Exhibit 10.4
DOMESTIC NON-EXCLUSIVE DEALER
AGREEMENT
between
CIRALIGHT GLOBAL, INC.
and
[DEALER]
DATED: January __, 2010
TABLE OF CONTENTS
Article 1 -Appointment of Dealer......................................... 2
Article 2 - Products..................................................... 3
Article 3 - Territory.................................................... 3
Article 4 - Prices and Payment Terms..................................... 3
Article 5 - Security Interest............................................ 5
Article 6 - Duties of Dealer............................................. 5
Article 7 - Duties of Corporation & Distributor.......................... 8
Article 8 - Minimum Purchases............................................ 10
Article 9 - Exclusivity.................................................. 10
Article 10 - Warranty.................................................... 11
Article 11 - Term and Termination........................................ 12
Article 12 - Dealer Fee.................................................. 14
Article 13 - Confidentiality............................................. 15
Article 14 - Trademarks.................................................. 15
Article 15 - Indemnification............................................. 17
Article 16 - Insurance................................................... 18
Article 17 - Force Majeure............................................... 18
Article 18 - General Provisions.......................................... 18
Exhibit A - Products & Trademarks
Exhibit B - Company Price List
Exhibit C - Warranty
Exhibit D - Letter of Appointment
Exhibit E - Exclusions
CIRALIGHT GLOBAL, INC. LOGO
DEALER AGREEMENT
(NON-EXCLUSIVE TERRITORY)
THIS AGREEMENT made as of January __, 2010 ("Effective date")
BETWEEN:
CIRALIGHT GLOBAL, INC., a corporation incorporated under the laws
of Nevada with its principal place of business at 2603 Main
Street, Suite 1150, Irvine, California 92614
(the "Corporation")
- and -
(the "Dealer").
WHEREAS:
(A) The Corporation produces and sells Daylighting products bearing the
trademarks listed on Exhibit "A" hereto (the "Products");
(B) The Dealer desires to obtain the non-exclusive right to promote, sell,
service and install the Products in the Territory (as hereinafter
defined);
(C) The Dealer has assured the Corporation that it possesses the necessary
technical and commercial competence, including the marketing
organization and personnel for the promotion, sales and customer service
relating to the Products to ensure efficient performance of its
contractual obligations hereunder;
(D) The Corporation is willing to sell the Products to the Dealer either
through one of its Distributors (if a Distributor has been given the
exclusive rights for the Territory, as hereinafter defined) or otherwise
directly for marketing and sale to end users in the Territory under the
terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:
Ciralight Global, Inc.
Non-Exclusive Dealer Agreement
Article 1 - Appointment of Dealer
1.1 APPOINTMENT. Subject to the terms and conditions of this Agreement, the
Corporation grants to Dealer the non-exclusive right as a Dealer to sell
the Products in the Territory. The Dealer hereby accepts such
non-exclusive appointment and agrees to use its best efforts to develop
and promote and facilitate the sale of the Products in the Territory
during the Term, in accordance with the terms and conditions of this
Agreement, including the requirement that Products be purchased from the
Distributor (if one has been appointed) and sold in accordance with
Corporation's suggested retail price, including volume discount policies
established by the Corporation.
1.2 LICENSE. Subject to the provisions of Article 14 hereof, the Corporation
hereby grants to Dealer the non-exclusive right and license to use the
trademarks set forth on Exhibit A hereto in the Territory, only for so
long as this Agreement is in force, as it may be amended from time to
time (the "Trademarks") for the sole purpose of promoting and selling
the Products in the Territory, and for no other purpose.
1.3 DISCONTINUATIONS; NEW PRODUCTS. Nothing in this Article or elsewhere in
this Agreement shall preclude the Corporation from discontinuing the
sale of any Product which the Corporation reasonably concludes is no
longer profitable or otherwise feasible for the Corporation to sell,
provided the Corporation gives the Dealer at least ninety (90) prior
written notice of such discontinuation. If the Corporation shall desire
the Dealer to carry and sell additional skylight products and associated
accessories, the Corporation shall so advise the Dealer in writing, and
the Dealer shall have thirty (30) from the date of such notice to
determine whether it wishes to have such new skylight product and
associated accessories, added to Exhibit "A" as a Product. If the Dealer
so declines, the Corporation may sell the new product itself or through
a Distributor or another Dealer or commission agent in the Territory.
1.4 LIMITATIONS. The Dealer shall buy and sell the Products in its own name
and for its own account. The Dealer is an independent contractor, and
not an employee, agent, joint venturer or partner of the Corporation.
The Dealer and employees of the Dealer shall identify themselves as
such, and shall make clear the limitations of their authority to any
potential or actual customers of the Products. The Dealer may not, in
any manner, accept any obligation, incur any liability, promise any
performance or pledge any credit on behalf of, or for the account of,
the Corporation except those expressly permitted under this Agreement
(if any). Each party shall pay any and all expenses and charges relating
to their performance of contractual obligations hereunder.
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Article 2 - Products
2.1 PRODUCTS. The Products covered by this Agreement shall include Ciralight
active and passive Daylighting products manufactured by or at the
direction of the Corporation, as more specifically set forth on Exhibit
"A" attached hereto, as it may be amended from time to time.
Article 3 - Territory
3.1 TERRITORY. Subject to the provisions of Article 9 herein, Dealer is
appointed to be a non-exclusive Dealer for the states of _________ and
____________ (the "Territory"). Dealer acknowledges that there may be
one or more other dealers appointed in the Territory depending on its
geographical size and/or population density.
