Exhibit 10.34
[FIELDWORKS LETTERHEAD]
INTERNATIONAL DISTRIBUTOR AGREEMENT
This International Distributorship Agreement ("Agreement") is made as of
the date of execution by FieldWorks, as recorded on Page 7, ("Execution Date")
by and between FieldWorks, Incorporated, a corporation organized under the laws
of the State of Minnesota, USA, having an office at 0000 Xxxxxxx Xxxxx, Xxxx
Xxxxxxx, XX 00000 XXX (hereinafter "FieldWorks"), and
Company Name:
Address:
Address:
Address:
Phone: FAX:
Type of company (i.e., corporation, etc.):
Organized under the laws of:
(hereinafter "Distributor").
WITNESSETH:
WHEREAS, FieldWorks manufactures and sells the Products as hereinafter defined;
and
WHEREAS, Distributor is engaged in business in the Territory as hereinafter
defined and wishes to distribute the Products in the Territory, and FieldWorks
is willing to authorize Distributor to do so, all on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, FieldWorks and Distributor hereby agree as follows:
1. Appointment
1.1 FieldWorks hereby appoints and authorizes Distributor as an authorized
distributor for the products listed on Annex A ("Products") attached hereto
and made a part hereof, in the Territory described on Annex B ("Territory")
attached hereto and made a part hereof and Distributor accepts such
appointment, all subject to the terms and conditions of this Agreement.
1.2 During the term of this Agreement, FieldWorks shall refer inquiries it
receives from the Territory regarding Products to Distributor.
2. Undertakings of Distributor
2.1 During the term of this Agreement, Distributor: (i) shall not
manufacture or distribute goods which compete with the Products; (ii) shall
obtain the Products for resale only from FieldWorks; and (iii) shall
refrain, outside the Territory and in relation to the Products, from
seeking customers, from establishing any branch, and from establishing any
distribution depot without prior written approval of FieldWorks.
Page 1 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
3. Term of Agreement
3.1 This agreement shall commence as of the Execution Date and shall
terminate in one (1) year. This agreement may be renewed for an additional
one (1) year term upon written agreement of the parties. If the parties
fail to agree in writing upon a renewal of this agreement prior to the
expiration of this agreement, this agreement shall automatically terminate.
3.2 Either party may terminate this agreement, with or without cause, on a
thirty (30) days prior written notice. In the event of termination,
FieldWorks agrees to grant Distributor the right to sell off all existing
inventory of FieldWorks products.
3.3 Upon cancellation or termination FieldWorks shall permit Distributor to
sell Distributor's existing inventory of Products during a period of three
(3) months following the date of cancellation or termination. Upon such
cancellation or termination FieldWorks shall have no further obligation
toward Distributor other than delivery of Products pursuant to orders by
Distributor accepted by FieldWorks prior to the effective date of the
cancellation or termination, and Distributor hereby agrees to assert no
claim beyond that.
4. Distributor's Status and Responsibility
4.1 Distributor is an independent contractor and is not an agent, employee
or legal representative of FieldWorks and all persons engaged by
Distributor shall be Distributor's employees, legal representatives or
agents but not those of FieldWorks. Distributor is not authorized to do
business in FieldWorks' name or to otherwise obligate FieldWorks in any
way.
4.2 Distributor shall use its best efforts in the development, promotion,
sale and service of FieldWorks' Products in the Territory.
4.3 Distributor will provide and maintain at its own expense facilities and
qualified personnel sufficient to provide a high standard of service to its
customers in selling, and providing maintenance service for, Products in
the Territory.
4.4 Distributor will maintain in the Territory an adequate inventory of
service parts for Products to promptly perform maintenance service for its
customers; and will provide warranty service for the Products in the
Territory.
4.5 Distributor will promote the Products to inform Distributor's customers
and potential customers of the application, kind, quality and manufacturer
of the Products and will cooperate with FieldWorks in any advertising or
promotion programs undertaken by FieldWorks with respect to the Products.
