EXHIBIT 10.24
*CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
DISTRIBUTORSHIP AGREEMENT
THIS EXCLUSIVE DISTRIBUTORSHIP AGREEMENT is made as of November 30,
2005 by and between Smart Energy Solutions, Inc., a corporation organized and
existing under the laws of the State of Nevada, United States, having its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 07011(the
"Manufacturer") and Superior Automotive Company, an Automotive Retail Specialist
Company organized and existing under the laws of Georgia, having its principal
place of business at 0000 Xxxx Xxx Xxxxxxx, Xxxxxxxx 000, Xxxxxxxx, XX 00000
(the "Distributor").
RECITALS
WHEREAS, Manufacturer is the exclusive owner and has all right, title
and interest to proprietary products currently referred to as the "Battery
Brain"; and
WHEREAS, Distributor desires to be appointed as the exclusive
distributor of the product and market segment in the territory set forth in
Exhibit A (the "Territory"), and Manufacturer has agreed to appoint Distributor
as its exclusive distributor on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the adequacy,
sufficiency and receipt of which are hereby acknowledged, the parties hereto
agree as follows:
1. Appointment of Distributor.
1.1 Appointment. Pursuant to the terms and conditions contained in this
Agreement, Manufacturer grants and Distributor accepts the exclusive right to
promote and sell the Battery Brain product (the "Product") in the Market Segment
and Territory.
1.2 Sole Distributorship. During the Term (as defined below),
Manufacturer shall not appoint any other person or entity as a distributor or
agent for the sale of the Product in the Market Segment and Territory
1.3 Alterations to Product. Manufacturer, at its option, subject to
giving ninety (90) days notice, may discontinue the manufacture and/or sale of
the Product, and may modify or alter the Product as Manufacturer, in its sole
discretion, deems appropriate.
2. Marketing and Sales.
2.1 Preliminary Marketing Plan; Business Plan. Prior to or
simultaneously herewith, Distributor has submitted to Manufacturer a preliminary
marketing plan, briefly summarizing its plan for the promotion, marketing and
distribution of the Product within the Term. Within thirty (30) days of the date
hereof, Distributor shall submit to Manufacturer a detailed business plan (the
"Distributor's Business Plan") of its promotion, marketing and distribution of
the Product within the Term, including without limitation, sales targets for
each quarter in the Term. The Manufacturer and Distributor shall agree to the
quotas and other milestones set forth in the Distributor's Business Plan.
2.2 Marketing Materials. All marketing catalogues, sales brochures,
manuals and all other information and material relating to the Product (the
"Marketing Materials") shall not be used by Distributor without first obtaining
the prior approval of Manufacturer. Distributor, at its expense, shall cause any
Marketing Materials provided by Manufacturer to be translated into the principal
language or languages of the Territory within thirty (30) days after the date of
receipt of such Marketing Materials.
2.3 Certain Marketing Obligations. In connection with the promotion and
marketing of the Products, Distributor shall
(a) make clear, in all dealings with customers and prospective
customers, that it is acting as distributor of the Products and not as agent of
Manufacturer;
(b) comply with all legal requirements from time to time in
force relating to the storage, distribution, and sale of the Products; and
(c) provide Manufacturer on a quarterly basis a detailed
report, in such form as Manufacturer may request, of all activity relating to
the Product during the period; and consult with Manufacturer for the purpose of
assessing the state of the market in the Territory.
2.4 Sales Organization.
(a) Distributor represents and warrants that the description
of its sales organization that has been provided to Manufacturer and attached
hereto as Exhibit B is true and accurate in all respects and fairly represents
the sales organization of Distributor.
(b) Distributor shall establish and maintain an adequate
organization for sales, and, where appropriate, after-sales service, with all
means and personnel as are necessary to ensure the fulfillment of its
obligations under this Agreement, including without limitation, meeting the
objectives set forth in the Distributor's Business Plan.