3.2 In the event Corporation has not appointed a Distributor that acts as
the Exclusive Distributor for the Territory in which the product is to
be installed, then and for any period during the term or any extension
of this agreement that there is not a so designated Distributor, until
such time as a Distributor is appointed for the Territory in which the
product is to be installed, the reference to the Distributor contained
herein shall mean the Corporation. Corporation shall notify Dealer in
writing of such appointment if and when made and thereafter the Dealer
shall look exclusively to the Distributor covering the territory in
which the product is to be installed as the source of Products unless
otherwise expressly provided in writing by the Corporation. Dealer shall
purchase products and work directly with the Distributors in accordance
with the provisions of this agreement. Corporation shall have the right
to change or terminate appointed Distributors and revert to being the
supplier of Products for the Dealer in any Territory and shall notify
Dealer accordingly in such event.
Article 4 - Prices and Payment Terms
4.1 The selling price to the Dealer for the Products will be the
Distributor's list price for Dealers in effect at the time of the
Dealer's order. The Dealer shall submit purchase orders for the Products
to the Distributor in writing, which purchase orders shall set forth, at
a minimum: identification of the Products ordered, quantity and
requested delivery dates. Unless stated otherwise, prices, shipments and
risk of loss are Ex Works the Distributor's facilities. Title and risk
of loss pass to Dealer in accordance with the definition of Ex Works in
Incoterms 2000. The current list prices to be charged to Dealer for
Products are set forth in Exhibit "B" attached hereto.
4.2 Any increase in prices shall be effected by giving Dealer at least
ninety (90) days prior written notice. Any increase in prices shall not
affect any orders placed by Dealer prior to the expiration of said
period of ninety (90) days provided that if Dealer fails to make timely
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payment for such existing orders after receiving notice of the price
increase, the cost thereof shall adjust to the increased price. Prices
shall not increase more than once during each period of Six (6) months
commencing initially on 1 January 2010.
4.3 Unless otherwise agreed in writing, all payments due to Distributor
hereunder (including interest) shall be made in US Dollars. Payment
pertaining to any and all orders placed by Dealer according to this
Agreement, unless otherwise agreed in writing will be executed by Dealer
through wire transfer to Distributor's bank account, the details of
which will be communicated by Distributor to Dealer from time to time,
in two installments as follows:
a) Dealer will pay 50% of the purchase price of any order no later
than ten (10) days prior to the shipment of any order.
b) Dealer will pay 50% of the purchase price of any order no later
than twenty one (21) days after the date the order departs from
the warehouse.
4.4 In the event of any delay in payment of any amounts due to the
Distributor hereunder, the Distributor shall have the right to suspend
deliveries and may, at its option, terminate the order, as well as any
and all other orders and contracts with the Dealer. In the event that
the Distributor does not receive any payment when due, the Dealer shall
pay to the Distributor as a late charge and not as a penalty, interest
on the unpaid balance from the due date until payment is actually
received by the Distributor, at the varying prime (sometimes called
base) announced by the Distributor's banker. The Distributor's right to
such interest shall be in addition to and not in lieu of all other
rights and remedies arising by reason of such non-payment. Any payment
received by the Distributor may be applied by the Distributor first to
any outstanding interest due and then to any outstanding balance owed by
the Dealer to the Distributor, as the Distributor in its sole discretion
shall determine. The Dealer shall make all payments in accordance with
the terms of this Agreement notwithstanding any claim for any alleged
fault, defect or irregularity in the Products, in the event of any delay
in payment, the Distributor may, at its option, terminate the order and
hold the Dealer liable for damages.
4.3 In the event Dealer recruits additional Dealers, Dealer will receive a
1% override on the sales of recruited dealers for a period of four
years. Said Dealers must be approved by Corporation.
4.4 In the event that Dealer introduces the Corporation to an end user as a
finder for a transaction, as where such end user is located in the
Exclusive Territory of another Dealer or Sales Agent for a Distributor
who actually perform the Sales responsibilities, i.e. presenting,
demonstrating and selling the product to the customer, providing
technical support, placing and processing the quote, issuing the
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purchase order and sales documents, providing customer service and
follow through after the installation etc., then the Dealer making the
introduction shall in such instances receive a finders fee equal to 20%
of the commission resulting from such transactions, or at such other
amount as the referring Dealer and the servicing Dealer or Sales Agent
involved mutually agree between themselves regarding how to share the
resulting fees. In the event of disputes which the parties are unable to
resolve among themselves, the Corporation shall be advised and the
parties agree that the Corporation shall serve as the final arbiter
thereof.
4.5 Commissions paid to the Dealer on billings on which the customer
defaults in payment will be charged back to the Dealer when the customer
has been in default ninety (90) days or more. If the customer pays the
amount at some future date these commissions will be repaid to the
Dealer.
Article 5 - Security Interest
5.1 SECURITY INTEREST. The Distributor shall retain title to the Products
and shall have a security interest in the Products sold to the Dealer
and all accounts receivable arising from the sale of such Products,
including their respective proceeds (for purposes hereof, the
"Collateral") until paid in full. The Dealer, upon the Distributor's
request, shall give, execute, file and/or record any notice, financing
statement, continuation statement, instrument or document which the
Distributor shall consider necessary to create, preserve, continue,
effect or validate the security interest in the Collateral granted
hereunder or to enable the Distributor to exercise or enforce its rights
hereunder. The Dealer hereby authorizes the Distributor to file any
financing statements, continuation statements or other documents in any
jurisdiction at any time it deems necessary to protect and maintain the
Distributor's interest in the Collateral, with or without the Dealer's
signature, and the Dealer hereby specifically authorizes the Distributor
as the Dealer's attorney-in-fact to execute and file such statements on
the Dealer's behalf. In the event the Dealer intends to utilize other
warehouse facilities, change its business address or in any other way to
transfer the Products, or any records relating to such Products,
including accounts receivable, to any location other than the address
set forth above, the Dealer shall notify the Distributor in writing at
least thirty (30) days prior to such change or transfer.
