E-ViEWS Safety Systems, Inc. Dealer Agreement
Agreement
between E-ViEWS Safety Systems, Inc. (“E-ViEWS”) a Nevada Corporation, doing
business in the state of California at 0000 Xxxxx Xxx., Xxxxx X, Xxxxxx Xxxxx,
XX 00000, and EPGI FIRECREEK, INC (“DEALER”), having a place of business at the
address listed on Appendix A.
The
DEALER agrees to sell and market E-ViEWS products in the Authorized Territories
as listed on Appendix B. These territories are exclusive to DEALER during the
term of this agreement with the exception that E-ViEWS can sell and market to
traffic and other consultants in the territories. Any crossover opportunities
that are discovered by E-ViEWS in Dealer territory will be coordinated with
DEALER.
The
DEALER agrees to assist E-ViEWS in marketing its PRODUCTS including customer
introductions, meetings, and presentation and be compensated with a Finders Fee
for those efforts that result in the sale of PRODUCTS as defined in Appendix
D.
The
DEALER agrees to purchase, and E-ViEWS agrees to sell those products
manufactured by E-ViEWS as listed on Appendix C. Product discounts, as
identified on Appendix D, will be based upon the level of certification that the
DEALER has achieved. Product discounts will be computed from the
approved and released E-ViEWS DEALER Price Schedule(s).
The term
E-ViEWS Products (“PRODUCTS”) as used in this Agreement refers to, and is
limited to, solutions, systems, products, components, parts and/or other items
listed in the E-ViEWS DEALER Price Schedule(s) that are an integral part of this
agreement.
Relationship to the
Parties:
E-ViEWS
hereby appoints the DEALER as an E-ViEWS authorized DEALER only for the counties
and states listed on Appendix B.
All
shipments of PRODUCTS will be made to the DEALER at the addresses listed on
Appendix A unless otherwise agreed upon.
The
DEALER shall have no right to, and agrees it will not without prior consent of
E-ViEWS, appoint additional DEALERS, warranty service centers or distributors of
E-ViEWS Products; nor will the DEALER supply E-ViEWS Products
to DEALERS not authorized by E-ViEWS.
The
DEALER is not authorized to, and agrees that it will not, make any warranties or
representations, or assume or create any other obligations on behalf of
E-ViEWS
Page 1 of
11
Contract
Period
The term
of this Agreement shall be for thirty-six months. Upon completion of eighteen
months of this agreement, E-ViEWS will conduct a sales and service performance
evaluation for the purpose of continued exclusivity.
DEALER
Responsibilities:
In
consideration for being appointed as an authorized E-ViEWS DEALER for E-ViEWS
products, the DEALER assumes the following responsibilities. The DEALER
will:
|
1.
|
Develop
over the life of the Agreement a sufficient number of trained and capable
sales personnel to effectively market PRODUCTS and assure customer
satisfaction.
|
|
2.
|
Maintain
one or more full-time employees for the Authorized Territories who are
trained to and capable of effectively and responsively providing routine
service including the initial set-up and installation of E-ViEWS Products
where required.
|
|
3.
|
Maintain
PRODUCT certifications that are administered by E-ViEWS at the E-ViEWS
facilities in Agoura Hills, CA.
|
|
4.
|
Develop
over the life of the Agreement at each Authorized Location suitable
demonstration facilities to allow effective demonstrations of E-ViEWS
Products.
|
|
5.
|
Maintain
and provide at each Authorized Location a representative display of
E-ViEWS Products.
|
|
6.
|
Provide
first year’s product sales forecast as soon as practical after signing the
Agreement and each year thereafter.
|
|
7.
|
At
the time of product delivery to the customer, furnish a xxxx of sale or
other receipt stating the date of the sale and the serial numbers, if any,
of the E-ViEWS Product(s) sold, and assure that the appropriate E-ViEWS
warranty statement, software license agreement is signed by customer
and/or other materials specified by E-ViEWS are included with each
PRODUCT
|
|
8.
|
Provide
E-ViEWS with a valid Resale Exemption Certificate(s), as required by law,
in lieu of sales tax for the PRODUCTS purchased under this
agreement.
|
|
9.
|
Promptly
report to E-ViEWS all suspected product defects or safety
problems and keep E-ViEWS informed of customer
complaints.
|
|
10.
|
Promptly
pay E-ViEWS according to the Prices and Payments Section of this Agreement
and maintain a satisfactory overall credit
rating.
|
|
11.
|
Obey
all applicable laws and regulations, conduct business in an ethical
manner, and factually present PRODUCTS in terms of function and
performance.
|
Page 2 of
11
|
12.
|
Take
all necessary steps to ensure compliance with the DEALER’s obligations
under this Agreement by the DEALER and its
personnel.
|
|
13.
|
Attend
initial sales training and may be required for other sales training as new
PPODUCTS, Systems and Solutions are
introduced.
|
|
14.
|
Attend
technical training sessions provided by E-ViEWS to maintain certifications
for PRODUCTS.
|
DEALER
Training:
DEALER
training is the responsibility of the DEALER to schedule training sessions
with E-ViEWS for the particular sales, systems, solutions, and PRODUCT
training. Standard sales and PRODUCT training classes will be
published as to dates and location where available. In addition, special
arrangements for specific PRODUCT training required for a particular sale is
also the responsibility of DEALER.
