Exhibit 10.8
Form of Orban/CRL International Dealer Agreement used prior to May 8, 2002
ORBAN / CRL INTERNATIONAL DEALER AGREEMENT
THIS AGREEMENT DATED ______/______/______ by and between CRL Systems, Inc.,
doing business as Orban, Inc., a Nevada Corporation, having its principal place
of business at 1525 Alvarado Street, San Leandro, California, 94577 USA, a
subsidiary of Circuit Research Labs, Inc., an Arizona Corporation with principal
offices located 2522 West Geneva Drive, Tempe, Arizona, 85282 USA (hereinafter
called the "Company"), and
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
a __________________ corporation (hereinafter called "Dealer").
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first herein above written.
[DEALER]
By:__________________________________________________
Title:_______________________________________________
Witnessed by:________________________________________
CRL Systems, Incorporated
By:__________________________________________________
Title:_______________________________________________
Witnessed by:________________________________________
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WITNESSETH:
WHEREAS, the Company markets high quality broadcast audio signal processing
electronics products and professional audio editing systems, which are sold
under the Orban and CRL brand names; WHEREAS, the sale and distribution of
Company products is ensured through a network of specialized dealers which meet
high standards of technical competence and have personnel with the required
special skills to sell Company products; WHEREAS, Dealer represents that it has
extensive expertise and knowledge in marketing and desires to join the Company's
network of dealers and to devote itself to the sale of Company products, and to
the rendering of services related to these products, on the terms and conditions
herein set forth; WHEREAS, the Company and Dealer desire that Dealer be
appointed as an authorized dealer for the products for a limited period, as
provided in this Agreement; NOW THEREFORE, in consideration of the premises and
the mutual covenants hereinafter set forth, and for other good, sufficient and
valuable consideration, receipt of which is hereby specifically acknowledged,
the parties hereto hereby agree as follows:
1. OWNERSHIP AND OPERATION OF DEALER
a. This Agreement has been entered into by the Company with Dealer in
reliance (i) upon Dealer's representation and agreement that the
following person(s) substantially participate(s) in the management of
the Dealer, and (ii) upon the representation and agreement that the
following person(s) shall have full managerial authority and
responsibility for the operating management of Dealer in the
performance of this Agreement with respect to the sale of the
Products:
Name:____________________ Address:__________________________
Type and Percentage of Interest:____
b. In the event of any change in the ownership of said named person(s) in
Dealer, or of any change in the managerial authority or responsibility
of said named person(s) in Dealer, Dealer shall give prior written
notice thereof (except in the event of a change caused by the death of
any such person(s), in which case Dealer shall give immediate notice
thereof) in writing to the Company; in any such case the Company may
terminate this Agreement for cause pursuant to paragraph 12.b.(ii)
hereof, or may waive such right of termination and agree with the
Dealer to any appropriate amendment to this Agreement.
2. DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
set forth below:
a. "Products" shall mean those products of the Company Dealer is
authorized to sell under this Agreement as more fully described in
paragraph 3.a
b. "Authorized Location(s)" shall mean, collectively, Dealer's sales
offices at the authorized locations specifically identified in Exhibit
A to this agreement.
c. "Territory" shall mean the geographic area in which Dealer has primary
responsibility of selling and servicing the Products as described in
Exhibit A to this agreement.
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3. APPOINTMENT
a. The Company hereby appoints Dealer and Dealer hereby accepts
appointment as the Company's authorized dealer for the Products
manufactured and/or sold by the Company which are indicated below:
AM and FM broadcast processing products, Orban [] CRL []
TV broadcast processing products, Orban [] CRL []
Internet products, Orban [] CRL []
Specialized processing products, Orban [] CRL []
Digital audio editing products Orban []
b. Dealer's appointment as an authorized dealer shall be:
[] exclusive [] nonexclusive [] nonexclusive, sole dealer.
c. Dealer's Territory is set forth in Exhibit A to this agreement.
d. This Agreement shall become effective only upon its execution by
Dealer and its acceptance and execution by the Company and transmittal
to Dealer.
b. Dealer acknowledges that no representations of any nature have been
made to it as to the possibility that the Company will continue its
business relationship with Dealer upon the termination or expiration
of this Agreement.