Article 6 - Duties of Dealer
6.1 The Dealer, at its own cost and expense, shall use all reasonable
commercial efforts to develop and exploit the maximum sales for the
entire line of the Products in the Territory. This covenant to use all
reasonable commercial efforts shall include without limitation the
following obligations:
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(a) Dealer shall actively sell the products within Dealer's
territory.
(b) Dealer shall ensure that its sales staff are fully trained and
knowledgeable about the Products.
(c) MONTHLY REPORTS. Dealer shall deliver to the Distributor and
Corporation no later than the tenth (10th) day after the end of
each calendar month a written report in regard to operations of
the Dealer for the preceding calendar month.
(d) ADVERTISING AND PROMOTION. The Dealer agrees to conduct, at its
own expense, reasonable advertising and public relations
campaigns for Products and to attend trade shows to remain
knowledgeable about the Products and competing products, and to
maintain website awareness for the Products. The Distributor and
Corporation reserve the right to inspect the records of the
Dealer to confirm the Dealer is promoting the products. Dealer
will have the option to purchase pre-printed promotional
materials prepared and printed by the Corporation or to create
and print Dealer's own promotional material using approved
product images, test, slogans, logos, videos and other
promotional items in an approved manner. New advertising and
promotional materials created by Dealer shall be submitted to
the Corporation for its written approval prior to the use of any
such material.
(e) LICENSES AND PERMITS. The Dealer agrees that it shall obtain any
and all licenses and permits which may be required under all
applicable law in order to perform the duties and obligations
hereunder.
6.2 Unless otherwise agreed in writing, Dealer shall purchase all components
related to the installation and operation of the Corporation's products
from the Distributor covering the territory in which the product is to
be installed. Dealer shall use only official and approved parts supplied
by the Distributor for the sales and the installation of the products.
This shall include without limitation the domes, mirrors, lenses,
lightwells, mid-trays and sun tracking controllers. At the option of the
Distributor, Dealer shall be allowed to purchase security bars, light
shades and curbs from third party sources provided that these parts
comply with and follow all the specifications provided by the
Corporation and are submitted to the Corporation for its written
approval not to be unreasonably withheld or delayed.
6.3 In the event that Dealer wishes to receive authorization to undertake,
or to designate third parties (other than customers/end users of the
Products) to undertake the installation of Corporation's Products,
Dealer and/or its designee shall first have received instruction from
Corporation's authorized installation instructors, and having
successfully completed such instruction, shall receive a certificate of
authorization as an Authorized Product Installer, and shall thereafter
comply with Corporation's official installation manual and instructions
shall receive a certificate of authorization as an Authorized Product
Installer, and shall thereafter comply with Corporation's official
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installation manual and instructions. Installations performed by
unauthorized/uncertified personnel, not installed in accordance with the
official installation manual and instructions, or otherwise improperly
installed, may result in voiding all or a portion of the Corporation's
warranty for such Product.
6.4 Dealer will provide Distributor and Corporation with timely reports of
closed and pending sales on a regular basis to assist with forecasting
product demand. Dealer will provide copies of signed contracts, pictures
of installations and other such reasonable documentation related to sale
and installation of products requested by Distributor or Corporation.
6.5 Dealer agrees to observe high standards of ethical conduct and honestly
represent the capabilities of Corporation's products. Dealer undertakes
to comply with the rules of fair competition and all other applicable
laws and regulations.
6.6 Dealer is authorized hire Independent Sales Reps that work directly with
Dealer. The Distributor and Corporation require that Dealer provide all
pertinent information such as: Name, address, and contact information of
appointed Sales Reps. The information provided by Dealer shall be used
for record keeping purposes only and held confidential for so long as
this agreement remains in effect and Dealer is not otherwise in material
breach hereof. Distributor will provide product support to Dealers and
Sales Reps provided that Dealer respects Distributor's exclusivity as
source of Products in the Territory. Sales Reps will not knowingly sell
or offer to provide Products to or from sources or customers that
violate Corporation's exclusivity rights granted to Distributors.
6.7 Dealer will provide product training and support to its Sales Reps. All
of Dealer's Sales Reps shall process customer purchases through the
Distributor. Dealer and its Sales Reps shall not knowingly sell product
outside of Dealer's Territory or otherwise violate exclusivity rights
granted to Distributors or Dealers, if any.
6.8 Except as expressly provided by this Agreement, any and all expenses
and/or charges connected with the fulfillment of the Dealer's
obligations and activity pertaining to this Agreement shall be
exclusively borne by the Dealer.
6.9 The Distributor's and Corporation's representatives may, upon prior
written notification, visit the Dealer's offices at any reasonable time
during normal business hours, in order to assist in the improvement of
the sales and marketing of the Products.
6.10 In the event any controllers are to be replaced for any reason under the
Corporation Warranty, Dealer shall return the replaced controller in its
original configuration, with all its original components intact and
unopened. The breaking of the Controller seal shall be prohibited under
this agreement. The breaking of a controller seal shall void the
warranty of the Controller and be considered a serious violation of this
agreement.
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6.11 The Dealer shall comply with the pricing and discount policies set by
the Distributor in conjunction with the Corporation within the
Territory. Dealer may determine the compensation for its own Sales Reps
within Dealer's Territory but Corporation shall have the right to
terminate its agreement with Dealer and/or Distributor in the event that
the suggested retail price, including volume discount policies, set by
Corporation are not adhered to.
6.12 The Dealer agrees to provide the Distributor and Corporation with
regular information as is necessary to keep the Distributor and
Corporation up to date regarding sales of the Products, market trends,
and the products and advertising of competitors.
Article 7 - Duties of Corporation & Distributor
During the term of this agreement, the Corporation and Distributor shall provide
Dealer with the following:
7.1 Provide Dealer with branding and marketing material in English,
including artwork, logos, photos, written copy, product specifications
and other materials that can be used by Dealer to create materials
necessary to promote the products.
