Exhibit 10.10
Form of Orban/CRL International Dealer Agreement used from and after May 8, 2002
[CRL Systems logo] [Orban logo]
2522 W. Geneva Dr. 1525 Alvarado St.
Tempe, AZ USA 85282 San Leandro, CA USA 94577
Tel 1(602)438-0888 Tel 1(510)351-3500
Fax 1(602)438-8227 Fax 1(510)351-0500
ORBAN / CRL INTERNATIONAL DEALER AGREEMENT
THIS AGREEMENT DATED May 8, 2002 by and between CRL Systems, Inc., doing
business as Orban / CRL, 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: President/CEO/Chairman
Witnessed by:______________________________
1
WITNESSETH:
WHEREAS, the Company markets high quality broadcast audio signal processing
electronics products, audio codec equipment and MP3 recorders/players, 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: ______________________________ Date:__________________________
Title:______________________________
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.
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 and as
described in Exhibit C:
2
AM and FM broadcast processing products,
TV broadcast processing products,
Internet products,
Specialized processing products,
Digital audio editing products,
Audio codecs and MP3 equipment
b. Dealer's appointment as an authorized dealer shall be as a Nonexclusive
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.
e. 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
a. Dealer undertakes and agrees to purchase those products as are set
forth in paragraph 3.a of this Agreement.
b. 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.
c. Dealer and its staff shall be intimately conversant with the technical
language conventional to broadcast signal processing electronics products
and ISDN/TPP/UP/IP audio codecs 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.
d. 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.
e. 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.
f. 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.
g. 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 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.
h. Dealer agrees to engage actively in marketing, advertising and
promotional efforts and to market the Company's Products aggressively.
3
i. 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 therefore 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.
j. 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, Dealer 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 Dealer 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. Dealer 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.
k. 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.
l. 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.
m. 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.
n. Dealer shall not sell or ship Products outside of Dealers assigned
Territory, without prior approval from the Company, or unless the Territory
assigned in Exhibit A includes such geographical areas.
o. 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.
p. Dealer shall procure and, at all times, maintain an all risk liability
insurance policy for an amount of not less than one million dollars.
q. 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 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
4
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. 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. If, in accordance with the applicable Price List or the other agreement
of the parties, Products are sold to Dealer on open account, Dealer shall
pay to the Company the full amount of the purchase price of the Products,
upon the date specified in the Company's invoice Net 30 days. All open
accounts unpaid beyond the due date of invoice will bear interest at an
annual rate of eighteen percent (18%). If, under applicable state law, such
rate is usurious, then the rate of interest shall be the maximum legal rate
of interest allowable in such area or state.
e. 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.
f. 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).
g. 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.
h. 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.
5
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 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
therefore or to accept the remaining installments.
b. Dealer agrees to accept shipment of the Products our Factory in San
Leandro, California or Tempe, Arizona or 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.
6
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.
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, Opticodec, Sountainer, 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
7
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 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: May 8, 2003. 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 1.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;
8
(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.
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
9
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
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. Governing Law; Arbitration; U.N. Convention. This Agreement shall be
construed in accordance with the internal laws of the State of Arizona,
except that the United Nations Convention on the international sale of
goods will be applicable to sales of the Products hereunder. No provision
in any purchase order or other form exchanged between the parties shall
vary the provisions of this Agreement unless
10
both parties to this Agreement sign such purchase order or form. Except as
otherwise expressly provided herein, all disputes arising under this
Agreement shall be subject to binding arbitration in accordance with the
rules of the American Arbitration Association with a single arbitrator
appointed by the Association. All arbitration shall be conducted in Tempe,
Arizona. The prevailing party shall be entitled to its costs and
attorneys' fees in any such arbitration.
b. 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.
c. 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.
11
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.
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.
12
EXHIBIT A - AUTHORIZED TERRITORY & LOCATIONS
Dealer's territory is:
Principal location:
Contact Name:
Address1:
Address2:
City:____________________ Country: __________________ Postal
Code:
Telephone:_______________ Fax:_____________________ e-mail:
Alternate locations:
Contact Name:
Address1:
Address2:
City:____________________ Country: __________________ Postal
Code:
Telephone:_______________ Fax:_____________________ e-mail:
Contact Name:
Address1:
Address2:
City:____________________ Country: __________________ Postal
Code:
Telephone:_______________ Fax:_____________________ e-mail:
13
Exhibit B - Discount, Terms
Dealer is entitled to a 25% discount from current published Professional User
Price List.
