTrac reserves the right to suspend shipments in the
event DISTRIBUTOR has not paid overdue invoices to iSecureTrac
(i.e. invoices more than 30 days old) in which event shipping
delays, for purpose of this paragraph, shall be deemed tolled.
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4.7 Cancellation. DISTRIBUTOR may cancel part or all of any
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purchase order without penalty, provided that such
cancellation is received by iSecureTrac more than ninety (90)
days prior to the Confirmed Delivery Date for the applicable
shipment. If iSecureTrac receives such cancellation order
within ninety days of the Confirmed Delivery Date, iSecureTrac
may charge DISTRIBUTOR cancellation fees, consisting of a
percentage of the price of the Products cancelled, in
accordance with the following schedule:
Cancellation Received by iSecureTrac Cancellation Fee
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60 to 90 days before Confirmed Delivery Date 15% of price
30 to 59 days before Confirmed Delivery Date 25% of price
0 to 29 days before Confirmed Delivery Date 50% of price
4.8 Rescheduling. DISTRIBUTOR may, once for each shipment ordered
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from iSecureTrac, reschedule shipments of all or any portion
of any firm purchase order at any time without penalty or
charge up to the time period prior to the Confirmed Delivery
Date as specified by iSecureTrac when it issues its Confirmed
Delivery Date for each purchase order. After such time period
has expired, iSecureTrac reserves the right to charge
DISTRIBUTOR a delay-in-shipment fee of 1.5% of the order
price, or the order price of such part or parts of an order on
which delayed shipment has been sought by DISTRIBUTOR, per
month starting on the Confirmed Delivery Date. If DISTRIBUTOR
reschedules any shipment, or part thereof, to a date more than
six calendar months from the Confirmed Delivery Date,
iSecureTrac may treat such requested delay-in-shipment as a
cancellation, subject to the penalty provisions of Section 4.7
above.
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5.0 CHARGES AND PAYMENTS
5.1 Invoices. iSecureTrac shall render invoices for delivered
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Products upon or after shipment. All charges shall be set
forth in U.S. dollars. Invoices shall be due and payable net
30 days from the invoice date. Amounts not paid by the due
date may be subject to a 1.5% monthly interest charge.
5.2 Taxes. Product prices are exclusive of all taxes however
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designated. DISTRIBUTOR shall be responsible for the payment
of all applicable sales and/or use taxes.
5.3 Shipping Charges. The cost of shipping Products, including
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applicable insurance, shall be invoiced to DISTRIBUTOR.
5.4 Security Interest. iSecureTrac reserves, and DISTRIBUTOR
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grants to iSecureTrac, a purchase money security interest in
each Product sold hereunder, securing payment of all and any
amounts owed by DISTRIBUTOR to iSecureTrac. This security
interest shall be deemed released upon full payment of any
such amounts.
6.0 WARRANTY
6.1 Product Warranty.Each Product purchased hereunder is warranted
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by iSecureTrac to operate in conformity with the written
specifications published by iSecureTrac for such Product from
time to time ("Specifications") and to be free from defects in
materials and/or workmanship under normal and proper use for a
period of one (1) year following its date of delivery (the
"Product Warranty"). The Product Warranty shall survive any
expiration or termination of this Agreement and shall be fully
and freely assignable and transferable by DISTRIBUTOR to its
End-User customers.
6.2 Remedy. iSecureTrac's obligation under this warranty is
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limited to repairing or replacing, at iSecureTrac's sole
option, free of charge, F.O.B. at iSecureTrac's designated
facility, any Product which fails to conform within the one
year warranty period.
6.3 Procedure. Unless waived by iSecureTrac, DISTRIBUTOR will
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obtain a return authorization from iSecureTrac prior to
returning any defective or non-conforming Product
(collectively, "Defective Products"). DISTRIBUTOR will provide
iSecureTrac with a written description of the claimed defect.
Within ten (10) business days of its receipt of each warranty
claim, iSecureTrac shall issue and deliver to DISTRIBUTOR
either (i) a return authorization for each Defective Product,
or (ii) a written denial of such warranty claim, accompanied
by an explanation therefor ("Claim Denial"). Any warranty
claim not rejected by iSecureTrac in a Claim Denial timely
delivered to DISTRIBUTOR within the aforementioned time period
shall be deemed accepted by iSecureTrac on such date.