7.2 To assist Dealer with sales and installation training. Corporation will
provide Dealer with the most current installation materials and updated
product information on a timely basis and will provide a reasonable
amount of installation training at a reasonable cost for Dealer's
personnel or third party designees in order for them to achieve
certification as Authorized Product Installers.
7.3 Provide Dealer with a listing as a Dealer for the Territory on the
Corporation's website.
7.4 Provide Dealer with ongoing communications regarding market intelligence
and other relevant information pertaining to the Corporation's Products.
7.5 Provide a warranty for the products in accordance with Article 10
herein. Corporation shall provide Dealer with 90 days advance notice of
any changes in the warranty terms and conditions offered by the
Corporation. In the event Corporation changes the warranty, Dealer shall
have 45 days from said notice to determine whether to continue this
agreement or at its option may elect to discontinue this agreement upon
30 days to Corporation. In the event the warranty provisions are
changed, the changes shall only apply to future purchases made after the
effective date of the change, and shall not be retroactive to prior
purchases.
7.6 Corporation and Distributor shall at all times have the right to contact
purchasers of the products within the territory to correct issues, to
assess the Customer's satisfaction with the product and the service they
are receiving, and repair products as may be needed. Dealer shall
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maintain and provide contact information for purchasers as requested by
Corporation and in accordance with policies set by Corporation.
7.7 Distributor shall maintain sufficient Inventory of product and parts
and/or capacity to timely fulfill Dealer's orders which it has received
and confirmed and for which, if applicable, Dealer has paid any
requisite deposit. Subject to the terms and conditions of this
agreement, Distributor undertakes to accept, confirm and fulfill all
product related orders placed by Dealer during any period during the
term of this Agreement commencing on the Effective Date of this
agreement.
7.8 Lead time for the shipment of Dealer Purchase Orders shall be 15 days.
Upon receipt of a purchase order from Dealer, Distributor shall submit
to Dealer a written Sales Order as acknowledgement of each purchase
order within two (2) business days of the receipt. Dealer shall sign and
return each sales order to confirm Dealer's acceptance of the terms of
the sale and delivery schedule once agreed upon.
7.9 Unless stated otherwise, prices, shipments and risk of loss for any
product purchased by Dealer from Distributor are Ex Works the
Distributor's facilities. Subject to the conditions of Article 5, risk
of loss passes to Dealer in accordance with the definition of Ex Works
in Incoterms 2000.
7.10 Dealers and Sales Reps must comply with policies set by the Distributor
in conjunction with the Corporation and must purchase product through
the Distributor for installations within the Territory.
7.11 Corporation reserves the right to terminate an Independent Sales Rep or
demand that Dealer terminate any Sales Rep whether recruited by a
Distributor, Dealer or Corporation for violating the Corporation's
professional standards or violating the terms of their agreement or that
fails to meet agreed upon sales targets, if applicable.
7.12 Corporation agrees not to circumvent Dealer or to sell directly or
indirectly to an existing or prospective customer of Dealer during the
term of this Agreement and for a period of one year after the expiration
of this Agreement provided that such restriction shall not apply if this
agreement is terminated for good cause such as, by way of example, but
not limitation, if Dealer shall undertake to sell competing products to
end-users or to violate the pricing or discount policies of Corporation
and Distributor.
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Article 8 - Minimum Purchases
8.1 The minimum purchases to be made by Dealer during each twelve (12) month
period of the Term of this Agreement, commencing with the first (1st)
twelve (12) month period of the Term, are as follows:
(a) Accepted orders for Two Hundred Fifty (200) units during the
first calendar year of the Term.
(b) Accepted orders for Three Hundred Fifty (350) units during the
second calendar year of the Term.
(c) Thereafter, the minimum number of accepted orders shall increase
by five (5) percent per each calendar year.
8.2 Either party shall be entitled to terminate this Agreement as provided
in Article 11 in the event that the quantity of Products ordered from
Dealer in Territory has not reached the target as set forth above,
during each period.
8.3 Corporation's Products shall not constitute less than five percent (7%)
of the total annual sales of the Dealer during each year of the Term
beginning in the second year.
Article 9 - Exclusivity
9.1 During the Term, the Dealer shall not, directly or indirectly (by equity
or management participation, beneficial ownership, rendering of advice
or consultation, contractual arrangement or otherwise), solicit orders
for, sell, distribute or otherwise deal in, any products competitive
with the Products.
9.2 EXCEPTIONS TO LIMITATIONS ON DIRECT DEALING. Notwithstanding anything to
the contrary in this agreement, Corporation may designate house
customers which shall be excluded from this agreement. House Customer
shall mean a subsidiary, franchisee or company owned facility of a
multinational company that operates in at least eight countries or a
national company with at least two hundred locations within the United
States. A House Customer may also be a Federal Government account,
including any branch of the military even though a military base or a
Federal Government facility may be located within a given Dealer's
Exclusive Territory. Where the Corporation enters into an agreement to
provide Products to a multi-national company or national company,
referred to as House Customers, Corporation or the Distributor, Dealer
or Sales Rep that secured the House Customer shall be allowed to sell to
the company within any Territory. In addition, Corporation may at its
option enter into an agreement with a Multi-national company or National
Company with at least a half billion in annual revenues to Private Label
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the products covered by this agreement for sale in any Territory as an
exclusion to this agreement provided the products are promoted and sold
under a different name and trademark. Corporation shall maintain a list
of House Customers and Private Label Companies and notify Dealer as
changes occur. In addition to House Customers and Private Label
companies, a list of pre-existing exclusions, if any, to this Agreement
are listed in Exhibit E.