4. PERFORMANCE STANDARDS
Dealer undertakes and agrees to purchase those products as are set forth in
paragraph 3.a of this Agreement.
Dealer agrees to maintain at all times during the term of this Agreement a
business office and sales presence at each Authorized Location for the sale
of the Products.
Dealer and its staff shall be intimately conversant with the technical
language conventional to broadcast signal processing electronics products
in general and shall possess complete knowledge concerning the Company's
Products and their specifications, features and the Product's benefits.
Dealer shall conduct any sales training of its personnel that may be
necessary to impart such knowledge and shall extend complete cooperation to
the Company in any Product education programs that Company may establish.
Dealer acknowledges the importance of the Company having creditworthy
dealers. Dealer agrees to abide by the credit policies and credit
standards established by the Company from time to time in the Company's
sole discretion, and agrees to furnish to the Company from time to time, as
the Company may reasonably request, financial statements of the Dealer and
other financial information relevant to the creditworthiness of the Dealer.
Dealer shall at no time engage in "bait and switch" practices or any other
unfair trade practices with respect to the Products and shall make no false
or misleading representations with regard to the Company or the Products.
Dealer shall make no representations to customers or to the trade with
respect to the specifications or features of the Products except as may be
previously approved in writing or published by the Company.
Dealer shall advise the Company promptly concerning any information that
may come to its attention as to charges, complaints or claims about the
Company or the Products by customers or other persons.
Dealer warrants and represents that it has the capacity to sell the
Products at retail to end users, any by executing this Agreement, Dealer
warrants and represents that it shall continue to maintain
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such capacity by qualifying at all times in the manner set forth in this
Agreement and by adhering to the Company's sales policies and other
standards as set forth herein and as may be set forth in writing from
time to time by the Company.
Dealer agrees to engage actively in marketing, advertising and promotional
efforts and to market the Company's Products aggressively.
All costs and expenses incurred by the Dealer in performance of this
Agreement, including without limitation in connection with all rentals,
salaries, commissions, taxes, licenses, permits, telephone, fax, e-mail,
promotional, advertising and travel expenses, shall be paid by Dealer and
Dealer shall not be entitled to any payment or reimbursement therefor from
the Company, with the exception of expenses incurred for co-op advertising
and such promotional programs as the Company in its sole discretion may
choose to engage in from time to time, the payment of which will be
governed by such policy bulletins, Price Lists (as hereinafter defined)
and related materials as may be notified to the Dealer by Company from
time to time.
Dealer agrees to comply with all applicable U.S. federal and state laws
and regulations and the laws and regulations of the Territory in
performing its obligations under this Agreement. In particular,
Distributors shall comply with any U.S. law or regulation that restricts
or regulates the sale of U.S. origin goods or goods based on U.S. origin
technology, including rules and regulations issued by the U.S. Department
of State, the U.S. Treasury Department and the U.S. Department of
Commerce. The Company may request such information, which Distributor
shall supply, as required to enable the Company to comply fully with the
requirements of the applicable laws of the United States and the
Territory. Distributor shall not offer, promise or give, directly or
indirectly, anything of value to any government official, political party
official, political candidate or employee thereof or to any third party
while knowing that such item of value or any portion thereof may be
offered, promised or given to a government official, political party
official, political candidate or employee thereof for the purpose of
obtaining or retaining business.
Dealer agrees to promote the goodwill and name of the Company and to do
everything within its capacity to further the interests of the Company.
Dealer shall conduct its operations in a manner which will not adversely
affect the high image, credibility and reputation of the Company and the
Products.
Subject to applicable law, the Company shall have the right to impose
performance standards other and different than those set forth herein at
any time in its sole and exclusive discretion.
Dealer shall not sell or ship Products outside of Continental U.S.,
Hawaii, Alaska, and Puerto Rico without prior approval from the Company,
or unless the Territory assigned in Exhibit A. includes such geographical
areas.
