THIS DEALER / DISTRIBUTOR AGREEMENT (the “Agreement”) is made on the order date (the “Effective Date”), by and between EZ Industries LLC, dba OCTOMASK TM, (the “Company”) and purchasing dealer / distributor (the “Distributor”).
In consideration of the promises hereinafter made by the parties hereto, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
1. Appointment. The Company hereby appoints and grants to Distributor a non-assignable right to sell OCTOMASKTM camera mount (the “OCTOMASK”) solely in Distributor’s brick and mortar store(s) and websites expressly approved by the Company in writing.
2. Title to OCTOMASK. The Company hereby reserves a purchase money security interest in each unit of OCTOMASK sold or to be sold under this Agreement and in the proceeds thereof, if Distributor shall have sold a unit(s) to another party prior to Distributor paying Company the purchase price for such unit as set forth herein, in the amount of such unit’s purchase price. These interests will be satisfied by payment in full. The Company as a financing statement may file a copy of this Agreement with the appropriate authorities at any time after the signature in order to perfect the Company’s security interest. On the request of the Company, Distributor shall execute financing statement(s) and other instruments the Company shall desire to perfect a security interest in the OCTOMASK for its purchase price. Title to the OCTOMASK units shall pass to Distributor upon receipt by the Company of payment in full for all amounts due for such units of OCTOMASK.
3. Competitive Equipment. Distributor agrees not to represent or sell other camera mounts and similar products which are competitive with the Company’s OCTOMASK unless agreed to by the Company by written notice.
4. Minimum Advertised Price.
(a) Applicability. Company hereby establishes Minimum Advertised Price (“MAP”) of not less than $79.99 per one (1) OCTOMASK unit. The MAP may be adjusted by Company at its sole discretion upon not less than seven (7) days notice to the Distributor. Such adjustments shall be uniformly applied to all Company resellers, dealers and distributors. The MAP applies to all OCTOMASK advertisements in any and all media, including, but not limited to: flyers, posters, coupons, mailers/emails, inserts, newspapers, magazines, catalogs, mail order catalogs, Internet or similar electronic media, television, radio and other public displays.
5. Shipping Costs and Taxes. Prices do not include shipping costs, which shall be borne by Distributor. Prices do not include any taxes applicable to the units sold under this Agreement. The Company will add an amount equal to the appropriate taxes to the invoice where the Company has the legal obligation to collect such taxes. Distributor shall pay such amount to the Company unless Distributor provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
(a) Shipments of OCTOMASK shall be made FOB plus freight Company’s facility in Los Angeles, California and liability for loss or damage in transit, or thereafter, shall pass to Distributor upon Company’s delivery of OCTOMASK to a common carrier for shipment. Shipping dates are approximate and are based, to a great extent, on prompt receipt by Company of all necessary ordering information from Distributor. Distributor shall bear all costs of transportation and insurance and will promptly reimburse Company if Company prepays or otherwise pays for such expenses.
(b) Company shall not be in default by reason of any failure in its performance under this Agreement if such failure results from, whether directly or indirectly, fire, explosion, strike, freight embargo, Act of God or of the public enemy, war, civil disturbance, act of any government, de jure or de facto, or agency or official thereof, material or labor shortage, transportation contingencies, unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic, or catastrophe, lack of timely instructions or essential information from Distributor, or otherwise arisen out of causes beyond the control of the Company. Nor shall the Company at any time be liable for any incidental, special or consequential damages.
7. Audit. From time to time, Company may audit Distributor’s store, books and/or website(s) on which Distributor sells OCTOMASK to confirm that the Distributor is not in a breach of this Agreement. Company shall bear the cost of each such audit except that if as a result of any such audit it is determined that the Distributor has committed a breach of this Agreement, the Distributor shall bear the cost of the audit. Distributor shall cooperate with every such audit.
8. Use of Company Name. Company expressly prohibits any direct or indirect use, reference to, or other employment of the name EZ Industries, OCTOMASK, its other names, registered and unregistered trademarks, or trade names, except as specified in this Agreement or as expressly authorized by Company in writing. All advertising and other promotional material will be submitted to Company at least two weeks in advance and will only be used if Company consents thereto, which consent shall not be unreasonably withheld. Company hereby authorizes and requires Distributor’s use of the Company’s insignia or lettering which will be on the products at the time of the delivery.
(a) Company agrees, at its own expense, to indemnify, defend and hold harmless the Distributor from and against every expense, damage, cost and loss (including attorneys’ fees incurred) and to satisfy all judgments and decrees resulting from a claim, suit or proceeding insofar as it is based upon an allegation that the OCTOMASK or any part thereof furnished by Company or any process which is practiced in the customary use of the OCTOMASK is or has been infringing upon any patent, copyright or proprietary right, if Company is notified promptly of such claim in writing and given authority, and full and proper information and assistance (at Company’s expense) for the defense of same.
(b) The Distributor agrees to hold the Company free and harmless from any and all claims, damages, and expenses of every kind or nature whatsoever (i) arising from acts of the Distributor; (ii) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (iii) arising from acts of third parties in relation to products sold to the Distributor under this Agreement, including, but not limited to execution of liens and security interests by third parties with respect to any such products.
10. Confidential Data. The Company may supply data and documentation for the proper manufacturing, installation, test, operation and maintenance of OCTOMASK. This data and documentation shall be presumed proprietary and confidential in nature. The Distributor agrees to be liable for all loss or damage incurred by the Company as a result of the improper or unauthorized use of such data. The Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any OCTOMASK and to all discoveries inventions, patent rights, etc., arising out of work done in connection with the contract and to any and all OCTOMASK developed as a result thereof, including the sole right to manufacture any and all such products. The Distributor shall not contact the Company’s suppliers, or any other person, for the purposes of manufacture. The terms of this Agreement are confidential and the Distributor agrees not to disclose them to other parties and to exercise reasonable care in protecting the information contained herein. This Section shall survive the termination or expiration of this Agreement.