9.3 SHARED TRANSACTIONS. Dealer agrees to only market and sell products
within Dealer's Territory. In the event Dealer services national
accounts or accounts that subsume or have establishments in multiple
territories (other than House Customers) including the Exclusive
Territories of other Dealers, then Dealer shall not actively solicit
business within any Exclusive Territory of another Dealer but in the
event Dealer sells product that is to be installed in the Exclusive
Territory of another Dealer, unless otherwise mutually agreed by the
parties involved, the fees or profit from any such transaction shall be
split using the following formula:
(a) 65.0% of the total profit or commissions shall be earned by the
Dealer responsible for procuring the transaction.
(b) 35.0% of the total Profit or commissions shall be earned by the
Exclusive Dealer for the territory in which the product is to be
installed.
(c) The Dealer that initiates the transaction shall have the first
right to complete the installation for their customer (provided
they are or designate Authorized Product Installer to do so). In
the event initiating Dealer elects not to complete the
installation, the Exclusive Dealer shall have the right to
complete or contract for the installation as provided under
their Dealer Agreement. 100% of the installation fees shall be
retained by the entity that is responsible for the actual
installation of the Product unless agreed otherwise between the
parties involved.
(d) In the event two or more Dealers find that they are bidding on
the same project and one of the Dealers is the Exclusive Dealer
for the Territory in which the project is located, the priority
shall go to the Exclusive Dealer in whose territory the project
is located and the non-exclusive Dealer shall withdraw its bid.
Article 10 - Warranty
10.1 THE CORPORATION WARRANTS TO THE DEALER EACH PRODUCT SOLD BY IT TO BE
FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, WHEN PROPERLY MAINTAINED
UNDER NORMAL USE, FOR A PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF
PURCHASE BY THE DEALER OF THE PRODUCT (THE AWARRANTY PERIOD"). A COPY OF
THE WARRANTY IS ATTACHED HERETO AS EXHIBIT "C"
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10.2 PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE
DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY THE CORPORATION'S
DECISION, BE REPLACED OR REPAIRED, OR, AT THE CORPORATION'S OPTION,
CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT
DEALER NOTIFIES THE CORPORATION IN WRITING OF SUCH DEFECT WITHIN THIRTY
(30) DAYS OF DISCOVERY AND DEALER RETURNS SUCH PRODUCTS IN ACCORDANCE
WITH THE CORPORATION'S INSTRUCTIONS. NO PRODUCTS MAY BE RETURNED BY THE
DEALER WITHOUT THE CORPORATION'S PRIOR WRITTEN AUTHORIZATION.
10.3 THIS WARRANTY DOES NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECTED TO
MISUSE, ABUSE, NEGLIGENCE OR ACCIDENT BY THE DEALER OR THIRD PARTIES.
THE WARRANTY FOR THE CONTROLLER SHALL BECOME VOIDED IF THE SEAL OF THE
GPS CONTROLLER UNIT IS BROKEN FOR ANY REASON.
10.4 THE CORPORATION MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND
WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THAT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE. FAILURE TO MAKE ANY CLAIM IN WRITING, OR WITHIN THE THIRTY (30) DAY
PERIOD SET FORTH ABOVE, SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF
THE PRODUCTS AND AN ADMISSION BY THE DEALER THAT THE PRODUCTS FULLY
COMPLY WITH ALL TERMS, CONDITIONS AND SPECIFICATIONS OF DEALER'S
PURCHASE ORDER. THE CORPORATION SHALL NOT BE LIABLE FOR DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY
CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS RESULTING
FROM INABILITY TO USE THE PRODUCTS, INCREASED OPERATING COSTS OR LOSS OF
SALES, OR ANY OTHER DAMAGES. TO MAKE A CLAIM UNDER THIS WARRANTY, DEALER
MUST NOTIFY THE CORPORATION IN WRITING WITHIN THE WARRANTY PERIOD.
10.5 THE FOREGOING CONSTITUTES THE DEALER'S SOLE AND EXCLUSIVE REMEDY AND THE
CORPORATION'S SOLE OBLIGATION WITH RESPECT TO PRODUCTS FURNISHED
HEREUNDER.
Article 11 - Term and Termination
11.1 The duration of this Agreement shall be for a period of twelve (12)
months (the "Initial Term") and shall be renewable for up to three (3)
additional one year terms provided that Dealer shall have achieved the
minimum sales volume requirements as set forth herein, or as otherwise
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modified and agreed upon between the parties during each annual review
of sales activities and provided that dealer is not otherwise in breach
hereof and unless either party hereto gives to the other party written
notice to terminate this Agreement no later than ninety (90) days prior
to the end of the Initial Term or any Renewal Term. The Initial Term and
the Renewal Term are hereinafter collectively referred to as the "Term".
11.2 Anything in section 11.1 above to the contrary notwithstanding, this
Agreement may also be terminated at any time by the Corporation
immediately upon written notice to the Dealer in the event that after
the date hereof:
(a) Dealer breaches its covenants of exclusivity set forth in
Article 9 hereof;
(b) The Dealer fails to comply with the applicable federal, State
and local laws and regulations, pursuant to section 6.8 above;
(c) The Dealer fails to achieve the minimum purchase requirements
set forth in Article 8 hereof;
(d) The Dealer fails to comply with the price and payment term
provisions set forth in Article 4 hereof;
(e) The Dealer sells product outside of Dealer's Territory more than
two times; or,
(f) The Dealer fails to meet the reasonable advertising
requirements, set forth in 6.1(d) above.