DEALER AGREES NOT TO SELL OR OTHERWISE TRANSFER THE PRODUCTS TO ANY PERSON
OR ENTITY FOR RESALE, OTHER THAN AN AUTHORIZED COMPANY DEALER, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
Dealer shall procure and, at all times, maintain an all risk liability
insurance policy for an amount of not less than one million dollars.
Dealer agrees to abide by any and all terms and conditions as set forth in
the supplemental materials to this agreement.
5. PRICES AND PAYMENTS
a. The Products, prices, discount, credit and payment terms are
identified in the Company's price list(s), credit application form and
Exhibit B herein, for Products as they are issued from
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time to time (hereinafter called the "Price List"). Dealer
acknowledges receipt of the current Price List for Products authorized
for sale by Dealer. Subject to paragraph 9, the parties agree that
the Price List and each of the terms and conditions contained in the
Price List, Credit Application and Exhibit B, in their current form or
as modified by the Company from time to time, at the Company's
discretion, shall be considered an integral part of this Agreement.
No provisions contained in Dealer's purchase orders or other business
forms which are in addition to or different from the terms and
conditions stated in the Price Lists, Credit Application, or this
Agreement shall be of any force or effect whatsoever under any
circumstances, and the Company's failure to object to any such
provisions shall not be deemed a waiver of its rights to the contrary.
When new Price Lists are issued to Dealer by the Company, they shall
automatically become a part of this Agreement and shall supersede all
prior Price Lists as of their specified effective dates.
b. United States Federal, state or municipal taxes, including any U.S.
excise taxes, and all applicable federal, provincial or GST taxes now
or hereafter imposed with respect to all sales and/or the production,
treatment, manufacture, delivery, transportation or proceeds of the
Products specified against such sales (except income taxes applicable
to the Company) will be for the sole account of Dealer, and if paid or
required to be paid by the Company, the amount thereof will be added
to and become part of the price payable by Dealer to the Company.
Sales or use taxes of any kind in any way related to the Products,
which are required by law to be collected or paid by the Company,
shall be additional to the prices for Products quoted in the Price
Lists.
c. Unless an Open Account has been approved, Product will be sold to
Dealer on a cash-in-advance or irrevocable letter of credit basis only
or such other basis as shall be mutually agreed in writing. Such
payment shall be in U.S. currency, unless a Designation is made in
accordance with paragraph 5.a. above. If the Company has made a
Designation, Dealer may elect to pay either in U.S. Currency,
converted at the rate of exchange in effect on the date of remittance,
or in the currency in which the prices were established, provided,
however, that if the Dealer elects to pay in U.S. Currency, the price
on conversion may not be less than the price stated in the Price List
in U.S. dollars.
d. In the event Dealer's account with the Company is past due, the
Company may, in addition to any other remedies it may have under this
Agreement or otherwise: (i) refuse any orders placed by Dealer or
cancel or delay shipments of Products or parts; (ii) declare all sums
owed to the Company by Dealer immediately due and payable; and (iii)
make further sales of the Products to Dealer on a C.O.D. or cash in
advance basis only.
e. Dealer hereby grants to the Company a security interest in all
Products the Company sells to Dealer and all sales proceeds of Dealer
with respect thereto, and Dealer agrees that, upon the Company's
request, Dealer will forthwith execute any and all financing
statements and other documents that may be necessary in order to
create a perfected security interest therein in favor of the Company
(in each jurisdiction requested by the Company).
f. In the event that it becomes necessary for the Company to institute
litigation or arbitration to collect sums owed by Dealer, Dealer shall
be responsible for all attorney's fees and costs incurred by the
Company in connection with such litigation or arbitration, should a
judgment or award in the Company's favor be entered.
g. Subject to applicable law, the Company shall have the right to impose
performance standards other and different than those set forth herein
at any time in its sole and exclusive discretion.