Sales
training will consist of several levels of training and certification as
follows:
Level
1: PRODUCT training
Level
2: Systems training
Level
3: Solutions training (involving third party components or
software)
Technical
Support training will consist of several levels of training and certification.
The training will include the installation, setup, configuration, testing,
customer acceptance, and after sale technical support of PRODUCTS, Systems, and
Solutions as follows:
Level
1: PRODUCT training
Level
2: Systems technical training
Level
3: Solutions technical training
Customer
Support:
Because
E-ViEWS represents and supplies to the DEALER quality products, many of which
are intended to be installed and adjusted to peak performance by the DEALER, and
because it is critical to the reputation of E-ViEWS that product support and
customer service be available from the DEALER, DEALER agrees to sell PRODUCTS
only to customers located in the counties and states identified on Appendix B
and where DEALER has product support and customer service.
If the
DEALER wishes to sell PRODUCTS to a customer that is not located in the counties
and states identified on Appendix B, the DEALER agrees not to sell such PRODUCTS
unless the DEALER has consulted with E-ViEWS, in advance of the proposed sale,
and the DEALER and E-ViEWS have agreed to a course of action that will result in
the customer being properly served, and the product being properly
represented.
Page 3 of
11
Prices and
Payments:
The
DEALER agrees to pay E-ViEWS for PRODUCTS released for shipment at the
applicable prices specified in the E-ViEWS DEALER Price Schedule(s), less DEALER
discount as specified in Appendix D, in effect on the date the product is
shipped from E-ViEWS. Payment in full for PRODUCTS shall be due and payable upon
receipt of the E-ViEWS invoice. DEALER will receive “Favored Nation Status” as
to prices whereby DEALER is guaranteed the most favorable terms and prices
offered by E-ViEWS.
If
payment is not postmarked within thirty (30) days after the invoice date, the
DEALER will pay, in addition, a monthly financing charge for each month during
which payment remains outstanding, including any month in which payment was due
and not received. If no such charge is specified on the invoice, the charge will
be as specified on the E-ViEWS DEALER Price Schedule(s) and/or associated Terms
Sheets(s) in effect on the date of shipment, as permitted by applicable
law.
If at any
time the DEALER’s account is subject to a finance charge, E-ViEWS reserves the
right to stop all shipments to the DEALER. Late payments, is a breach of the
DEALER responsibilities and is grounds for termination of this Agreement by
E-ViEWS.
E-ViEWS
will publish E-ViEWS DEALER Price Schedules for E-ViEWS Products. The Schedules
may specify additional fees and allowances based on scheduling, shipment
quantities, special handling or other factors to be determined by
E-ViEWS. E-ViEWS reserves the right to change prices without
notice. E-ViEWS DEALER Price Schedule(s) will be published and become
effective either on the date of publication or on the date specified and remain
in effect until a new schedule is published and effective or until notice of
change has been sent to DEALER.
E-ViEWS
may unilaterally set Minimum Advertised Price (MAP) on any and all PRODUCTS by
all means of Solicitation, including any electronic or print means, including
but not limited to telephone, facsimile, internet web site, on line service,
newspaper, magazine, newsletter, direct mail, or similar means. MAP does not in
any way restrict the actual price for which the DEALER may sell the products,
nor does it restrict price quotes sent in reply to written
solicitations.
In
addition to the prices shown on the E-ViEWS DEALER Price Schedule(s), the DEALER
agrees to pay an amount equal to any taxes resulting from this Agreement or any
activities hereunder, exclusive of taxes based on net income. Any personal
property taxes assessable on PRODUCTS after delivery to the carrier shall be
borne by the DEALER.
Title:
Title to
each PRODUCT passes to the DEALER as of the date and FOB of shipment
from E-ViEWS.
Warranties:
An
E-ViEWS warranty statement will be included as appropriate with each PRODUCT
shipped to the DEALER. The DEALER is not authorized to make any other warranty
commitment, whether written or oral on E-ViEWS behalf.