11.3 Anything in section 11.1 or 11.2 above to the contrary notwithstanding,
this Agreement may also be terminated at any time by either party
immediately upon written notice to the other party in the event that
after the date hereof:
(a) Either party shall suspend or discontinue its business, or shall
make an assignment for the benefit of, or composition with,
creditors, or shall become insolvent or be unable or generally
fail to pay its debts when due, or either becomes in any
jurisdiction a party or subject to (voluntarily or
involuntarily) any liquidation or dissolution action or
proceeding with respect to itself, or to any bankruptcy,
reorganization, insolvency or other proceeding for the relief of
financially distressed debtors is commenced with respect to it,
or a receiver, liquidator, custodian or trustee shall be
appointed for it, or a substantial part of its assets (and with
respect to any involuntary action or proceeding, an order
entered in the proceeding is not dismissed within thirty (30)
days) or it shall take any action to effect or which indicates
its acquiescence in any of the foregoing;
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(b) A change in control of either party takes place. For the
purposes of this agreement, "control" shall mean possession,
directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership
of securities or partnership or other ownership interest, by
contract or otherwise);
(c) Either party attempts to assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
other party; or
(d) Either party materially breaches any provision of this Agreement
and fails to cure such default within thirty (30) days of
receipt of written notice thereof, with the exception of the
reasons for default set forth in 11.2 above, the occurrence of
which give the Corporation the right of immediate termination.
11.4 PROCEDURE UPON TERMINATION. Upon termination of this Agreement, the
Corporation is entitled to restrict or cease deliveries of the Products
to the Dealer, including deliveries on orders already received at the
time of the notice of termination. Also upon termination of this
Agreement, the Dealer shall cease to have any rights, liabilities or
obligations hereunder, with the exception of the Dealer's obligations
under Article 10 Article 13, and Article 14, which obligations shall
survive termination. Notwithstanding the foregoing, except in the event
of termination by the Corporation pursuant to Section 11.3(a) above, the
Corporation is required to make the Products available to the Dealer in
such quantities so as to enable the Dealer to maintain the Dealer's own
delivery commitments existing before the effective date of termination,
subject to proof being given by the Dealer to the Corporation that it
was under unconditional contractual obligations at the time it received
notice of termination to make deliveries which it can not fulfill from
its inventory. After any notice of termination is given, the Corporation
may modify the terms of payment for any subsequent shipment.
11.5 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement,
all of the Dealer's rights with respect to the Trade-marks shall
immediately cease, provided, however, that the Dealer may utilize the
Trademarks to sell any Products remaining in inventory or otherwise
delivered after the said expiration or termination for a period of six
(6) months from the date of termination.
Article 12 - Dealer Fee
12.40 Inconsideration for being appointed as a Dealer for the Territory,
Dealer shall pay to Corporation a Dealer Fee in the amount of $1,500.00
payable upon execution of the agreement.
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Article 13 - Confidentiality
13.1 CONFIDENTIAL INFORMATION. During the Term hereof and thereafter, the
Dealer agrees to keep secret all Confidential Information and will take
all steps and institute any internal secrecy procedures which may be
necessary to maintain the secrecy of the Confidential Information and
further agrees that it shall not use the Confidential Information except
in connection with the performance of its obligations under this
Agreement. Upon termination of this Agreement, Dealer shall immediately
cease to use the Confidential Information and shall return to the
Corporation all documents and copies in its possession or control which
in any way embody or evidence the Confidential Information. As used
herein, the term "Confidential Information" shall mean all information
disclosed to the Dealer or otherwise acquired by the Dealer in
connection with its performance of its obligations under this Agreement,
concerning or relating in any way to the markets, customers, Products,
procedures, plans, operating experience, marketing strategies,
organization, employees, financial conditions or plans or business of
the Corporation, its subsidiaries or Affiliates, except for such
knowledge or information which: (i) is or later becomes publicly known
under circumstances involving no breach of this Agreement by the Dealer;
(ii) was already known to the Dealer at the time it received the
information or knowledge; (iii) is made available to the Dealer by a
third party without secrecy obligation and without breach of its
obligations to the Corporation; or (iv) the Dealer is required by law to
divulge.
Article 14 - Trademarks
14.1 During the Term of this Agreement, the Dealer shall have the limited,
non-exclusive, royalty-free right to use the Trademarks in connection
with the promotion and sale of Products in the Territory, provided
however that the Dealer obtain the Corporation's prior written consent
to use the Trademarks in catalogues, promotional materials, and
advertising materials.
14.2 Use of the Trademarks shall conform to the following requirements:
(a) The Dealer shall not use the Trademarks in any manner other than
as set forth in Section 14.1 above without the prior written
approval of the Corporation.
(b) The Dealer shall not put or retain the Trademarks in the
Dealer's own name or any business name;
(c) The Dealer shall not use the Trademarks in any manner which
suggests an affiliation with the Corporation other than that of
Dealer of the Products;
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(d) The Dealer shall not add to, or use with, the Trademarks, any
other trade name, trademark, symbol or device without the prior
written approval of the Corporation.
(e) The Dealer shall employ any symbol or notice with the Trademarks
which the Corporation advises is necessary, from time to time,
to identify and protect the interest of the Corporation in the
Trademarks.
(f) The Dealer shall apply no other trade name or trade name, nor
any labels, signs or markings of any kind to the Products
without the prior written consent of the Corporation.
14.3 The Dealer hereby acknowledges that the Corporation (or Licensors of the
Corporation) are the sole owners of the Trademarks and the goodwill
pertaining thereto and that nothing contained herein shall constitute an
assignment of the Trademarks or grant to Dealer any right, title or
interest therein, except the right to use it as set forth in this
Article 14. The Dealer agrees that it will not contest the Corporation's
(or the Corporation's Licensors') ownership of the Trademarks, either
during or after the Term.
14.4 The Dealer shall notify the Corporation in writing of any infringement
of the Trademarks in the Territory, of any applications or registrations
for the Trademarks or marks similar to the Trademarks within the
Territory, of any suit or proceeding or action of unfair competition
involving the Trademarks in the Territory, promptly after it has notice
thereof.
14.5 The Dealer agrees that, upon the termination of this Agreement, it shall
have no interest in or right to use the Trademarks in any manner or for
any purpose whatsoever, except for the limited right to sell its then
remaining inventory of Products bearing the Trademarks.