6. DELIVERY, TITLE, RISK OF LOSS AND INSPECTION
a. The Company will use its best efforts to fill orders accepted by the
Company from Dealer as promptly as conditions permit, subject to the
provisions of paragraphs 5.d and 8.c hereof. However, the Company
shall not be liable to Dealer for any damages, whether direct or
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indirect, incidental, consequential or otherwise, for failure to ship
Products, delay in shipment of Products, or for errors in shipment of
Products to Dealer. Further, where partial shipments are
contemplated, delay in delivery of an installment shall not relieve
Dealer of its obligation to make payment therefor or to accept the
remaining installments.
b. Dealer agrees to accept shipment of the Products EX Factory, San
Leandro, California, Tempe, Arizona or EX such other place of shipment
as the Company in its sole discretion determines is appropriate.
Title to and risk of loss of the Products in respect of each sale
shall pass to the Dealer upon the Company placing such Products in the
custody of a carrier for shipment to Dealer. The Company shall in no
event have any responsibility for damage caused to the Products during
shipment, and it shall be the sole responsibility of Dealer to file
any appropriate claims for such damages with the carrier or with
Dealer's insurance carrier.
c. Within thirty (30) days following the date of receipt of Products by
Dealer, Dealer shall inspect the Products and shall immediately notify
the Company of any defects in the Products.
d. Dealer shall not return any Products delivered to Dealer without prior
authorization from the Company. All Products returned by Dealer to
the Company for any reason must be shipped prepaid, and must be
shipped in suitable packaging, at least equivalent to the original
carton supplied with the Products. The Company shall have no
obligation to accept unauthorized returns of Products. All
unauthorized returns shall be subject to a handling charge due to the
Company from the Dealer of fifteen percent (15%) of the then
prevailing invoice price of such returned item(s) plus any freight,
insurance or similar charges previously paid or incurred by the
Company in connection with the shipment.
7. DISCLAIMER OF IMPLIED WARRANTIES / LIMITATIONS ON DAMAGES AND REMEDIES
a. THE COMPANY EXTENDS LIMITED EXPRESS WARRANTIES SOLELY TO END-USERS OF
THE PRODUCTS AND NOT TO DEALER. THE COMPANY MAKES NO EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND TO DEALER WITH RESPECT TO THE PRODUCTS.
ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY DISCLAIMED AND EXCLUDED.
b. Dealer agrees that it shall make no warranties or representations,
either orally or in writing, to anyone on behalf of or in the name of
the Company. Dealer agrees to indemnify and hold the Company harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs and expenses, including without limitation reasonable
attorney's fees, which the Company may suffer or incur by reason of
any Dealer breach of this provision.
8. RESERVATION OF RIGHT
a. The Company may in its sole discretion from time to time and without
prior notice to Dealer add or delete any Products or line of Products
eligible to be sold to Dealer, provided that paragraph 3.a of this
Agreement shall be deemed to have been modified by any such addition
or deletion only upon the Company giving written notice thereof to
Dealer.
b. The Company in its sole discretion shall have the right to modify
prices or terms set forth in the Price Lists at any time without prior
notice to Dealer, provided that such modifications shall be applicable
only to orders not shipped prior to the modifications.
c. Notwithstanding any other provision of this Agreement, no order shall
be deemed binding upon the Company until accepted by the Company, and
the Company reserves the right to reject any order or to cancel the
same or any part thereof after acceptance for credit reasons or any
other reason whatsoever deemed by the Company to be sufficient.
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d. The Company shall have the right to make partial shipments with
respect to Dealer's orders, which shipments shall be separately
invoiced and paid for when due, without regard to subsequent
shipments.
9. RELATIONSHIP OF THE PARTIES
The Company and Dealer agree that their relationship is that of buyer and
seller only. Nothing stated in this Agreement shall be construed as
creating the relationship of employer and employee, master and servant,
principal and agent, franchiser and franchisee or joint venture between
the parties hereto. Dealer shall be deemed an independent contractor at
all times with respect to its performance hereunder, and shall have no
right or authority, whether expressed or implied, to assume or create, or
purport to assume or create, any obligation in the name of or on behalf
of the Company. Dealer agrees to indemnify and hold the Company harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs and expenses whatsoever, asserted or incurred by any person
or entity, including without limitation reasonable attorney's fees, which
the Company may suffer or incur by reason of any Dealer breach of this
provision.