Page 2 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
4.6 Products subject to this Agreement shall either be: (i) purchased by
Distributor from FieldWorks for resale by Distributor in the original
packages in which they were received from FieldWorks; or (ii) purchased by
Distributor from FieldWorks and repackaged by Distributor provided that
written authorization is obtained from FieldWorks in advance of repackaging
and sale and the parties mutually agree on the packaging to be utilized by
Distributor.
4.7 The parties will consult to develop a written marketing plan for
marketing Products in the Territory; and Distributor will use its best
efforts to comply with such marketing plan in its sales of Products in
Territory.
4.8 Distributor will make no representations or warranties with respect to
the Products except as expressly authorized in writing by FieldWorks.
4.9 Distributor agrees to furnish sales forecasts, market surveys, reports
of competitive conditions, and any other data reasonably requested by
FieldWorks which are pertinent to proper development of the market.
Distributor shall maintain records of its sales of Products, and permit
FieldWorks to have access to those records upon FieldWorks' request.
4.10 Distributor will avoid activities or practices that may injure the
reputation of FieldWorks or the Products.
4.11 Distributor will comply with all applicable laws and regulations
during the course of performance of this Agreement and in related
activities.
4.12 Distributor will defend, indemnify and hold harmless FieldWorks from
any and all claims, demands, suits or liability arising out of any acts or
omissions of Distributor, its employees, appointees, legal representatives
and agents, whether based upon breach of contract, negligence, strict
liability or otherwise.
5. Price and Payment Terms
5.1 FieldWorks shall sell the Products to the Distributor at FieldWorks'
then current list price (EXW FieldWorks' United States factory or
warehouse) as set forth on the then current price list, less the discount
set forth on Annex C attached hereto and made a part hereof, or as
otherwise quoted to Distributor.
5.2 Distributor to pay for products purchased under this agreement at the
then current FieldWorks International Price List minus the discount set
forth under Annex C. Payment terms are Net 45 from date of shipment by
FieldWorks to Distributor upon approved credit by FieldWorks.
5.3 Unless otherwise mutually agreed, Distributor shall pay for Products in
US currency by means of an irrevocable letter of credit, payable against
shipping documents, issued or confirmed by a bank satisfactory to
FieldWorks.
Page 3 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
5.4 Distributor shall pay any applicable sales tax, export tax, import tax,
value added tax, duties and any similar taxes and charges; and shall be
responsible for shipment of Products and all expenses thereof after they
are delivered to Distributor EXW FieldWorks' United States factory or
warehouse.
5.5 Distributor's sole compensation hereunder shall consist of the
difference between Distributor's purchase price paid to FieldWorks and the
selling price received from its customers.
6. Technical and Sales Assistance
6.1 FieldWorks will furnish Distributor with samples of technical and sales
information in the English language regarding the Products.
6.2 FieldWorks shall provide training classes from time to time at its
facility in Eden Prairie, Minnesota, USA for Distributor's personnel. Such
classes shall be free of charge, but Distributor shall pay all costs of
attendance, including travel and lodging.
6.3 If, pursuant to this Agreement, FieldWorks discloses to Distributor
information which is designated as confidential, Distributor shall retain
such information in strict confidence and not use it or disclose it except
as expressly agreed in writing by FieldWorks or except if and to the extent
that it becomes generally known through no fault of Distributor.
7. Orders and Warranty
7.1 Orders will be binding upon FieldWorks only when accepted and approved
in writing by an authorized representative of FieldWorks. All such orders
will be for delivery EXW FieldWorks' factory or warehouse in the USA and
will be subject to FieldWorks' standard terms and conditions in effect as
of date of shipment, to the extent that such terms and conditions do not
disagree or conflict with this Agreement, in which case this Agreement
shall govern.