11. Limited Warranty. Company warrants that Distributor shall acquire OCTOMASK purchased hereunder free and clear of all liens and encumbrances except for Company’s purchase money security interest. Company further warrants all OCTOMASK to be free from defects in material or workmanship under normal use and service for the life of the product. Company may, at its sole discretion, determine to repair or replace defective units. All repair covered by this warranty must be done at Company’s facility, or other such warranty repair facilities of Company as designated by Company unless Company specifically directs that this service be performed at another location. Company will repair any defect corrected within ninety (90) days and found to be within this scope of the warranty and all charges for labor and material, will be borne by Company. If it is determined that either no fault exists in Company, or the damage to be repaired was caused by negligence of Distributor, its agents, employees or customers, Distributor agrees to pay all charges associated with each such repair or replacement. THIS CONSTITUTES THE SOLE WARRANTY MADE BY COMPANY EITHER EXPRESSED OR IMPLIED. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AND DISTRIBUTOR’S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS.
(a) Distributor will learn the names, telephone numbers, and email addresses of customers, business partners, affiliates, investors, borrowers, lenders, agents, or banks of Company, hereinafter called “Contacts.” Distributor acknowledges, accepts and agrees that the identities of the Contacts will be recognized as exclusive and valuable assets and trade secrets of Company. Distributor agrees to keep confidential the names of any Contacts introduced or revealed by Company to Distributor, and that Distributor, its associates, subcontractors, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees, or consultants will not directly or indirectly contact, negotiate or deal with any of the Contacts without a written permission from Company to do so for the Term of this Agreement, and two (2) years thereafter.
(b) Distributor will not hire any employees of Company and will not, either directly or indirectly, solicit, induce, recruit or encourage any of Company’s employees to leave its employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away employees of Company, either on behalf of Distributor or for any other person or entity.
13. Liquidated Damages. In the event of a breach of any term of this Agreement, Company shall be entitled to liquidated damages from Distributor in the amount of $2,000 (two thousand US dollars) per breach. The Parties expressly agree that this amount is not a penalty but is a reasonable estimate of the damages that would result from a breach, and such damages would be impractical or impossible to calculate. In the event that legal action becomes necessary for the enforcement of all or any part of this Agreement or to collect the liquidated damages provided for herein, Company shall recover reasonable attorneys’ fees in addition to any other damages or relief awarded. Distributor acknowledges that in the event of a breach, Company shall be entitled to recover injunctive relief as well as liquidated damages, and that the liquidated damages provision included herein does not provide Company with an adequate remedy at law. Distributor further acknowledges that remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise.
14. Misuse of OCTOMASK. Any tampering, misuse or negligence in handling or use of OCTOMASK renders the warranty void. Further, the warranty is void if, at any time, Distributor or user attempts to make any changes to any of the components of the OCTOMASK; if any external device attached by Distributor or user creates conditions exceeding the tolerance of the OCTOMASK.
15. Term. The Term of this Agreement shall be for one (1) year from the date hereof, after which the Agreement shall automatically renew for consecutive one (1) year terms, unless terminated by either party for any reason or no reason at all upon at least seven (7) calendar days’ written notice to the other party. Termination shall not relieve either party of obligations incurred prior to termination.
16. Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be sent by email, registered mail, return receipt requested, postage prepaid and addressed to the addresses set forth below or to such changed address as any party entitled to notice shall have communicated in writing to the other party. Notices and communications shall be sent to addresses shown on the first page of this Agreement, unless the party has provided an updated address. Any notices or communications to either party hereunder shall be deemed to have been given when deposited in the mail, addressed to the then current address of such party. Any such notice or communication so mailed shall be deemed delivered and effective seventy-two (72) hours after mailing thereof in the United States to the address in the United States or seven (7) days if mailed internationally.
17. Relationship of the Parties. The relationship between the parties established by this Agreement shall be solely that of independent contracting parties and all rights and powers not expressly granted to the Distributor are expressly reserved to the Company. The Distributor shall have no right, power or authority in any way to bind the Company to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied. Nothing contained in this Agreement shall be construed to make the Distributor the agent of the Company for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. The Distributor specifically agrees that it shall have no power or authority to represent the Company in any manner; that it will solicit orders for OCTOMASK units as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent the Company in any manner; and that it will not at any time represent orally or in writing to any person or business entity that it has any right, power or authority not expressly granted by this Agreement.
18. Assignment. This Agreement constitutes a personal contract and Distributor shall not transfer or assign same or any part thereof without the advance written consent of Company.
19. Governing Law. Remedies. This Agreement shall be governed by the laws of California, without regard to its conflict of law principles that would result in application of any other law. Company’s rights granted hereby are cumulative and in addition to any rights it may have at law or equity.
20. Entire Agreement. The entire Agreement between the Company and the Distributor covering the OCTOMASK product is set forth herein and any amendment or modification shall be in writing and shall be executed by the party to be charged with such amendment. The provisions of this Agreement are severable, and if any one or more such provisions are determined to be illegal or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto. Any provisions, terms or conditions of Distributor’s purchase orders which are, in any way contradicting of this Agreement, except those additional provisions specifying quantity and shipping instructions, shall not be binding upon Company and shall have no applicability to the sale of OCTOMASK units by Company to Distributor.