2.5 Sales Targets. During each year of the Term, Distributor shall purchase a
quantity of units of the Products equal to at least the guaranteed minimum
target (the "Guaranteed Minimum Target") for the applicable year as follows:
-2-
---------------------------------- ----------------------------------
Year Guaranteed Minimum Target
---------------------------------- ----------------------------------
1st Year of Term 2006 *
---------------------------------- ----------------------------------
2nd Year of Term 2007 *
---------------------------------- ----------------------------------
3rd Year of Term
---------------------------------- ----------------------------------
If at the end of the applicable year, the Guaranteed Minimum Target has not been
attained, Manufacturer shall be entitled, at its option, subject to giving ten
(10) days notice, to (1) terminate this Agreement, or (2) cancel Distributor's
exclusivity, or (3) reduce the extent of the Territory, or (4) increase the
prices of the Products. This right shall, however, be exercised in writing not
later than three (3) months after the end of the year in which the Guaranteed
Minimum Target has not been attained.
3. Purchase and Delivery of Products.
3.1 Purchase Order. Distributor shall order the Products from
Manufacturer by submitting to Manufacturer a purchase order (the "Purchase
Order") in the form approved by Manufacturer. Nothing in this Agreement shall
entitle Distributor to any priority of supply in relation to the Products as
against Manufacturer's other distributors or customers.
3.2 Precedence of Terms. Sales of the Products pursuant to the Purchase
Orders shall be governed by this Agreement and the Manufacturer's Standard Terms
of Sale (the "Standard Terms") as they may be in effect from time to time, which
may be changed by Manufacturer in its sole discretion. Manufacturer shall give
to Distributor notice in writing of any material change in such Standard Terms
prior to such change taking effect. To the extent that there is a conflict or
inconsistency between the terms of this Agreement and the Standard Terms, the
terms of this Agreement shall take precedence.
3.3 Additional Duties of Distributor. With respect to each Purchase
Order, Distributor shall be responsible at Distributor's cost and expense for:
(1) ensuring the accuracy of the Purchase Order; (2) providing Manufacturer with
any information necessary to enable Manufacturer to process the order; (3)
complying with applicable legal requirements in the Territory, including,
without limitation, labeling and marketing legal requirements; and (4) obtaining
any necessary governmental permits, licenses, certificates of origin, approvals,
and other requisite documents in respect of the importation of the Products into
the Territory and their resale in the Territory.
3.4 Delivery. As soon as practicable after Manufacturer's acceptance of
a Purchase Order, Manufacturer shall notify Distributor of the estimated
delivery date (the "Estimated Delivery Date") for the Products purchased.
Manufacturer shall use reasonable efforts to meet the Estimated Delivery Date,
but time of delivery shall not be of the essence and accordingly Manufacturer
shall have no liability to Distributor if, notwithstanding such efforts, there
is any delay in delivery. Manufacturer shall deliver the purchased Products at
Distributor's expense in accordance with the method specified in the Purchase
Order.
----------
* Omitted pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
-3-
3.5 Title; Risk of Loss. The title to any of the Products shall not
pass to Distributor until Manufacturer has received payment in full of Purchase
Order; provided, nevertheless, that the risk of loss of or damage to any of the
Products shall pass to Distributor from the time Manufacturer notifies
Distributor that the Products are available for collection or from the time of
delivery to the carrier at Manufacturer's premises, whichever is earlier.
3.6 Time Limit for Rejection or Revocation of Acceptance of the Goods.
Rejection or revocation of acceptance by Distributor of the Products must be
made within seven (7) days after delivery of the Products to Distributor. No
defective Products may be returned to Manufacturer unless first authorized in
writing by Manufacturer.
4. Payment for Products.
4.1 Prices. The prices for the Products to be further negotiated.
4.2 Transportation Costs. Distributor shall, in addition to the price,
be liable for arranging and paying all costs of transport and insurance. If
Manufacturer agrees at the request of Distributor to arrange for transport and
insurance as agent for Distributor, Distributor shall reimburse Manufacturer the
full shipping, handling, and other expenses thereof and all the applicable
provisions of this Agreement shall apply with respect to the payment of such
costs as they apply to payment of the price of the Products.