10. TRADE NAMES, TRADEMARKS AND PROPRIETARY RIGHTS
a. Dealer acknowledges that the Company is the owner or licensee of all
Orban and CRL patents, copyrights, trademarks (including without
limitation "Orban, Optimod, Audicy and Amigo", service marks, trade
names, trade secrets, designs and other proprietary rights in
connection with or applicable to the sale and service of the Products,
parts and supplies, and agrees it shall never contest such right).
b. If under Section 3.b. Dealer is an authorized Dealer of Orban or CRL
products, then Dealer is authorized by the Company to display the
names "Orban" and "CRL", in connection with selling, advertising and
promoting the sale of the Products, but nothing in this Agreement
gives Dealer any right or interest in such trademarks or names except
with respect to such limited use in connection with the sale,
advertising and promotion of the Products.
c. Dealer agrees that it shall not attach any additional trademarks or
other trade designations to the Products. Dealer further agrees not
to affix the Company trademark or trade name to products other than
the appropriate Products covered by this Agreement.
d. Dealer shall not remove trademarks or serial numbers from or alter any
of the Products in any manner whatsoever or engage in any other
activity which will in any way tend to impair the reputation of the
Company or of the Products.
e. Dealer shall never use or adopt the name of "Orban" or "CRL" or use or
adopt any other name, trade name, trading style or commercial
designation owned or used by the Company, or use the name of the
Company, in Dealer's trade or corporate name.
f. Dealer shall, at its cost, fully cooperate with all efforts of the
Company, including participating in any legal action, which the
Company may undertake to protect and enforce its patents, copyrights,
trademarks, service marks, trade names, trade secrets, designs or
other proprietary rights.
g. The Company shall indemnify the Dealer and shall hold the Dealer
harmless against all claims, suits, damages or expenses, including
counsel fees and other expenses of suits, whether the same are
groundless or not, judgments and awards, by reason of any claim or
allegation that the Products breach or infringe the copyrights,
trademarks, service marks, trade names, trade secrets, designs or
other proprietary rights of any third party, and the provisions of
this paragraph shall survive any termination of this Agreement.
In the event that
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during the term of this Agreement, the Dealer shall become aware that
any third party is using or is attempting to use the trademarks,
service marks or trade names which are the property of the Company,
the Dealer shall promptly notify the Company.
h. Dealer agrees to adhere to graphic, verbal and thematic standards set
forth from time to time in supplemental materials provided by the
Company.
i. Upon termination of this Agreement for any reason, Dealer agrees to
discontinue any and all use of the Company's trademarks and trade
names, including such use in advertising, and further agrees to (i)
remove all signs designating Dealer as an authorized dealer for the
Products or that include any trade names or trademarks of the Company
and (ii) notify and instruct publications and others who publish or
broadcast Dealer's name as an authorized dealer of the Company to
discontinue such publication or broadcast.
11. DURATION OF AGREEMENT
This Agreement shall expire on: ____/____/____. Dealer acknowledges that
no representation of any nature has been made to it as to the possibility
that the Company will continue its business relationship with Dealer upon
termination or expiration of the Agreement.
12. TERMINATION
a. Either party may terminate this Agreement at any time, as to any or
all Products with or without cause. Where the termination is without
cause, the terminating party shall give thirty (30) day's prior
written notice to the other party, and termination shall be effective
upon expiration of such thirty (30) day period. Where the termination
by either party is for cause, termination shall be deemed to be
effective as of the date of the happening of the event or contingency
constituting the cause, provided that the terminating party gives the
other party written confirmation of termination (and of cause for
termination) within a reasonable time following such event or
contingency.
b. For purposes of this Agreement, cause for termination of the Dealer
shall include, but not be limited to, the following events or
contingencies:
(i) if Dealer breaches any of the obligations undertaken by it in
this Agreement, including without limitation any of its
obligations set forth in paragraphs 1, 4, 5, 6.b, 7.b, 10, 16
and 17 hereof;
(ii) in the event of any change for which Dealer is required to
notify the Company pursuant to paragraph 11.b. herein;
(iii) if Dealer assigns or attempts to assign any interest in this
Agreement without the Company's prior written consent;
(iv) if Dealer sells, transfers or relinquishes, voluntarily or
involuntarily by operation of law or otherwise, any substantial
interest in the direct or indirect ownership of Dealer, or makes
any change in the operating management of Dealer;
(v) if Dealer becomes insolvent or in the reasonable opinion of the
Company will become insolvent within a period not exceeding six
(6) months, files or has filed against it a petition in
bankruptcy or insolvency, makes a general assignment for the
benefit of its creditors or has a receiver or trustee appointed
for its business or properties.
