Exhibit 10.36
[FIELDWORKS LETTERHEAD]
OEM AGREEMENT
This non-exclusive OEM Agreement ("Agreement") is made as of the date of
execution by FieldWorks, as recorded on Page 6, ("Execution Date") by and
between
Company Name:
Address:
City, State, Zip Code:
Voice: FAX:
("OEM"), and FieldWorks, Incorporated, located at 0000 Xxxxxxx Xxxxx, Xxxx
Xxxxxxx, XX 00000-0000 ("FieldWorks").
OEM desires to sell certain products manufactured and sold by FieldWorks
and FieldWorks desires to have OEM act as its non-exclusive OEM in the sale of
such products. In consideration of these promises and the covenants contained in
this Agreement, the parties agree as follows.
1. Appointment of OEM
1.1 FieldWorks hereby appoints OEM as a non-exclusive OEM for
FieldWorks' products set forth on Exhibit A (the "Products") as FieldWorks
may amend from time to time upon notice to OEM. OEM shall be entitled to
sell the Products only in the territory and/or markets defined in Exhibit
B.
1.2 OEM agrees to use its best efforts to promote, sell, support and
maintain the Products as provided in this Agreement and agrees to abide by
all reasonable rules and regulations FieldWorks establishes for its OEM
from time to time. OEM shall sell the Products only as bundled with
additional application software or system hardware.
2. Ordering, Delivery, Prices and Payments
2.1 OEM shall purchase such number of Products to meet the annual
minimum quota set forth in Exhibit C. The failure to meet such annual
minimum quota shall be a material breach of this Agreement.
2.2 OEM shall purchase the Products on the annual ship schedule set
forth as Exhibit C. Any change to the annual ship schedule shall be subject
to the prior written approval of FieldWorks. OEM shall be entitled to use
its standard form of purchase order for such orders; however, any terms in
addition or contrary to the terms of this Agreement shall not apply. All
orders shall be in minimum lot sizes of five (5) units.
2.3 The prices to be paid by OEM for Products purchased under this
Agreement shall be the prices established by FieldWorks defined in Exhibit
D. The prices are to be determined by the annual minimum quota outlined in
Exhibit C. FieldWorks may increase prices at any time by providing OEM with
at least (30) days prior written notice.
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OEM AGREEMENT
2.4 All deliveries of Products shall be FOB FieldWorks' facilities by
a carrier of FieldWorks' choice, unless otherwise agreed in writing by
FieldWorks and OEM. Title to the Products and risk of loss shall pass to
OEM upon delivery to such carrier. FieldWorks shall not be responsible for
any delay in shipping the Products.
3. Marketing and Business Obligations
3.1 OEM shall provide all after sales support for its customers for
any Products or repairs that are not covered by FieldWorks' warranty. OEM
shall maintain a sufficient staff trained to support and maintain the
Products.
3.2 OEM shall communicate regularly with FieldWorks regarding its
sales and marketing activities relating to the Products, including
providing, on a monthly basis or as requested by FieldWorks, inventory and
sales status, and the name, address, and phone number of all sales to
customers along with the corresponding serial number, model number and date
of unit purchase. OEM shall assist FieldWorks in tracing and locating
Products upon request. To facilitate communications, OEM shall maintain at
its facilities an industry-standard facsimile unit.
3.3 OEM shall perform its obligations under this Agreement in
compliance with all applicable laws. OEM shall not conduct sales or
marketing activity outside the territory/market defined in Exhibit B and
nor make any representation or warranty relating to any Product or to
FieldWorks, except as authorized by FieldWorks. OEM shall not export the
Products (or knowingly permit any third party to do so) outside of the
United States without the prior written consent of FieldWorks.
3.4 Except as permitted in Section 1.2, OEM shall not modify the
Products in any manner and shall maintain Products in its inventory in a
clean, safe and professional condition. OEM shall not reverse engineer,
decompile or disassemble the Products and shall not knowingly allow any
other person to do so.
3.5 OEM agrees to, and hereby does, indemnify FieldWorks, its
officers, directors, employees and agents against and hold each of them
harmless from any and all claims, causes of action, damages, liabilities,
costs and expenses (including attorneys fees) arising from any breach by
OEM of any provision of this Agreement.
3.6 FieldWorks may from time to time review OEM's performance under
this Agreement. Upon request by FieldWorks, OEM shall provide FieldWorks
with relevant records and/or access to OEM's facility (during normal
business hours) to perform such review.
4. Warranty
4.1 FieldWorks warrants the Products to OEM and its customer for a
period of one (1) year from the date of shipment to OEM pursuant to the
terms of FieldWorks' then current standard product warranty. In order for
the warranty to transfer to the customer, OEM must provide to FieldWorks
the customer identification information identified in Section 3.2.
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OEM AGREEMENT
4.2 The warranty set forth in Section 4.1 is intended for the benefit
of OEM and OEM's customers. All claims made hereunder shall be made by OEM
or by OEM's customer through OEM.