4.3 Taxes; Duties. All prices for the Products are exclusive of any
applicable taxes, including sales tax or any other value-added tax, for which
Distributor shall be additionally liable. Distributor shall pay costs and
expenses of obtaining any necessary governmental permits, licenses, approvals,
and other requisite documents in connection with the import or export of the
Products and any applicable duties, customs, tariffs, or other charges thereon.
4.4 Payment Method. Payment will be secured by letter of credit
and with full payment made net 60 days.
4.5 Failure to Pay. If Distributor fails to pay the price and other
amounts due for any Products prior to or on the date such payment is due,
Manufacturer shall be entitled (without prejudice to any other right or remedy
it may have) to:
(a) cancel or suspend any further delivery to Distributor;
(b) sell or otherwise dispose of any Products which are the
subject of any order by Distributor, whether or not appropriated thereto, and
apply the proceeds of sale to the overdue payment; and
(c) charge Distributor interest on the price at the rate of
the lesser of one and one-half (1.5%) per cent per month from the date the
payment became due until actual payment is made.
-4-
5. Resale by Distributor.
5.1 Generally. Distributor shall be entitled to sell, in its own name
and for its own account, the Products in the Market Segment and Territory.
Distributor shall have the right during the Term to describe itself as
Manufacturer's "Authorized Distributor" for the Products in the Market Segment
and Territory, but shall not hold itself out as Manufacturer's agent or as being
entitled to bind Manufacturer in any way. Distributor shall use its best efforts
to promote the sale of the Products in the Territory in accordance with the
Distributor's Business Plan and Manufacturer's policy and shall protect
Manufacturer's interests. Distributor agrees that all its sales efforts are to
be directed only to customers in the Territory.
5.2 Resale Prices. Distributor shall be entitled to charge its
customers the resale prices of the Products as it determines, provided that its
objectives set forth in the Distributor's Business Plan are achieved.
Distributor shall avoid such pricing policies as would clearly adversely affect
the image of the Products.
6. Manufacturer's Trademarks and Other Intellectual Property.
6.1 Authorization. Manufacturer hereby authorizes Distributor to use
Manufacturer's trademarks and trade names (collectively, the "Trademarks") in
the Territory solely on or in relation to the Products for the purposes only of
exercising its rights and performing its obligations under this Agreement. Such
authorization shall cease immediately upon the expiration or termination, for
any reason, of this Agreement; provided, however, that Distributor shall have
the limited right sell the Products in stock at the date of expiration of this
Agreement which bear the Trademarks.
6.2 Use of Trademarks. Distributor shall ensure that each reference to
and use of any of the Trademarks by Distributor is in a manner from time to time
approved by Manufacturer and accompanied by an acknowledgment, in a form
approved by Manufacturer, that the same is a trademark (or registered trademark)
of Manufacturer.
6.3 Prohibited Conduct. Distributor shall not:
(a) Make any modifications to the Products;
(b) Alter, remove or tamper with any Trademarks, numbers, or
other means of identification used on or in relation to the Products;
(c) Use any of the Trademarks in any way which might prejudice
their distinctiveness or validity or the goodwill of Manufacturer therein or in
any manner not previously approved by Manufacturer;
(d) Use in relation to the Products any trademarks other than
the Trademarks without obtaining the prior written consent of Manufacturer; or
(e) Use in the Territory any trademarks so resembling any
Trademark as to be likely to cause confusion or deception.
-5-
6.4 Rights in Trademarks. Except as provided in this Section 6,
Distributor shall have no rights in respect of any Trademarks used by
Manufacturer in relation to the Products or of the goodwill associated
therewith, and Distributor hereby acknowledges that, except as expressly
provided in this Agreement, it shall not acquire any rights in respect thereof
and that all such rights and goodwill are, and shall remain, vested in
Manufacturer. Distributor shall not register any Trademarks (or which are
confusingly similar to the Trademarks) in the Territory or elsewhere.
6.5 Enforceability of Intellectual Property Rights. Distributor shall
take all such steps as Manufacturer may reasonably require to assist
Manufacturer in maintaining the validity and enforceability of the intellectual
property rights of Manufacturer in the Territory provided that Manufacturer
shall reimburse Distributor for all costs or other liabilities arising from or
in connection with such steps which have previously been approved by Distributor
in writing.