Page 4 of
11
THE
FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
Trademarks and Related
Matters:
No rights
are granted to the DEALER to use trademarks and trade names of E-ViEWS or trade
names of third parties used in connection with the PRODUCTS except the limited
permission for the DEALER to use such trademarks solely to identify the DEALER
as an Authorized E-ViEWS DEALER and/or to identify PRODUCTS purchased from
E-ViEWS under this Agreement. The permission granted relative to such trademarks
shall terminate with the expiration or termination of this
Agreement.
Termination:
At the
end of thirty-six months the Agreement can be cancelled by written consent of
both E-ViEWS and the DEALER.
Product
Discontinuance:
E-ViEWS
reserves the unilateral right, without liability, to cease making available any
or all PRODUCTS. Notice will be provided DEALER in the form of noted changes to
the E-ViEWS DEALER Price Schedule(s) or in other legal forms. Any DEALER orders
that are received within 30 days of PRODUCT a cancellation notice will be
honored.
Indemnification:
The
DEALER agrees to indemnify E-ViEWS against, including reasonable attorney’s fees
and cost of litigation, and hold E-ViEWS harmless from, any and all claims by
any other party resulting from the DEALER’s acts (other than mere marketing of
PRODUCTS), omissions, or misrepresentation, regardless of the form of action,
notwithstanding any other term of this Agreement.
Page 5 of
11
Limitation of
Remedies:
In the
event of failure of either party to fulfill any of its obligations hereunder,
the exclusive remedy of the other party shall be to request that such obligation
be fulfilled and, if that does not occur promptly thereafter, to terminate this
Agreement, and where appropriate, bring an action for any moneys due hereunder
and/or in the case of E-ViEWS to seek enforcement of its rights regarding
copyrights, trademarks or trade names and enforcement of the DEALER’s obligation
to cease representing itself as an Authorized DEALER for PRODUCTS .
Neither
party shall have any liability for damages to the other for any violation of the
terms of this Agreement except for moneys due hereunder and neither party shall
have any liability to the other for lost profits or other consequential damages,
even if advised of the possibility of such damages, or for any claim by any
third party except as expressly stated in the Agreement. The foregoing
limitation of liability will not apply to the payments of costs, damages and
attorney’s fees referred to in the Sections “Trademarks and Related Matters” and
“Indemnification”.
DEALER
agrees to pay E-ViEWS reasonable attorney’s fees and costs of litigation if for
any cause whatsoever either party brings suit against the other and if E-ViEWS
is liable to DEALER for any fees DEALER incurs in such litigation, unless DEALER
prevails, then E-ViEWS shall be liable for reasonable attorney’s fees of
DEALER.
General:
This
Agreement is not assignable without the prior written consent of E-ViEWS. Any
attempt to assign any of the rights, duties or obligations of this Agreement
without such consent is void. For the purpose of this Agreement, the term
Assignment includes the transfer of effective voting control of a majority of
DEALER’s voting common stock if DEALER is a corporation or if DEALER is a
partnership the change in any of the general partners of DEALER after the
execution of this Agreement.
The
entire Agreement between the parties is incorporated in this Agreement and it
supersedes and merges all prior discussions and Agreements between the parties
relating to the subject matter hereof. This Agreement can be modified only by a
written amendment duly signed by persons authorized to sign agreements on behalf
of the DEALER and E-ViEWS and shall not be supplemented or modified by any
course of dealing or trade usage. Variance from or addition to the terms and
conditions of this Agreement in any order or other written notification from the
DEALER will be of no effect. The term “Agreement” as used herein includes any
applicable Schedule(s), Appendices or future written amendments made in
accordance herewith.
Any of
the attached Appendices A, B, C, or D may be amended with the written agreement
of both parties to this Agreement, evidenced by both parties signing and dating
replacement Appendix on a date subsequent to the original date of this
agreement, or subsequent to the date of a prior amendment.
Any
obligations and duties, which by their nature extend beyond the expiration or
termination of this Agreement shall survive any expiration or termination and
remain in effect.
Page 6 of
11
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
E-ViEWS
is not responsible for failure to fulfill its obligations under this agreement
due to cause beyond its control or, to provide support or service hereunder for
PRODUCTS located outside the United States and Canada.
No
action, except those regarding claims by third parties, copyrights, trademarks
or trade names and enforcement of the DEALER’s obligations to cease representing
itself as an Authorized DEALER for E-ViEWS Products, regardless of form, arising
out of this Agreement may be brought by either party more than two years after
the cause of actions has arisen, or, in the case of non-payment, more than four
years from the date the last payment was due.
This
Agreement is governed by the laws of the State of California.