7.2 FieldWorks shall extend to Distributor its published limited warranties
for Products as the same may be modified by FieldWorks from time to time,
and makes no other warranty, express or implied. Distributor's sole remedy
against FieldWorks with respect to Products shall be their repair or
replacement in accordance with FieldWorks' applicable limited warranty
policy.
8. Patents and Industrial Property Rights
8.1 FieldWorks reserves the right to suspend performance or to cancel this
Agreement if it believes that the manufacture, sale or use of any Products
sold hereunder may infringe any United States or foreign patent, or other
industrial property right.
Page 4 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
9. Trademarks and Trade Names
9.1 Distributor agrees to submit to FieldWorks for prior approval examples
of promotional literature, advertising, and technical narrative in which
any FieldWorks trademark, trade name, slogan, or logo is used. Distributor
shall not register or use any of FieldWorks' trademarks, trade name,
slogans, logos or packaging designs (or any similar trademarks, trade
names, slogans, logos or packaging designs) except as specifically
authorized in writing in advance. Sale by Distributor of Products in the
packages in which they were shipped shall not be considered use for this
purpose.
9.2 In the event that it becomes necessary or desirable for FieldWorks to
prove use of any of its trademarks, trade names, slogans, or logos which
appear on the Products, Distributor will cooperate with FieldWorks in
obtaining such proof, and upon request will provide FieldWorks with such
evidence of use as the authorities in the Territory may require. For this
purpose, Distributor shall retain such evidence of use for at least three
(3) years from the date of receipt or origination of such evidence by
Distributor. Distributor shall assign to FieldWorks, without compensation,
all rights of record or otherwise that Distributor has obtained or may
obtain with respect to any FieldWorks trademark, trade name, slogan, logo
or packaging design and shall take such other action as FieldWorks may
require in order to confirm FieldWorks' ownership thereof.
9.3 Upon cancellation or termination of this Agreement, Distributor shall
immediately stop using any of FieldWorks' trademarks, trade names, slogans,
logos or packaging designs and any language stating or suggesting that
Distributor is a distributor for the Products.
10. Excuses for Nonperformance
10.1 No liability shall result from the delay in performance or
nonperformance (other than the obligation to pay for Products shipped)
caused by force majeure or circumstances beyond the reasonable control of
the party affected, including, but not limited to, Acts of God, fire,
flood, war, embargo, any United States or foreign government regulation,
direction or request, accident, labor trouble, or shortage of, or inability
to obtain material, equipment, or transport.
11. Cancellation
11.1 Either party may cancel this Agreement upon at least thirty (30) days
written notice should the other breach any of the provisions of this
Agreement and fail to cure such breach within thirty (30) days of receiving
written notice thereof.
11.2 If Distributor fails to meet or establish agreed upon quarterly sales
goals or if Distributor fails to promptly follow up on any and all sales
leads and report to FieldWorks the outcome of such follow up, FieldWorks
may cancel this Agreement by written notice.
Page 5 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
11.3 If Distributor enters or is placed in bankruptcy, receivership or
liquidation, is nationalized, becomes insolvent or makes an assignment for
the benefit of its creditors, FieldWorks may cancel this Agreement by
written notice.
11.4 FieldWorks may immediately cancel this Agreement upon a change in the
ownership, management or geographical location of Distributor which
FieldWorks, in its sole discretion, deems adverse to its interests.
11.5 Neither party, by reason of the cancellation or termination of this
Agreement in conformity with the terms thereof or the non-renewal of this
Agreement for any or all of the Products, shall be liable to the other
party for compensation, reimbursement or damages because of the loss of
goodwill, anticipated sales or prospective profits, or because of
expenditures, investments or other matters related to the performance
hereunder or to the business of the parties.
11.6 Neither cancellation nor termination shall relieve either party from
the duty to discharge in full all obligations accrued or due prior to the
date thereof.