6.6 Agreements. Distributor shall, at the request of Manufacturer,
execute such registered user agreements or licenses in respect of the use of the
Trademarks in the Territory in the name of the Manufacturer as Manufacturer may
request, provided that the provisions thereof shall not be more onerous or
restrictive then the provisions of this Agreement.
6.7 Protection of Intellectual Property. Distributor shall not do or
authorize any third party to do any act which would or might invalidate or be
inconsistent with any intellectual property rights of Manufacturer.
6.8 Notification of Infringement. Distributor shall promptly and fully
notify Manufacturer of any actual, threatened or suspected infringement in the
Territory of any intellectual property rights of Manufacturer which comes to
Distributor's attention, and of any claim by any third party so coming to its
attention that the importation of the Products into the Territory, or their sale
therein, infringes any rights of any other person, and Distributor shall at the
request and expense of Manufacturer do all such things as may be requested to
assist Manufacturer in taking or resisting any proceedings in relation to any
such infringement or claim.
6.9 Confidential Information. During the Term and after the expiration
of the Term, Distributor shall hold in strictest confidence and shall not
directly or indirectly disclose, use or publish any of the Confidential
Information (defined below) unless expressly authorized in writing by
Manufacturer. As used in this Agreement, the term "Confidential Information"
means all items, materials and information which belong to the Manufacturer and
are not generally known to the public, or which have been confidentially
provided to the Distributor. Confidential Information includes, but is not
limited to, this Agreement and the terms hereof, pricing information and
policies, information concerning: trade secrets (as defined by applicable law);
computer programs (code); software; research and development projects and
materials; the Distributor's Business Plan; methods of operation; technical
information; processes; formulas; compositions; systems; techniques; non-public
know-how of the Manufacturer or its customers; customer account information,
lists and data; estimating procedures; sources of supplies or materials;
marketing plans or strategies; the existence and contents of agreements;
financial information, data, statements or accounts; and all documentation,
reports and data (recorded in any form) relating to the foregoing. Confidential
Information does not include anything described above which is generally known
to the public, unless it became generally known through an act or failure to act
of Distributor, in which case it shall remain Confidential Information.
-6-
7. Term and Termination.
7.1 Term. The term of this Agreement shall be for one year, renewable
annually, commencing as of the date hereof, unless cancelled or terminated
earlier as provided in this Agreement (the "Term"). Distributor understands that
the Distributor's sales of the Products during each year of the Term shall be
reviewed at the end of such year and this Agreement may be terminated pursuant
to Section 2.5 should the Guaranteed Minimum Target for the applicable year not
be attained.
7.2 Termination.
(a) Manufacturer or Distributor shall be entitled to terminate
this Agreement by giving not less than sixty (60) days' written notice to
Distributor or Manufacture.
(b) Without prejudice to any other provision in this
Agreement, Manufacturer shall be entitled to terminate this Agreement by giving
not less than five (5) days' written notice to Distributor upon the occurrence
of any of the following:
(i) Distributor fails to perform its obligations
under the Distributor's Business Plan and such non-performance continues for
thirty (30) days after written notice giving full particulars of such
non-performance and requiring it to be remedied;
(ii) Distributor commits any breach of any of the
provisions of this Agreement and, in the case of a breach of a payment
obligation, fails to remedy the same within five (5) days after written notice
of such failure to pay, and in the case of a breach of any other obligation,
fails to remedy the same within thirty (30) days after receipt of a written
notice giving full particulars of the breach and requiring it to be remedied ;
(iii) Distributor goes into bankruptcy, moratorium,
receivership, liquidation, or anything analogous to any of the foregoing under
the law of any jurisdiction; or
(iv) Distributor ceases to carry on business or
Manufacturer reasonably believes that Distributor will be ceasing to carry on
business or otherwise be unable to perform its obligations to Manufacturer.