c. In the event of termination of this Agreement for "cause," all orders
not yet shipped to Dealer shall be automatically canceled. In the
event of termination of this Agreement without cause, any Products
shipped after notice is given by the terminating party but prior to
the effective date of termination, shall be paid to the Company by
certified or cashier's check prior to such effective date of
termination.
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d. Following termination of this Agreement for any reason, Dealer shall
submit to the Company, within ten (10) days following the effective
date of termination, a list of all Products owned by Dealer as of the
effective date of termination. The Company may, but need not,
repurchase any or all of such Products from Dealer, at the prevailing
price for such Products or parts as then shown on the applicable Price
List or at such other price as the parties may mutually agree to, upon
giving written notice of its intention to Dealer within thirty (30)
days after receipt of the Products list from Dealer. Upon receipt of
notice that the Company intends to exercise its repurchase option,
Dealer agrees to have the Products delivered at Dealer's expense to
the Company's San Leandro, California or Tempe, Arizona facilities or
to such location in the United States as the Company may designate in
the notice. The Company shall have the right to inspect all such
returned Products before accepting their repurchase. The Company
shall be entitled to reject and return to Dealer, freight collect,
within fifteen (15) days of the Company's receipt of the returned
Products, any Products which, in the Company's sole judgment, are in
unacceptable condition. Repurchase shall be consummated at the prices
established by the parties in accordance with this paragraph for the
Products in question, less any costs incurred by the Company for
repair, refurbishing or repackaging of the Products. After receipt of
the Products from Dealer, the Company will issue an appropriate credit
to Dealer's account, or if no accounts are outstanding, will make
payment to Dealer.
e. Dealer shall, at its expense, within ten (10) days following the
effective date of termination, return to the Company all documents,
materials and all tangible property supplied to Dealer without charge
by the Company, and any confidential information and trade secrets
received from the Company, provided that where such confidential
information is not in written form or where the parties have agreed it
is incapable of return, Dealer shall forever maintain the
confidentiality of such confidential information.
f. Any termination of this Agreement shall be without prejudice to any
right that shall have accrued to either party hereunder prior to such
termination.
g. NEITHER THE COMPANY NOR DEALER SHALL BE LIABLE TO THE OTHER
FORCOMPENSATION, REIMBURSEMENT, LOST PROFITS, INDIRECT, INCIDENTAL
ORCONSEQUENTIAL DAMAGES, OR DAMAGES OF ANY OTHER KIND OF CHARACTER, AS
A RESULT OF ANY TERMINATION FOR ANY REASON OR NON-RENEWAL OF THIS
AGREEMENT, AND EACH PARTY HEREBY WAIVES ANY RIGHT IT HAS OR MIGHT HAVE
TO MAKE A CLAIM OR DEMAND THEREFORE.
13. CONFORMITY WITH LOCAL LAW
The rights and obligations of the parties hereto under this Agreement
shall be subject to all applicable laws, orders, regulation, directions,
restrictions and limitations of governments having jurisdiction over the
parties hereto. In the event, however, that any such law, order,
regulation, direction, restriction or limitation, or the interpretation
thereof, shall in the judgment of either party substantially alter the
relationship between the parties under this Agreement, or the advantages
derived from such relationship, either party may request the other party
hereto to modify this Agreement, and, if, within thirty (30) days
subsequent to the making of such request, the parties hereto are unable
to agree upon a mutually satisfactory modification hereof, then the party
giving notice may terminate this Agreement pursuant to the termination
without cause provisions of paragraph 12.a.