12. Assignability
12.1 Except as otherwise provided herein, neither party may assign this
Agreement or any right or obligation under this Agreement and any purported
assignment shall be void and ineffective. FieldWorks may assign its rights
and delegate its performance hereunder, in whole or in part, to any
affiliated company or to any successor in interest or transferee of that
portion of FieldWorks' business that is directly involved in the
performance of this Agreement.
13. Applicable Law and Arbitration
13.1 The construction, performance and completion of this Agreement shall
be governed by the laws of the State of Minnesota, USA, including the
Uniform Commercial Code in effect on the Execution Date of this agreement.
The UN Convention on Contracts for the International Sale of Goods shall
not apply to this Agreement.
13.2 Any dispute arising out of or relating to this Agreement shall be
submitted to arbitration pursuant to the Commercial Arbitration Rules of
the American Arbitration Association by three arbitrators appointed in
accordance with those Rules. The decision of the arbitrators shall be
binding and conclusive upon each party and may be enforced in any court of
competent jurisdiction. The arbitration will be conducted in English and
the arbitrators shall apply the substantive law of the jurisdiction in
Article 13.1 above, except that this arbitration provision shall be
governed by the United States Federal Arbitration Act. The site of
arbitration shall be in Minneapolis, Minnesota, USA. The costs and expenses
of any such arbitration, including reasonable attorneys' fees, shall be
borne as determined by the arbitrators.
Page 6 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
14. Notice
14.1 Any notice required or permitted herein may be hand delivered, sent by
facsimile transmission, or sent by postage prepaid registered airmail -
return receipt requested, properly addressed to the party to be notified at
the address set forth above or at the last known address given by such
party to the other party and shall be deemed delivered when hand delivered
or transmitted by facsimile, or when sent by registered airmail, on the
earlier of the date received or ten (10) days after the date mailed.
15. General Conditions
15.1 This Agreement shall be executed in duplicate but shall not be binding
upon FieldWorks until a copy, signed by the Distributor, is executed by
FieldWorks.
15.2 If registration of this Agreement with governmental authorities is
required by the laws of the Territory, Distributor shall timely comply with
such registration requirements and provide proof of such compliance to
FieldWorks.
15.3 This Agreement supersedes all existing agreements or arrangements by
and between FieldWorks and Distributor relating to the subject matter
hereof, whether written or oral, and all such prior agreements or
arrangements are hereby deemed terminated by mutual consent of the parties.
15.4 A waiver of a breach of any of the provisions of this Agreement shall
not be deemed to be a waiver of any succeeding breach of the same or any
other provision of this Agreement.
15.5 This Agreement is entered into in the English language. If a
translation of this Agreement into any other language is required or
desired for any reason, the English text shall govern in all matters
involving the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives below.
FIELDWORKS INCORPORATED
------------------------------------------------ -------------------------------------------------
(Distributor name)
------------------------------------------------ -------------------------------------------------
(signature of Authorized Representative) (signature of Authorized Representative)
------------------------------------------------ -------------------------------------------------
(print Authorized Representative name) (print Authorized Representative name)
------------------------------------------------ -------------------------------------------------
(title) (title)
------------------------------------------------ -------------------------------------------------
(Execution Date) (date)
Page 7 of 7
INTERNATIONAL DISTRIBUTOR AGREEMENT
ANNEX A
THE PRODUCTS
INTERNATIONAL DISTRIBUTOR AGREEMENT
ANNEX B
TERRITORY
INTERNATIONAL DISTRIBUTOR AGREEMENT
ANNEX C
PRICING
INTERNATIONAL DISTRIBUTOR AGREEMENT
ANNEX D
Modifications, Amendments, and/or Waivers
The modifications, amendments, and/or waivers, as delineated below, shall apply
to this Agreement:
(Reference Section numbers (e.g., "Section 1.2", "Section 2.1 (last
sentence)", Section 2.3 (3rd sentence, etc.), and describe changes in terms
of "Add:", "Replace:", "Delete:", "Change to read:", "Add at the end of
Section:", etc.).