Page 7 of
11
THE
DEALER ACKNOWLEDGES THAT THE DEALER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE DEALER AGREES THAT
IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES,
WHICH SUPERSEDES ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
|
Agreed
to by DEALER:
|
Agreed
to by:
|
|||
|
EPGI
FIRECREEK, Inc.
|
E-ViEWS
Safety Systems, Inc.
|
|||
|
|
Xxxxxx
X Xxxxxxxxx
|
|||
|
By:
|
By:
|
|
||
|
Name
(Type or Print)
|
Name
(Type or Print)
|
|||
|
/s/
Xxxxxx X
Xxxxxxxxx
|
||||
|
Authorized
Signature
|
Authorized
Signature
|
|||
|
CEO
|
||||
|
Title
|
Title
|
|||
|
On:
|
July 20, 2010
|
On:
|
|
|
|
Date
|
Date
|
|||
Page 8 of
11
APPENDIX
A
DEALER
PLACE OF BUSINESS
DEALER:
EPGI FIRECREEK, Inc. having a place of business at:
(Street
Address)
(City,
State, Zip)
APPENDIX
B
AUTHORIZED
LOCATIONS
1) E-ViEWS
hereby appoints the DEALER as an E-ViEWS authorized DEALER only for the
following counties and states listed below:
|
STATE:
|
FLORIDA
|
|
COUNTIES:
|
ALL
|
|
STATE:
|
LOUISIANA
|
|
COUNTIES:
|
ALL
|
|
STATE:
|
NORTH
CAROLINA
|
|
PAIRISHES:
|
ALL
|
|
STATE:
|
ALABAMA
|
|
COUNTIES:
|
ALL
|
2) E-ViEWS
hereby grants EPGI FireCreek, Inc. the right to market and sell E-ViEWS products
in the following countries: UNITED KINGDOM AND IRELAND.
Page 9 of
11
APPENDIX
C
PRODUCTS
|
|
1.
|
IntelliCON
EVP System, Hardware Components, Software,
Spares
|
IntelliCorr
Intersection Modules
IntelliTran/EV
Mobile Transponders
IntelliNet
Wireless Network Nodes
IntelliMon/EVP
Remote Management Software
IntelliMon/AVL
Asset Management Software
|
|
2.
|
IntelliCON
TSP System, Hardware Components, Software,
Spares
|
IntelliCorr
Intersection Modules
IntelliTran/TV
Mobile Transponders
IntelliNet
Wireless Network Nodes
IntelliMon/TSP
Remote Management Software
IntelliMon/AVL
Asset Management Software
|
|
3.
|
IntelliCON
LRV System, Hardware Components, Software,
Spares
|
IntelliCorr
Intersection Modules
IntelliTran/LRV
Mobile Transponders
IntelliNet
Wireless Network Nodes
IntelliMon/LRV
Remote Management Software
IntelliMon/AVL
Asset Management Software
|
|
4.
|
IntelliSigns,
Hardware Components, Software,
Spares
|
IntelliSign/VMS
Variable Message Signs
IntelliSign/DMS
Dynamic Message Signs
IntelliSign/CUS
Custom Message Signs
|
|
5.
|
ATLAS
Fleet Management System, Hardware Components, Software,
Spares
|
ATLASTran
Mobile Transponder
ATLASNet
Wireless Network Nodes
ATLASMon
Fleet Management Software
|
|
6.
|
TIME
SERVER
|
TS
2070
TS
802 (M50)
Page 10
of 11
APPENDIX
D
PRODUCT
DISCOUNTS
Product
discounts will be computed on the basis of sales and product training. It is the
responsibility of DEALER to schedule with E-ViEWS for initial sales and
technical product training. At the completion of each session of training,
DEALER will be certified on the particular PRODUCT for sales and/or technical
support. DEALER discount is based on the level of certification and training as
follows:
Finders
Fee:
DEALER
will receive for each sale made by DEALER a 5% Finders Fee for the setup,
attendance, and arrangement of a presentation meeting with a prospective
customer that leads to the sale of PRODUCT. The Finders Fee requires Xxxxx 0 of
Sales Training defined in the Agreement.
Sale of
Product(s):
DEALER
will receive a purchase discount of 15% for PRODUCTS that are listed on
the E-ViEWS DEALER Price
Schedule(s) if DEALER achieves certification of systems and solutions sales
training (Levels 2 and 3) on the PRODUCTS that are being delivered to customer.
DEALER is responsible for full sales and delivery of PRODUCTS.
Sale and Technical Support
of PRODUCTS:
DEALER
will receive a purchase discount of 25% for PRODUCTS that are listed on
the E-ViEWS DEALER Price
Schedule(s) if DEALER achieves certification of systems and solutions sales
training (Levels 2 and 3) along with technical support training on the PRODUCTS
that are being delivered to customer. DEALER is responsible for full
sale, delivery, installation, setup and configuration, and after sale technical
support of PRODUCTS.
Page 11
of 11