-7-
7.3 Obligations Upon Termination. Upon expiration of the Term for
any reason:
(a) Within thirty (30) days after the Term, Distributor shall,
at its own expense, return to Manufacturer all promotional material and other
documents and samples which have been supplied to it by Manufacturer which are
in Distributor's possession;
(b) At any time after the Term, Manufacturer, at its option,
shall be entitled (but not obliged) to buy from Distributor all or any part of
the inventory of the Products then held by Distributor at the price originally
paid by Distributor. Any Products not so purchased by Manufacturer can be sold
by Distributor in accordance with this Agreement within one-hundred eighty (180)
days after the Term.
(d) Distributor shall have no claim against Manufacturer for
compensation for loss of distribution rights, loss of goodwill or any similar
loss.
8. Covenant Not to Compete; Non-Solicitation.
8.1 Covenant Not to Compete. Distributor hereby covenants and agrees
that, during the Term, neither Distributor nor its Affiliates (hereinafter
defined) shall, directly or indirectly:
(a) represent, manufacture, market, or sell in the Territory
any products which are in direct competition with the Products;
(b) engage, invest, participate, or be interested in any
business which at any time currently or in the future competes with Manufacturer
(collectively, the "Restricted Business"), anywhere in the Territory; or
(c) have any interest in, own, manage, operate, control, be
connected with as a stockholder (other than as a stockholder of less than one
percent (1%) of the issued and outstanding stock of a publicly held
corporation), joint venturer, officer, director, agent, lender, representative,
partner, employee or consultant, or otherwise engage or invest or participate in
any Restricted Business;
8.2 Non-solicitation. Distributor hereby covenants and agrees that,
during the Term, and continuing until the one (1) year anniversary of the
expiration of the Term, neither Distributor nor its Affiliates (hereinafter
defined) shall, directly or indirectly:
(a) solicit or recruit, or attempt to solicit or recruit, for
employment or for independent contract in connection with any Restricted
Business operating in the Territory, any employee or independent contractor who
is or was employed or under contract with Manufacturer during the Term; or
(b) solicit the business of any customer or prospective
customer of Manufacturer's (i) whose needs became known to Distributor during
the term of this Agreement, or (ii) with whom Distributor has had dealings as a
result of this Agreement, wherein such solicitation involves any service or
product that is similar to or in competition with any service or product of
Manufacturer either existing or in the process of being developed at the time of
the termination of this Agreement;
-8-
8.3 Outside the Territory. Distributor shall not market, advertise, or
sell any Products or establish any branch or maintain any distribution depot for
distribution of the Products outside the Territory or outside its approved
market segment.
8.4 Modification. If any provision of this Agreement is held by any
court of competent jurisdiction to be unenforceable because of the scope,
duration or area of its applicability, a court of competent jurisdiction shall
have the right to modify such scope, duration or area or all of them so as to
render them enforceable, and such provision shall then be applicable in such
modified form.
8.5 Injunctive Relief. Distributor acknowledges that Manufacturer will
have no adequate remedy at law if Distributor or any of its Affiliates breaches
any covenant contained in Section 6 or Section 8. In the event of any such
breach or threatened breach, Manufacturer shall have the right, in addition to
any other remedy that it may have, to obtain in any court of competent
jurisdiction, injunctive relief to restrain any breach or threatened breach of
or otherwise to specifically enforce any of the covenants contained in Section 6
and/or Section 8, as the case may be.
8.6 Affiliate. The term "Affiliate", as used herein, shall be deemed to
mean, with respect to any Person, any Person directly related to such Person,
whether through blood or marriage, and any Entity directly or indirectly
controlled by such Person, through the ownership of all or any part of such
Entity; and, with respect to any Entity, any Person or Entity directly or
indirectly controlling, controlled by or under direct or indirect common control
with such Entity, through employment or ownership, in whole or in part. The term
"Person", as used herein, shall be deemed to mean an individual. The term
"Entity", as used herein, shall be deemed to mean a corporation, partnership,
association, trust, estate or other entity or organization.