4.3 THE WARRANTY SET FORTH IN SECTION 4.1 AND IN FIELDWORKS' STANDARD
WARRANTY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE
HEREBY DISCLAIMED AND EXCLUDED BY FIELDWORKS, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE
AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF FIELDWORKS FOR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE DISTRIBUTION, USE, REPAIR OR
PERFORMANCE OF THE PRODUCTS.
5. Trademarks
5.1 FieldWorks grants to OEM a non-exclusive, nontransferable,
royalty-free license to use FieldWorks' trademarks and trade names solely
in connection with the distribution, promotion, advertising and maintenance
of the Products and in accordance with FieldWorks' standards and
instructions. OEM shall not use any other marks or trade names in
connection with the marketing and distribution of the Products without the
prior written consent of FieldWorks. All use of FieldWorks' trademarks and
tradenames shall be subject to FieldWorks' prior written approval and
FieldWorks may, from time to time, inspect and monitor OEM's use of the
FieldWorks trademarks.
5.2 OEM is not granted any right, title or interest in such trademarks
other than the foregoing limited license, and OEM shall not use any
FieldWorks trademarks as part of OEM's corporate or trade name or permit
any third party to do so. OEM shall not register FieldWorks' trademarks or
trade names without FieldWorks' prior written authorization, nor adopt, use
or register any words, phrases or symbols which are identical to or
confusingly similar to any of FieldWorks' trademarks. Upon termination or
expiration of this Agreement, OEM shall cease and desist from use of
FieldWorks' trademarks and trade names in any manner.
5.3 OEM shall not remove or alter any patent numbers, trade names,
trade marks, notices, serial numbers, labels, tags, copyright notices or
other identifying marks, symbols or legends affixed to any Products,
documentation, containers or packages, without the prior written consent of
FieldWorks.
5.4 OEM shall promptly notify FieldWorks in writing of any
unauthorized use of FieldWorks' trademarks or similar marks which may
constitute an infringement or passing off of FieldWorks' trademarks and
shall cooperate with FieldWorks in any legal action taken by FieldWorks.
FieldWorks reserves the right in its sole discretion to institute any
proceedings against such third party infringers.
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OEM AGREEMENT
6. Term and Termination
6.1 Unless earlier terminated as provided in this Agreement, this
Agreement shall commence as of the Execution Date and shall terminate one
(1) year thereafter. This agreement may be renewed for additional one (1)
year terms upon written agreement of the parties which agreement must
include mutual agreement as to the annual minimum sales quota and the ship
forecast for such renewal term. 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 expire and terminate without further
notice to either party.
6.2 Either party can terminate this Agreement, with or without cause,
on a thirty (30) days' prior written notice to the other party.
6.3 Within thirty (30) days of the termination of this Agreement, OEM
shall provide to FieldWorks:
o A list of all OEM's customers and the destination of all Products
sold, and
o Complete information regarding any negotiations ongoing for the
sale of Products, and
o A list of all OEM's customers whose units are still under
warranty.
6.4 Upon termination or expiration of this Agreement, unless
FieldWorks terminates for OEM's material breach, OEM shall have the right
to distribute its then existing inventory of Products during the three (3)
month period following such termination or expiration, and OEM shall
thereafter cease selling, leasing or distributing the Products. If this
Agreement is terminated for OEM's material breach, OEM shall cease selling,
leasing or distributing the Products as of the effective date of such
termination. Sections 3.3, 4 and 7 shall survive any termination or
expiration of this Agreement.
7. Confidentiality
7.1 OEM agrees that in the course of business dealings with
FieldWorks, certain valuable, proprietary and confidential information of
FieldWorks is likely to become known to OEM, including, without limitation,
such information as equipment and software design information,
documentation, prospect and customer lists, key employee names, pricing,
discount, and commission structures, production volumes, and similar
information (hereinafter "proprietary information"). OEM agrees that the
proprietary information is the sole and exclusive property of FieldWorks
and shall be treated as confidential. OEM shall not disclose the
proprietary information in any manner to any third party without the prior
written approval of FieldWorks and shall take reasonable measures to
prevent any unauthorized disclosure by its employees, agents, contractors
or consultants during the term hereof including appropriate individual
nondisclosure agreements. OEM may use the proprietary information during
the term of this Agreement only as permitted or required for OEM's
performance hereunder.
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OEM AGREEMENT
7.2 The obligations set forth in Section 7.1 shall not apply to any
information which is or becomes known to the general public, or which OEM
can prove by written records was known to OEM at the time of its receipt
thereof from FieldWorks, or which has been rightfully obtained by OEM from
a third party. The provisions of this Section 7, shall survive any
termination or expiration of this Agreement.
8. General
8.1 This Agreement, including the Exhibits hereto which are
incorporated herein by reference, constitute the entire Agreement between
the parties and supersedes all prior and contemporaneous Agreements,
understandings, negations and discussions, whether written or oral.