14. FORCE MAJEURE
The Company shall not be liable under the provisions of this Agreement for
damages on account of strikes, lockouts, accidents, fires, delays in
manufacturing, delays of carriers, acts of God, governmental actions,
state of war or any other causes which are unforeseeable or are beyond the
control of the Company, whether or not similar to those enumerated.
15. INDEMNIFICATION
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Dealer agrees to indemnify and hold the Company harmless from and against
any and all claims, damages and liabilities whatsoever, asserted by any
person or entity, resulting directly or indirectly from its performance or
any breach by Dealer of this Agreement, the acts or omissions of Dealer,
its employees or agents, or otherwise resulting from Dealer's operation of
its business. Such indemnification shall include but not be limited to the
payment to the Company of all costs and attorney's fees expended by the
Company in defending any such claims.
16. ASSIGNMENT
Dealer shall not assign this Agreement or any right hereunder or interest
herein without the prior written consent of the Company, and any attempted
assignment shall be null and void. The Company may in its sole
discretion, at any time, assign all or any part of this Agreement, its
rights or interests herein, to a partner, subsidiary or affiliated firm or
entity, or to another entity in connection with the sale or transfer of
all or substantially all of its business assets. Subject to these
restrictions, the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted
assigns.
17. NOTICES
All notices and demands of any kind which either the Company or Dealer may
be required or may desire to serve upon the other under the terms of this
Agreement shall be in writing and shall be served by personal delivery or
by mail at the principal place of business of the other party indicated in
this Agreement, or at such other address as a party may subsequently
designate in writing to the other party. All notices or demands by mail
shall be sent by certified or registered mail, return receipt requested.
If by personal delivery, service shall be deemed complete upon such
delivery. If by mail, service shall be deemed complete at the expiration
of the third day after the date of mailing.
18. NON-WAIVER
The failure or refusal by the Company either to insist upon the strict
performance of any provision of this Agreement or to exercise any right in
any one or more instances or circumstances shall not be construed as a
waiver or relinquishment of such provision or right, nor shall such
failure or refusal be deemed a custom or practice contrary to such
provision or right.
19. GOVERNING LAW AND ARBITRATION
a. This Agreement was made in the State of California, and shall, for all
purposes, be governed by and construed in accordance with the laws of
the State of California.
b. Except for petitions for injunctive relief or interim relief, which
shall be filed in a court with appropriate jurisdiction in Alameda
County, California, any controversy or claim arising out of or
relating to this Agreement, or the breach or validity thereof, whether
at common law or under statute, including without limitation claims
asserting violation of the antitrust laws, shall be settled by final
and binding arbitration in accordance with the Rules for Commercial
Arbitration of the American Arbitration Association ("AAA") in effect
at the time of the execution of this Agreement. Judgment upon the
award rendered by the Arbitrator may be entered in any court having
jurisdiction thereof.
c. The arbitration shall be conducted by a sole Arbitrator, to be
appointed by the parties within ten (10) days from the filing of the
Demand and Submission, in accordance with Section 7 of the Rules, at
any Regional Office of the AAA. If the parties fail to agree upon a
sole Arbitrator within said ten (10) days, the arbitration shall be
conducted by a sole Arbitrator appointed by the AAA in accordance with
Section 14 of the Rules.
d. The place of arbitration shall be San Leandro, California, and the
award shall be issued at the place of arbitration. The Arbitrator may,
however, call and conduct hearings and meetings at
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such other places as the parties may agree. The law applicable to the
arbitration procedure shall be the law of the place of arbitration.
The Arbitrator shall determine the merits of the matters in dispute in
accordance with the law of the State of California.
e. The Arbitrator shall not have the power to alter, modify, amend, add
to or subtract from any term of provision of this Agreement, nor to
rule or grant any extension, renewal or continuance of this Agreement,
nor to award damages or other remedies expressly prohibited by this
nor to grant injunctive relief, including interim relief, of any
nature.
f. The decision (award) of the Arbitrator shall be final and binding on
the parties. Judgment upon the award rendered by the Arbitrator may be
entered in any court having jurisdiction thereof or having
jurisdiction over one or more the parties or their assets. The parties
specifically waive any right they may enjoy to apply to any court for
relief from the provisions of this Article or from any decision of the
Arbitrator made prior to the award.