DISTRIBUTOR may contest any Claim Denial in its sole
discretion.
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6.4 Expedited Replacement. iSecureTrac will use its best efforts
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to ship Products, repaired or replaced under this warranty,
back to DISTRIBUTOR at such address specified by DISTRIBUTOR,
within the fastest time practicable.
6.5 Limitations. The foregoing warranty will not apply if the
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Product fails to function due to abuse, misuse, accident,
neglect, unauthorized repair, or causes other than ordinary
use after delivery.
THE ISECURETRAC WARRANTY STATED ABOVE IS GIVEN IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
7.0 PATENT INDEMNIFICATION
7.1 Scope. iSecureTrac will indemnify and hold DISTRIBUTOR
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harmless against any expense or loss resulting from any and
all claims that the Products or any part thereof infringe upon
any United States or Canadian patent, copyright, trademark or
other proprietary right. iSecureTrac agrees to defend any suit
or proceeding brought against DISTRIBUTOR which is based on
such claim.
7.2 Conditions. The above stated indemnity is subject to the
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following conditions:
(a) DISTRIBUTOR must promptly notify iSecureTrac in
writing of any claim of infringement and provide
iSecureTrac, at its request and at iSecureTrac's
expense, with the assistance, information and
cooperation necessary to defend against any such
claim or litigation;
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(b) DISTRIBUTOR must not make any admissions without
iSecureTrac's consent and must grant iSecureTrac sole
authority to defend or settle such claim;
(c) Any costs incurred or recovered in such litigation or
negotiation shall accrue to iSecureTrac's account;
and
(d) If a preliminary injunction or final judgment is
entered against DISTRIBUTOR's use or operation of any
Product because of any alleged infringement, or if in
iSecureTrac's opinion such an injunction or judgment
is likely, then iSecureTrac, at its own expense and
option shall (i) modify or replace the Product so
that it becomes non-infringing while providing
equivalent performance; or (ii) procure for
DISTRIBUTOR the right to continue to use and resell
Products; or (iii) in the event iSecureTrac has been
unable to achieve such procurement or modifications
despite its best efforts, to refund to DISTRIBUTOR
the price DISTRIBUTOR paid for such Product or
Products less such amount determined to be a
depreciation to fair market value by standard
accounting practices.
8.0 LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER DISTRIBUTOR OR ISECURETRAC BE LIABLE FOR (i)
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (ii) ANY DAMAGES
RESULTING FROM LOSS OF DATA, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS,
LOSS OF PROFITS, REVENUES OR USE ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED
HEREUNDER, REGARDLESS OF WHETHER DISTRIBUTOR OR ISECURETRAC, AS APPLICABLE, HAS
BEEN NOTIFIED IN ADVANCE OF SUCH DAMAGES. IN NO EVENT WILL ISECURETRAC'S
LIABILITY TO DISTRIBUTOR FOR ANY DAMAGES IN CONTRACT OR TORT EXCEED THE TOTAL
AMOUNT PAID BY THE DISTRIBUTOR FOR THE PARTICULAR PRODUCT OR SERVICE THAT CAUSES
SAID DAMAGES. THE REMEDIES PROVIDED FOR IN THIS AGREEMENT ARE THE SOLE AND
EXCLUSIVE REMEDIES FOR BOTH PARTIES.
ISECURETRAC SPECIFICALLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE USE
OF ANY SPECIFIC ITRACKER DEVICE OR THE COMMUNICATION OR LOSS OF COMMUNICATION
WITH ANY SUCH DEVICE OR ANY LOSS OF THE ISECURETRAC APPLICATION's ABILITY TO
TRACK OR CONTINUE TO TRACK SUCH ITRACKER DEVICE.
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DISTRIBUTOR hereby acknowledges that it understands that continuous tracking of
iTracker units is highly dependent on continuous availability of GPS satellites,
availability of cellular communications and other factors outside of the control
of iSecureTrac.