14.6 If the Dealer acquires any rights to the Trademarks for any reason, it
undertakes to promptly return such rights to the Corporation immediately
and without expense to the Corporation.
14.7 The Corporation represents and warrants to the Dealer that (i) it is the
registered owner of the Trademarks and/or is the sole authorized
licensee of such Trademarks in the Territory, pursuant to valid license
agreements and (ii) it has the right, power and authority to enter into
this Agreement and to grant to the Dealer the rights granted hereby.
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Article 15 - Indemnification
15.1 Dealer shall indemnify, defend, and hold harmless the Corporation, its
employees, officers, directors, agents, and representatives (each of the
foregoing hereinafter referred to as "Indemnified Party") of, from, and
against any and all claims, penalties, demands, causes of actions,
damages, losses, liabilities, costs, and expenses including reasonable
attorneys' fees, of any kind or nature whatsoever, arising out of or in
any manner directly or indirectly related to Dealer's obligations under
this Agreement, except to the extent attributable to the negligence or
willful misconduct of the Corporation, its employees, officers,
directors, agents, and representatives.
15.2 The Corporation shall indemnify, defend, and hold harmless Dealer, its
employees, officers, directors, agents, and representatives (each of the
foregoing hereinafter referred to as "Indemnified Party") of, from, and
against any and all claims, penalties, demands, causes of actions,
damages, losses, liabilities, costs, and expenses including reasonable
attorneys' fees, of any kind or nature whatsoever, arising out of or in
any manner directly or indirectly related to the Corporation's
obligations under this Agreement, except to the extent attributable to
the negligence or willful misconduct of Dealer, its employees, officers,
directors, agents, and representatives.
15.3 Notwithstanding anything contained herein, the Corporation or Dealer, as
the case may be (hereinafter referred to as "Indemnifying Party") shall
not have any liability under the indemnity provisions of this Agreement
with respect to a particular matter unless a notice setting forth in
reasonable detail the breach or default which is asserted has been given
to Indemnifying Party within the applicable statute of limitations and,
in addition, if such matter arises out of a suit, action, investigation,
claim or proceeding, such notice is given reasonably promptly after the
Indemnified Party shall have been given notice of the commencement of a
suit, action, investigation, claim or proceeding.
15.4 Upon receipt of notice of any suit, action, investigation, claim or
proceeding for which indemnification might be claimed by an Indemnified
Party, Indemnifying Party shall be entitled promptly to defend, contest
or otherwise protect against any such suit, action, investigation, claim
or proceeding at its own cost and expense. Indemnifying Party shall have
the right to settle or compromise any such suit, action, investigation,
claim or proceeding, without the consent of the Indemnified Party;
provided that such settlement or compromise does not require Indemnified
Party to pay any money and requires the claimant to unconditionally
release Indemnified Party from all liability with respect to such claim
or litigation. Indemnified Party shall have the right, but not the
obligation, to participate at its own expense in a defense thereof by
counsel of its own choosing, but Indemnifying Party shall be entitled to
control the defense unless Indemnified Party has relieved Indemnifying
Party from liability with respect to the particular matter. In the event
Indemnifying Party undertakes the defense of such matters, Indemnified
Party shall not be entitled to recover from Indemnifying Party any legal
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or other expenses incurred by Indemnified Party in connection with the
defense thereof. Article 16 - Insurance
16.1 Corporation and Dealer shall each obtain and keep in force, at its sole
expense, product liability insurance providing adequate insurance
against any claims and suits involving product liability arising out of,
or with respect to, the transactions contemplated by this Agreement, in
an amount not less than One million dollars ($1,000,000.00) combined
single limit on bodily injuries and/or property damage. Within thirty
(30) days after the date of this Agreement, each party shall submit to
the other a certificate of insurance naming each other as an additional
insured and providing that any cancellation or material change or
alteration which reduces coverage or any benefits accruing to the other
party shall become effective only upon thirty (30) days prior notice to
the other party. The requirements of this Article are acknowledged by
each party to be a material term of this Agreement.
Article 17 - Force Majeure
17.1 Neither party hereto shall be liable to the other for delay in any
performance or for the failure to render any performance under this
Agreement when such delay or failure is a direct result of any present
or future statute, law, ordinance, regulation, order, failure to deliver
on the part of its suppliers, judgment or decree, act of God,
earthquake, epidemic, explosion, lockout, boycott, strike, labor unrest,
riot, war, or similar catastrophic occurrence.
17.2 In the event of any such delay or failure, the affected party shall send
written notice by fax of the delay or failure and the reason thereof to
the other party within fourteen (14) calendar days from the time the
affected party knew or should have known of the Force Majeure in
question.
17.3 The provisions of this Article shall not be applicable to any obligation
involving the payment of money.
Article 18 - General Provisions
18.1 GOVERNING LAW. This Agreement and all sales and commission transactions
pursuant hereto shall be governed by the laws of , but without reference
to the choice of law provisions thereof.
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18.2 NOTICES. Any notice, request, demand, waiver, consent, approval or other
communication required to be given pursuant to this Agreement (each, a
"Notice") shall be in writing to the Party's respective addresses as set
forth in the Preamble of this Agreement, or to any other address as
either Party may designate by giving a written notice to the other, and
be deemed effectively delivered:
(a) If delivered personally, upon the date of delivery;
(b) If registered mailed, within 7 working days from the dispatch
thereof;
(c) If delivered by Federal Express or other similar services 3
working days from the dispatch thereof;
(d) If delivered by facsimile, within 24 working hours from the
dispatch thereof.
(e) All Notices are to be given or made to the parties at the
addresses appearing on the first page hereof, or to such other
address as any party may designate by a Notice given in
accordance with the provisions of this Section 18.2.
