Exhibit 6.3
DISTRIBUTOR AGREEMENT
This Distributor Agreement is made and entered into this 17th day of March
2000 ("Effective Date"), by and between Traffic Technology, Inc., an Arizona
Corporation, ("TTI") and IMS Industries. ("Distributor"), a sole proprietorship.
RECITALS:
WHEREAS, TTI is in the business of manufacturing and selling the patented
Unilight products as shown in TTI's literature and incorporated herein by
reference ("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 an exclusive
distributor;
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 exclusive
distributor for the territory, as hereinafter defined, and Distributor hereby
accepts such appointment by TTI as a distributor of TTI Products.
2. DISTRIBUTOR TERRITORY. Distributor is hereby appointed as the exclusive
distributor to sell the Products of TTI in Australia and New Zealand
(Territory); and
2.1. Distributor hereby agrees not to make any sales whatsoever of the
types of Products now being sold by TTI in any other territory, without the
express written consent of TTI.
2.2. Distributor shall have the sole and exclusive right to appoint
any or more sub-distributors in its territory, however, the terms and conditions
of this Agreement shall bind such sub-distributors.
2.3. Distributor agrees that in the event the total purchases of
Products should fall below $25,000 during a calendar year quarter, beginning
with the fifth full calendar quarter after the date hereof, the exclusive right
to distribute the Products granted hereunder shall become a non-exclusive right,
effective the first day of the first month following the subject calendar year
quarter and shall be effective for the remainder of the term of this Agreement.
Said calendar quarter minimum sales are to be annualized carrying sales over the
minimum into each successive quarter.
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. 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. TTI shall not be required to deduct or withhold any payroll taxes out
of any payments made to Distributor.
3.1. Distributor shall provide its own vehicles, office space,
furniture, fixtures, equipment, clerical help and the like to perform its tasks
and obligations pursuant to this Agreement.
3.2. Each party understands that they are fully responsible to file
their own income tax return, corporate or otherwise, as independent contractors
of each other pursuant to Federal and Arizona State income tax laws.
3.3. Distributor shall maintain its own Worker's Compensation
insurance policy, and shall not be covered under TTI's worker's compensation
policy.
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 Distributor Price List. 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.
5. WARRANTIES.
5.1 All Products sold to Distributor shall be of good and careful
manufacture and shall be free of material defects in materials or workmanship.
Distributor shall notify TTI of any defects in materials or workmanship of any
Products within 60 days of receipt of such Products by Distributor in the
Territory. The sole liability of TTI shall be to promptly repair or replace
defective Products for which it is so notified, or at TTI's option, credit
Distributor's account for the purchase price of such Products.
5.2 In addition to the foregoing, all Products sold to Distributor
shall be warranted by TTI to customers of Distributor purchasing or receiving
Products, in accordance with TTI's express written warranties, if any, with
respect to the Products. Distributor may inform customers of the TTI warranties
and provide customers with copies of any manufacturer's warranty materials
provided by TTI. Distributor agrees that, with respect to its resale of the
Products, Distributor shall give or make no other express warranty as to quality
or merchantability other than may be made by TTI. TTI will issue to Distributor
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all necessary information and warranties, and other relevant information as to
the quality of the Products.
5.3 TTI will work directly with the Distributor to support its efforts
by assisting with sales, promotion, and lead generation and qualification, and
to provide technical expertise with respect to the Products.
5.4 TTI will periodically provide Distributor with sales and
promotional brochures and literature and information on advertising and warranty
programs.
6. COMMENCEMENT; TERM; AND TERMINATION.
6.1 This Agreement shall commence on the Effective Date as referred
above and will continue until terminated in accordance with Section 6.2.
6.2 This Agreement may be terminated as follows:
6.2.1. 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;
6.2.2. By agreement in writing by the parties to this Agreement;
6.2.3. Automatically upon the expiration of 5 years from the
commencement date of this Agreement, unless extended by mutual agreement;
6.2.4. By TTI at the end of any 12 consecutive month period
during which Distributor has not purchased any Products.
6.2.5. Assignment of this Agreement by Distributor without the
written consent of the other party;
6.2.6. Bankruptcy or insolvency of Distributor, which materially
affects the operation of its business hereunder; or
6.2.7. Failure of Distributor to timely pay its obligations
hereunder.
7. OBLIGATIONS OF TTI. TTI agrees to exercise its best efforts to have
available and to sell to Distributor reasonable requirements for the Products.
Orders that exceed $20,000 in total must be approved by the TTI as to delivery
time.
8. INSURANCE. Distributor agrees to indemnify and hold harmless TTI from
any claims arising out of the selling activities of Distributor.
9. NON-COMPETE DURING TERM. Distributor may engage in any other business
activity and carry any other products or lines of goods, so long as such
activities or products are not inconsistent with Distributor's status as a
distributor of TTI's Products.
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10. 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:
10.1. 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.
10.2. 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:
"DISTRIBUTOR"
Xxxx Xxxxxx
IMS Industries
0 Xxxxxxxxx Xx.
Xxxxxxxx, Xxxxxxxx
XXX 0000 Xxxxxxxxx
"TTI"
Xxxxxxx Xxxxxxx
Traffic Technology, Inc
0000 X. Xxxxx Xxxx, Xxxxx X-0
Xxxxxxxxxx XX 00000
10.3. 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.
10.4. 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.
10.5. 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
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hereunder, when so delivered, will have been) duly and validly executed on
behalf of such party.
10.6. 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.
10.7. 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.
10.8. 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.
10.9. 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.
10.10. 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.
10.11. 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.
10.12. 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 brought in Superior Court, Maricopa
County, Arizona, and for this purpose each party hereby expressly and
irrevocably consents to the jurisdiction of said court.
10.13. 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
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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.
10.14. 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.
10.15. 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.
10.16 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.
10.17 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes any prior verbal or written
agreement.
10.19. 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.
IMS INDUSTRIES TRAFFIC TECHNOLOGY INC.
/s/ XXXX XXXXXX /s/ XXXXXXX XXXXXXX
--------------------------- ---------------------------
XXXX XXXXXX XXXXXXX XXXXXXX
Its Owner Its President
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