9.0 GOOD TITLE
iSecureTrac hereby warrants that it has good title to all Products
shipped to DISTRIBUTOR on the date of shipment. All Products shipped to
DISTRIBUTOR shall be free and clear from all liens, encumbrances and charges
which iSecureTrac may incur. Should iSecureTrac ship any Products to DISTRIBUTOR
which are subject to any liens, encumbrances or claims by third parties,
iSecureTrac shall promptly notify DISTRIBUTOR of actual and prospective claims
in writing and indemnify and hold DISTRIBUTOR harmless from all liability, cost
and expense which may result from such liens and claims. DISTRIBUTOR may, at its
sole discretion, pay and discharge any valid liens and claims against delivered
Products and set off the amount of such payments against any sums due
iSecureTrac hereunder.
10.0 SUPPORT SERVICES
iSecureTrac shall provide DISTRIBUTOR with the services described in
Attachment 2 hereto, at the rates listed, upon DISTRIBUTOR's submission of a
purchase order for such services.
11.0 NOTICES
Any notices required to be given hereunder will be given in writing and
sent to the other party, postage or transmission cost prepaid and properly
addressed, at the address indicated below:
To iSecureTrac:
iSecureTrac Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
Attn: Xx Xxxxxx, Xx.VP Sales and Marketing
To DISTRIBUTOR:
Premier Geografix LTD
Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx, XX0 0XX
Attn: Xxxxxx Xxxxxxxx
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Notices shall be deemed given when delivered in person or received via
registered mail or acknowledged facsimile transmission.
12.0 INFORMATION RELEASES
Except as may be required by law, prior to the disclosure or
dissemination of any publication, notice or press release by either party
regarding the subject matter of this Agreement, written consent must be obtained
from the other party as to content, means and timing of publication.
13.0 TERM AND TERMINATION
13.1 Term. The term of this Agreement shall be for two (2) years
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from the effective date written above provided that no firm
purchase orders hereunder are outstanding at such time. This
Agreement shall automatically be extended for an additional
one year term upon the anniversary date of the initial term or
any extension thereof, unless either party terminates the
Agreement, for any reason, upon 90 days written notice to the
other party. If such cancellation notice is given and firm
purchase orders hereunder are outstanding at the date of
cancellation of this Agreement, this Agreement shall continue
in effect until all Products specified in such purchase orders
have been shipped to DISTRIBUTOR hereunder.
13.2 Contract Termination. Either party may terminate this
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Agreement at any time upon the occurrence of: (a). The other
party liquidates or ceases to conduct business in the normal
course, or makes a general assignment of assets for the
benefit of creditors. (b). The other party is in default of
any of its obligations under this Agreement, and such default
is not cured within thirty (30) days from the date on which it
was notified in writing of such default, unless subsequently
waived in writing. For purposes of this paragraph, the term
"default of obligations" shall include, on the part of
DISTRIBUTOR, a breach of its representation described in
paragraph 2.6.
14.0 ARBITRATION
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14.1 Agreement to Arbitrate Disputes. DISTRIBUTOR and iSecureTrac
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hereby agree to resolve any controversy, claim or dispute
arising out of or relating to this Agreement, or breach
thereof, by binding arbitration in accordance with the Federal
Arbitration Act, 9 U.S.C.ss.ss.1 - 16, not state law. Disputes
may be heard and determined by a qualified private adjudicator
approved by both parties.
14.2 Arbitration Process. The decision of the arbitrator shall be
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final and binding. Judgment to enforce the decision or award
of the arbitrator may be entered in any court of competent
jurisdiction in Nebraska or any other State. Service of
process in connection with a demand for arbitration shall be
made by certified mail.
15.0 MISCELLANEOUS
15.1 Force Majeure. Neither party shall be liable for failure or
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delay in performance of its obligations under this Agreement
due to events of force majeure including, but not limited to
strikes, wars, acts of terrorism, revolutions, fires, floods,
explosions, earthquakes, other acts of God, government
regulations or other causes beyond its control.
15.2 Amendment. This Agreement may not be changed, amended or
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modified except by a writing executed by the parties hereto.
Terms and conditions, whether printed or written, stated in
any purchase order, acknowledgement, confirmation or invoice
pursuant hereto shall be of no force or effect to the extent
such terms would modify, add to or are inconsistent with the
terms and conditions described in this Agreement.