18.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with Exhibits
hereto, contains the entire agreement and understanding of the parties
hereto with respect to the matters herein set forth, and all prior
negotiations and understandings relating to the subject matter of this
Agreement are merged herein and are superseded and canceled by this
Agreement. This Agreement may not be modified except in writing, signed
by both of the parties hereto.
18.4 TIME OF ESSENCE. Time is of the essence for the performance of each and
every covenant and the satisfaction of each and every condition of this
Agreement.
18.5 COVENANT NOT TO COMPETE. As a material inducement to the Corporation to
enter into this Agreement, Dealer agrees that Dealer shall not engage in
any business activity with any of the Corporation's suppliers (the
identity thereof constituting proprietary information and trade secrets
of the Corporation) during the term of this agreement and for a period
of three years after the termination of this agreement unless otherwise
agreed in writing by Corporation.
18.6 WAIVER. The failure by the Corporation to require the performance of any
term of this Agreement or the waiver by the Corporation of any breach
under this Agreement shall not operate or be construed as a waiver of
any subsequent breach by the Dealer hereto.
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18.7 ASSIGNMENT. Neither party shall assign its rights nor delegate the
performance of its duties or other obligations under this Agreement,
including any claims arising out of or connected with this Agreement,
without the prior written consent of the other party.
18.8 ARBITRATION. Except with respect to equitable remedies provided herein,
including, without limitation, injunction relief, all claims, demands,
disputes, controversies, differences or misunderstandings arising out of
or relating to this Agreement, or the failure or refusal to perform the
whole or any part thereof, shall be referred to and finally resolved by
arbitration to be administered by the International Centre for Dispute
Resolution, a division of the American Arbitration Association ("AAA"),
in accordance with its Commercial Arbitration Rules then obtaining (the
"AAA Rules"). The arbitration shall be conducted before one arbitrator
to be selected by agreement of the parties or, if no agreement can be
reached, in accordance with the AAA Rules. The arbitration shall be
conducted using the English language for all purposes. Either party
hereto may initiate the arbitration by serving a written demand for
arbitration on the other party, which demand shall contain a description
of the nature of the dispute. All hearings of the arbitration shall take
place in Los Angeles, California, United States of America.
The initial fees and costs of the arbitration shall be borne equally and
paid timely by each party hereto. Failure by a party to pay said fees
and costs to the AAA timely shall constitute a material default under
this Agreement. The award shall be final and binding upon the parties,
and the parties agree to be bound by the terms of the award and to act
accordingly. The judgment upon any award may be entered in and
enforceable by any court having jurisdiction over the party against whom
the award has been rendered or wherever the assets of the party are
located. Any award for costs shall include attorney fees.
The parties hereto, and each of them, hereby submit themselves to the
jurisdiction of the state courts of the State of California and the
United States Federal District Court in California in any proceeding for
the enforcement of the award rendered by the arbitrator, and agree that
judgment upon such award may be entered in any court, in or out of the
State of California, having jurisdiction thereof. The arbitrator shall
rule in accordance with the laws of California, without giving affect to
the rules of conflict of laws thereof. The parties to the proceeding
shall have reasonable rights of discovery in accordance with the Civil
Rules of Federal Procedure used in the United States District Court.
Nothing contained herein shall prevent either party from applying to any
court of law in order to obtain injunctions or any equivalent remedy,
against any other party, in order to restrain the breach of any
restrictive covenants pursuant to this Agreement.
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18.9 LETTER OF APPOINTMENT. A Letter of Appointment, in the form attached
hereto as Exhibit "D" shall be furnished by Corporation to Dealer
concurrently with the signature of this Agreement. Dealer shall be
entitled, at its sole discretion, to show such letter to any person in
order to evidence Dealer's appointment hereunder. Upon the termination
of this Agreement, the Letter of Appointment shall automatically
terminate forthwith and shall not be utilized any further by Dealer.
18.10 The terms and conditions herein contained, constitute the entire and
only contract between the Parties hereto with respect to the subject
matter hereof and shall supersede all previous communications,
representations and/or agreements, either written or oral, between the
Parties in respect of such subject matter. No modification of terms and
conditions of this Agreement shall be binding unless agreed upon in
writing and signed by both Parties.
18.11 Each Party hereby warrants, confirms and undertakes that:
(a) It has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
therein;
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and this
Agreement constitutes a valid, legal and binding agreement of
such party, enforceable against it in accordance with its terms;
(c) Neither the execution and delivery of this Agreement by it nor
the consummation of the transactions contemplated hereby will
(i) violate, or result in a default under any note, agreement,
contract, understanding, arrangement, restriction or other
instrument or obligation to which it is a party or by which it
may be bound; or (ii) violate any order, award, injunction,
judgment or decree to which it is subject.
18.12 SEVERABILITY. In case any one or more provisions contained in this
Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein and other applications
thereof shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
CIRALIGHT GLOBAL, INC.
By:
-------------------------------------------
Name: Randall Letcavage
Title: CEO
[DEALER]
By:
-------------------------------------------
Name:
Phone:
Fax:
-------------------------------------------
22
EXHIBIT "A"
PRODUCTS AND TRADEMARKS
PRODUCTS:
SuntrackerOne(TM) & related componenTS
SuntrackerTwo(TM) & related componenTS
TRADEMARKS AND SLOGANS
Ciralight(TM)
Ciralight Global(TM)
Leading the Daylighting Revolution(TM)
Daylight on, lights off(TM)
Smart Skylights(TM)
SuntrackerOne(TM)
SuntrackerTwo(TM)
EXHIBIT "B"
PRICE LIST
(Attached)
EXHIBIT "C"
PRODUCT WARRANTY
(Attached)
EXHIBIT "D"
LETTER OF APPOINTMENT
(Attached)
EXHIBIT "E"
EXCLUSIONS
Ikea
Firestone Roofing Products
Staples
Globalight Energy Solutions, LLC