9. Limited Product Warranty; Indemnification.
9.1 Limited Product Warranty.
(a) Manufacturer shall provide to the ultimate end-user (the
"Covered Person") that originally purchases the Products from Distributor or its
agents or sub-distributors a limited product warranty (the "Limited Warranty")
that the Product shall be free from defects in material and workmanship for a
period of thirty-six (36) months to consumer and lifetime to Distributor from
the date of purchase (the "Warranty Period"), subject to the conditions and
limitations set forth herein. The Limited Warranty shall be provided only to the
Covered Person and no other person. The Limited Warranty shall be void unless a
warranty registration card and proof of purchase, in a form approved by
Manufacturer, is completed by the Covered Person and mailed to Manufacturer
within thirty (30) days from the date of purchase. The sole and exclusive remedy
for defects in Products covered by this Limited Warranty shall be limited to the
correction of the defect by repair or replacement, at Manufacturer's option. The
Limited Warranty shall not apply to Products that have been subjected to
mishandling, misuse, neglect, improper or inadequate storage, improper testing,
improper installation, repair, alteration, damage, assembly, or processing that
alters physical or electrical properties. This Limited Warranty shall terminate
upon expiration of the Warranty Period.
-9-
(b) Limited Warranty Claim Procedure. If a Product is
defective, the Covered Person shall, during the Warranty Period, return the
product to Distributor, who shall inspect the returned Product for defects. If
Distributor reasonably believes that the returned Product is defective and is
covered under the Limited Warranty, it shall forward the returned product to
Manufacturer for repair or replacement. If a Product is returned to Manufacturer
pursuant to the Limited Warranty six (6) or more months after the date of
delivery by Manufacturer to Distributor, Distributor shall pay to Manufacturer a
warranty fee equal to twenty percent (20%) of the price paid for the Product by
Distributor. Manufacturer shall determine in its sole discretion whether to
repair or replace any defective product covered by this Limited Warranty.
Distributor shall prepay the cost of shipping the product to Manufacturer and
bear the risk of loss while the product is in transit. Manufacturer shall pay
the shipping charges to return the product to Distributor and bear the risk of
loss during transit, unless Manufacturer determines that the defect is not
covered by the Limited Warranty. In the event that Distributor or Manufacturer
determines that a returned product is not covered by the Limited Warranty, it
shall immediately notify the Covered Person and request instructions regarding
disposition.
(c) IN NO EVENT WILL MANUFACTURER BE LIABLE FOR ANY INCIDENTAL
OR CONSEQUENTIAL DAMAGES TO DISTRIBUTOR OR DISTRIBUTOR'S CUSTOMERS. THE LIMITED
WARRANTY TO COVERED PERSONS IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
9.2 Indemnity. Distributor shall indemnify and hold harmless
Manufacturer and its Affiliates, officers, directors, stockholders, employees,
and agents, and the successors and assigns of all of them (the "Indemnified
Parties"), and shall reimburse the Indemnified Parties for, any loss, liability,
claim, damage, expense (including, but not limited to, costs of investigation
and defense and attorneys' fees) directly or indirectly arising from or in
connection with (a) any failure by Distributor to perform or comply with any
agreement, covenant or obligation in this Agreement, (b) any claim made at any
time by any governmental authority with respect to the business of Distributor
and the marketing, distribution, or sale of the Product; and (c) any warranty
claim pursuant to Section 9.1 hereof, if the Product that is asserted to be
defective has been subjected by Distributor to mishandling, misuse, neglect,
improper or inadequate storage, improper testing, repair, alteration, damage,
assembly, or processing that alters physical or electrical properties. This
Section 9.2 shall survive the expiration of the Term.
-10-
10. Miscellaneous.
10.1 Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given (a) if by personal
delivery, when so delivered, (b) if mailed, two (2) business days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to the intended recipient as set forth on the first page
of this Agreement, (c) if sent through an overnight delivery service in
circumstances to which such service guarantees next day delivery, the day
following being addressed to the intended recipient as set forth on the first
page of this Agreement; or (d) if given by facsimile, once such notice is
transmitted to the facsimile number specified in writing by the intended
recipient for such purpose and the appropriate answer back or telephonic
confirmation is received. Any party may change the address to which notices,
requests, demands, claims and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.