15.3 Captions. The captions contained herein are for convenience of
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reference only and shall not affect or be construed to affect
the meaning or the terms of this Agreement.
15.4 Binding Agreement. This Agreement shall inure to the benefit
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of and binding upon the parties hereto and their respective
successors and assigns.
15.5 Entire Agreement. This Agreement and attachments hereto
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represent the entire agreement and understanding between the
parties concerning the subject matter described herein. Any
other agreements or understandings between the parties
concerning the subject matter described herein, whether oral
or written, shall be of no force and effect. Specifically, the
parties hereto agree that the Previous Agreement between them
is hereby terminated.
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15.6 Severability. If any provision of this Agreement shall be
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invalid or unenforceable under the law of the jurisdiction
applicable to this Agreement, such invalidity or
unenforceability shall not invalidate or render unenforceable
the entire Agreement, but the rights and obligations of the
parties shall be construed as if the Agreement did not contain
the unenforceable provision or provisions.
15.7 Waiver. No delay or failure by either party to exercise or
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enforce at any time any right or provision of this Agreement
shall be considered a waiver thereof or of such party's right
thereafter to exercise or enforce each and every right and
provision of this Agreement. In order for a waiver to be
valid, it shall be in writing, signed by the waiving party,
but need not be supported by consideration.
15.9 Assignment. Neither party hereto shall have the right to
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assign this Agreement or any obligations or rights hereunder
to any third party without the prior written consent of the
other party. Any attempt to make said assignment without the
written permission of the other party shall be void.
15.10 Applicable Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the
State of Nebraska.
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16.0 CONFIDENTIALITY
SERVICE PROVIDER and iSecureTrac have executed a Joint Non-Disclosure
Agreement dated November 21, 2002, a copy of which is attached hereto as Exhibit
"A" and incorporated herein by this reference.
IN WITNESS WHEREOF, DISTRIBUTOR and ISECURETRAC have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SEE ATTACHMENTS
ISECURETRAC
By: /s/ Xxxxx X. Xxxxx
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President
DISTRIBUTOR
By: /s/ Xxxxx X. Xxxxx
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Managing Director
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AGREEMENT NO. PD-030306
ATTACHMENT 1
SINGLE PRODUCT PRICING
Product ID Product Description Unit Price
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IT2100nc iTracker 2100 personal tracking unit
with scheduled mapping capability X,XXX.XX
DISCOUNT SCHEDULE
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APPLIES TO ALL ORDERS TO BE DELIVERED WITHIN 12 MONTHS OF THE ORDER DATE.
Discounts apply only to the to the total prices of all Products listed on the
purchase order, and not service orders or other charges. Discounts are not
earned if delivery is not made within 12 months of the order date. Unearned
discounts may be billed to DISTRIBUTOR at such time and DISTRIBUTOR agrees to
pay such unearned discounts within 30 days of receipt of invoice.
Total Product Order Amount Eligible Product Discount
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1-100 0%
101-500 6%
501-1000 12%
1000+ 25%
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AGREEMENT NO. PD-030306
ATTACHMENT 2
SUPPORT SERVICES
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Service Description Fee
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TRAINING On-site training with DISTRIBUTOR designated personnel (up
to 8 persons per session), covering installation of
Bracelets, Personal Tracking Units, monitoring,
Establishing limiting parameters per iTracker unit,
Mapping and Reporting $1,000/day
iSecureTrac will also invoice DISTRIBUTOR for reasonable travel
expenses incurred by iSecureTrac personnel in providing on-site training,
including transportation, lodging and meals. Prior to scheduling on-site
training, iSecureTrac will submit a training agenda for DISTRIBUTOR's approval.
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NON-WARRANTY Products are repaired by iSecureTrac on a time
REPAIR SERVICE and materials basis. Hourly labor charge: $45.00
Handling charge for each Product: $10.00
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HOSTING Hosting DISTRIBUTOR's monitoring of each iTracker,
SERVICES electronically registered and activated as described
in iSecureTrac's Hosting Services Agreement, at the
per unit fee listed therein. Unless specifically
precluded by DISTRIBUTOR, iSecureTrac shall register
each iTracker unit upon shipment.
Hosting registration fee, per iTracker unit: $10.00
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