8.2 Any dispute between the parties arising out of or in connection
with this Agreement, if not resolved by mutual agreement between the
parties, shall be settled by binding arbitration under the rules of the
American Arbitration Association. In the event of any such dispute or
difference, either party may give to the other party written notice that
the matter shall be settled by arbitration. Such arbitration shall be
conducted in Hennepin County, Minnesota, USA. An award by arbitration may
be entered as final judgment in any court having jurisdiction in the matter
or application may be made to such a court for acceptance of the award and
for an order of compliance.
8.3 This Agreement shall be governed by and interpreted under the laws
of the State of Minnesota, USA, excluding its choice of law rules.
8.4 OEM shall pay all expenses incidental to the performance of its
duties hereunder, including payroll taxes, salaries, wages or commissions
for employees, transportation and travel expenses and the expense of
maintaining such office as OEM shall deem desirable.
8.5 All modifications, amendments, and/or waivers to this Agreement,
less exhibits, shall be in writing and signed by both parties. No failure
by either party to take any action or assert any right hereunder shall be
deemed to be a waiver of such right in the event of the continuation or
repetition of the circumstances giving rise to such right.
8.6 In no event shall FieldWorks be liable to OEM, any of OEM's
customers or any other party for loss of profits, indirect, special,
consequential or incidental damages arising out of this Agreement, even if
FieldWorks shall have been advised of the possibility of such potential
loss or damage by OEM or OEM's customers. In no event shall FieldWorks be
liable for any damages in excess of the aggregate amounts actually paid by
OEM to FieldWorks under this Agreement.
8.7 OEM may not assign, delegate or transfer any of its rights or
obligations under this Agreement, without the prior written consent of
FieldWorks. Any attempted assignment, delegation or transfer by OEM without
such consent shall be void.
8.8 If any provision of this Agreement is found invalid or
unenforceable, such provision shall be deemed stricken from the Agreement
and the remainder of the Agreement shall continue in full force and effect.
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OEM AGREEMENT
8.9 This Agreement does not make either party the employee, agent or
legal representative of the other for any purpose whatsoever. Neither party
is granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the
other party. Each party is acting as an independent contractor.
8.10 Notices permitted or required to be given hereunder shall be
deemed sufficient if given by (a) registered or certified mail, postage
prepaid, return receipt requested, (b) private courier service, or (c)
facsimile addressed to the respective addresses of the parties as first
above written or at such other addresses as the respective parties may
designate by like notice from time to time. Notices so given shall be
effective upon (1) receipt by the party to which notice is given, or (2) on
the fifth (5th) day following mailing, whichever occurs first.
8.11 If the performance of this Agreement or any obligation hereunder
(other than the payment of moneys due owing hereunder) is prevented,
restricted or interfered with by reason of any event or condition beyond
the reasonable control of such party (including without limitation acts of
State or governmental action, riots, disturbance, war, strikes, lockouts,
slowdowns, prolonged shortage of energy or other supplies, epidemics, fire,
flood, hurricane, typhoon, earthquake, lightning and explosion,), the party
so affected shall be excused from such performance, only for so long as and
to the extent that such a force prevents, restricts or interferes with the
party's performance and provided that the party affected gives notice
thereof to the other party and uses diligent efforts to remedy such event
or conditions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives below.
FIELDWORKS INCORPORATED
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(OEM Company Name)
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(signature of Authorized Representative) (signature of Authorized Representative)
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(print Authorized Representative name) (print Authorized Representative name)
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(title) (title)
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(Execution Date) (date)
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OEM AGREEEMENT
EXHIBIT A
THE PRODUCTS
The products to be sold by OEM include:
OEM AGREEMENT
EXHIBIT B
TERRITORY/MARKET BOUNDARIES
The Products described in Exhibit A may only be sold and shipped by OEM to the
following geographic territory and markets:
Inclusions:
The Territory includes:
The Market Segment includes:
Exclusions:
OEM AGREEMENT
EXHIBIT C
ONE YEAR SHIP QUOTA
For the twelve (12) month period following the Execution Date, the total
Units bought by OEM from FieldWorks, Inc. is
UNITS
-----------------------
and assigned as minimum sales quota for the period.
Ship schedule for the period is as follows:
----------- --------- --------- -------- --------- --------- --------- -------- --------- --------- --------- --------
Jan Feb Mar April May June July Aug Sept Oct Nov Dec
----------- --------- --------- -------- --------- --------- --------- -------- --------- --------- --------- --------
----------- --------- --------- -------- --------- --------- --------- -------- --------- --------- --------- --------
OEM may, with FieldWorks written approval, make changes to the above ship
schedule provided the total unit commitment for the period is met.
OEM AGREEMENT
EXHIBIT D
PRICE SCHEDULE
Pricing for the Products listed in Exhibit A is as follows:
Maintenance Contracts:
OEM AGREEMENT
EXHIBIT E
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.).