20. SEVERABILITY
In the event that any of the provisions of this Agreement or the
application of any such provisions to the parties hereto with respect to
their obligations hereunder shall be held by a court or other tribunal of
competent jurisdiction to be unlawful or unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect and
shall be construed so as to give the fullest effect to the intent of the
parties expressed herein.
21. RELEASE OF EXISTING CLAIMS
a. Except with respect to the terms and conditions contained in this
Agreement, the parties hereto and all of their directors, officers,
shareholders, partners, heirs, employees, servants, parents,
subsidiaries, affiliates, attorneys, insurers, assigns, successors,
family members, agents and representatives, past and present,
and each of them, and all the respective successors, assigns,
heirs, executors, administrators and any legal personal
representatives of each of the foregoing, and each of them,
hereby release, remise, acquit and forever discharge each other, and
all of the foregoing, from any and all claims, demands, actions,
causes of action, debts, liabilities, rights, contracts,
obligations, duties, damages, costs, expenses or losses, of
every kind and nature whatsoever, and by whomever asserted,
whether at this time known or suspected, or unknown or
unsuspected, anticipated or contingent, direct or indirect,
fixed or contingent, which may presently exist or which may hereafter
become known, in law or in equity, in the nature of an administrative
proceeding or otherwise, for or by reason of any event, transaction,
matter or cause whatsoever, from the beginning of time until the date
of the execution of this Agreement by the Company, excepting
however, that the Company reserves its rights against Dealer for
payment with respect to Products previously invoiced to Dealer,
and Dealer reserves its rights against the Company only for
accounting matters previously arising either out of returns of
Products to the Company or for accruals for co-operative
advertising, if applicable.
b. The parties hereby expressly acknowledge and agree that the foregoing
releases and waiver are essential and material terms of this
Agreement, and without such provisions, this Agreement would not have
been entered into.
c. It is the intention of the parties that the releases contained herein
shall not affect any rights conferred by or arising under this
Agreement, but that said releases shall be effective as a bar to each
and every claim, demand and cause of action specified above.
22. HEADINGS
Section heading are included solely for convenience, and are not to be
considered part of this Agreement, are not intended to be full or accurate
descriptions of the content of the Section, and shall not affect the
construction hereof. This Agreement shall be deemed to express the mutual
intent of the parties, and no rule of strict construction shall be applied
against any party.
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23. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute but one and the same instrument.
24. ENTIRE AGREEMENT
This Agreement supersedes and cancels any and all other prior agreements
between the parties hereto, oral or written, express or implied, with
respect to the subject matter hereof. This Agreement, together with its
Exhibits and the Price Lists, set forth the entire agreement between the
parties hereto; it may not be changed, altered, modified or amended except
by a written instrument signed by the authorized representatives of both
parties hereto or as otherwise expressly provided for herein.
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Exhibit A - Authorized Territory & Locations
Dealer's territory is:__________________________________________________________
Principle location:_____________________________________________________________
Contact Name:___________________________________________________________________
Address 1:______________________________________________________________________
Address 2:______________________________________________________________________
City: ________________ Country: __________________ Postal Code: ______________
Telephone:_______________ Fax: _____________________ e-mail:__________________
Alternate locations:
Contact Name:___________________________________________________________________
Address 1:______________________________________________________________________
Address 2:______________________________________________________________________
City: ________________ Country: __________________ Postal Code: ______________
Telephone:_______________ Fax: _____________________ e-mail:__________________
Contact Name:___________________________________________________________________
Address 1:______________________________________________________________________
Address 2:______________________________________________________________________
City: ________________ Country: __________________ Postal Code: ______________
Telephone:_______________ Fax: _____________________ e-mail:__________________
Exhibit B - Discount, Terms
Dealer is entitled to a ______% discount from current published Professional
User Price List with an additional 5% net 15 on approved open account. Unless
other arrangements have been made, all accounts are due and payable within 30
days of invoice date. A current Credit Application must be on file at Orban or
CRL to maintain an open account.
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