All International Sales Are Cash in Advance. An additional 5% prompt pay
discount will be given to orders with payment terms of Cash in Advance only
(Total discount = 28.75%). Unless an Open account has been established or other
arrangements have been made, all accounts are due and payable within 30 days of
invoice date. A finance charge will be added to all accounts of 18% annually.
A current Credit Application must be on file at Orban or CRL to maintain an open
account.
14
EXHIBIT C - APPOINTMENT (C-1)
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:
CRL (CIRCUIT RESEARCH LABS)
AM and FM broadcast processing products,
TV broadcast processing products,
Projected Annual Sales commitment: US$ ________________
DEMO PROGRAM
Distributor shall at all times maintain sufficient inventory to meet anticipated
customer demands for the Products. Such inventory shall include sufficient
quantities for demonstration purposes and for fulfilling customer orders for the
Products.
Distributor will be allowed to purchase a reasonable and acceptable amount of
demonstration equipment twice per year, based on your sales achievements at the
special demo discount of 40%, based on our then current pricelist.
EXHIBIT C - APPOINTMENT (C-2 INTERNATIONAL)
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:
ORBAN
AM and FM broadcast processing products,
TV broadcast processing products,
Internet products,
Specialized processing products,
Digital audio editing products
Projected Annual Sales commitment: US$ _______________
DEMO PROGRAM
Distributor shall at all times maintain sufficient inventory to meet anticipated
customer demands for the Products. Such inventory shall include sufficient
quantities for demonstration purposes and for fulfilling customer orders for the
Products.
Distributor will be allowed to purchase a reasonable and acceptable amount of
demonstration equipment twice per year, based on your sales achievements at the
special demo discount of 40%, based on our then current pricelist.
EXHIBIT C - APPOINTMENT (C-3 INTERNATIONAL)
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:
CRL (CIRCUIT RESEARCH LABS)
AM and FM broadcast processing products,
TV broadcast processing products,
Projected Annual Sales commitment: US$ ________________
ORBAN
AM and FM broadcast processing products,
TV broadcast processing products,
Internet products,
Specialized processing products,
Digital audio editing products
Projected Annual Sales commitment: US$ ________________
DEMO PROGRAM
Distributor shall at all times maintain sufficient inventory to meet anticipated
customer demands for the Products. Such inventory shall include sufficient
quantities for demonstration purposes and for fulfilling customer orders for the
Products.
Distributor will be allowed to purchase a reasonable and acceptable amount of
demonstration equipment twice per year, based on your sales achievements at the
special demo discount of 40%, based on our then current pricelist.
EXHIBIT C - APPOINTMENT (C-4)
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:
ORBAN CODEC EQUIPMENT
ORBAN-Europe / Dialog4
MUSIC TAXI
OPTICODEC
Projected Annual Sales commitment: US$ ______________
DEMO PROGRAM
Distributor shall at all times maintain sufficient inventory to meet anticipated
customer demands for the Products. Such inventory shall include sufficient
quantities for demonstration purposes and for fulfilling customer orders for the
Products.
Distributor will be allowed to purchase a reasonable and acceptable amount of
demonstration equipment twice per year, based on your sales achievements at the
special demo discount of 40%, based on our then current pricelist.
EXHIBIT C - APPOINTMENT (C-5 INTERNATIONAL)
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:
CRL (CIRCUIT RESEARCH LABS)
AM and FM broadcast processing products,
TV broadcast processing products,
Projected Annual Sales commitment: US$ ________________
ORBAN
AM and FM broadcast processing products,
TV broadcast processing products,
Internet products,
Specialized processing products,
Digital audio editing products
Projected Annual Sales commitment: US$ ________________
ORBAN CODEC EQUIPMENT
ORBAN-EUROPE / DIALOG4
MUSIC TAXI
OPTICODEC
Projected Annual Sales commitment: US$ ________________
DEMO PROGRAM
Distributor shall at all times maintain sufficient inventory to meet anticipated
customer demands for the Products. Such inventory shall include sufficient
quantities for demonstration purposes and for fulfilling customer orders for the
Products.
Distributor will be allowed to purchase a reasonable and acceptable amount of
demonstration equipment twice per year, based on your sales achievements at the
special demo discount of 40%, based on our then current pricelist.