10.2 Choice of Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of New Jersey, United States,
without giving effect to principles of conflicts of law.
10.3 Jurisdiction. The parties hereby irrevocably consent to the in
personam jurisdiction of the state or federal courts located in the state of New
Jersey, United States, in connection with any action or proceeding arising out
of or relating to this Agreement or the transactions and the relationships
established thereunder. The parties hereby agree that such courts shall be the
venue and exclusive and proper forum in which to adjudicate such matters and
that they will not contest or challenge the jurisdiction or venue of these
courts.
10.4 WAIVER OF ANY AND ALL RIGHTS TO A TRIAL BY JURY. ALL PARTIES TO
THIS AGREEMENT UNCONDITIONALLY, IRREVOCABLY, AND EXPRESSLY WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING, SUIT, COUNTERCLAIM, OR CROSS-CLAIMS
ARISING DIRECTLY OR INDIRECTLY IN ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT, OR OTHERWISE) IN ANY WAY ARISING OUT OF OR OTHERWISE RELATING TO THIS
AGREEMENT OR TRANSACTIONS OR THE RELATIONSHIPS ESTABLISHED THEREUNDER. ALL
PARTIES CONFIRM THAT THE FOREGOING WAIVER OF A TRIAL BY JURY IS INFORMED AND
FREELY MADE.
-11-
10.5 Entire Agreement. This Agreement and the Annexes attached hereto
set forth the entire agreement and understanding of the parties in respect of
the transactions contemplated hereby and supersedes all prior or contemporaneous
agreements, arrangements and understandings of the parties relating to the
subject matter hereof. No representation, promise, inducement, waiver of rights,
agreement or statement of intention has been made by any of the parties which is
not expressly embodied in this Agreement, such other agreements, notes or
instruments related to this transaction executed simultaneously herewith, or the
written statements, certificates, schedules or other documents delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby.
10.6 Assignment. Except as permitted in Section 2.4, Distributor's
rights and obligations under this Agreement shall not be assigned or delegated,
by operation of law or otherwise, without Manufacturer's prior written consent,
and any such assignment or attempted assignment shall be void, of no force or
effect, and shall constitute a material default by such party.
10.7 Amendments. This Agreement may be amended, modified, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by all of
the parties hereto or, in the case of a waiver, by the party waiving compliance.
10.8 Waivers. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other term, covenant, representation or
warranty of this Agreement.
10.9 Counterparts; Fascimile Signatures. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Signatures transmitted by facsimile shall have the same force and
effect as original signatures.
10.10 Survival. All covenants and agreements of the parties contained
herein which are to be performed after the expiration of the Term shall survive
the expiration of the Term.
10.11 Waiver of rights to set-off, counterclaim, or cross-claim.
Distributor absolutely, unconditionally, and irrecovably waives any rights to
assert any counterclaim, set-off, or cross-claim of any kind with respect to any
litigation based on this Agreement in any action or proceeding brought by
Manufacturer to enforce the performance of this Agreement.
-12-
10.12 Interpretation. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. Reference to any agreement, document, or
instrument means such agreement, document, or instrument as amended or modified
and in effect from time to time in accordance with the terms thereof.
IN WITNESS WHEREOF, the parties have duly executed this Distributorship
Agreement as of the date first above written.
DISTRIBUTOR:
Name: Superior Automotive Company
By: Xxxxxxx X. Xxxxx
Title: President
Signature: /s/ Xxxxxxx X. Xxxxx
SMART ENERGY SOLUTIONS, INC.
Name: Xxxx Xxxxxx
Title: CEO
Signature: /s/ Xxxx Xxxxxx
November 30, 2005
-13-
EXHIBIT A
DESCRIPTION OF MARKET SEGMENTS AND TERRITORY
New Auto Dealerships exclusive of OEM's in the US and Canada.
Manufacturer will use it's best efforts to introduce the Distributor to
aftermarket of OEM's
-14-
EXHIBIT B
DESCRIPTION OF SUPERIOR AUTOMOTIVE COMPANY
To be provided with marketing plan.
-15-
