Exhibit 10.15
CIRALIGHT SMART SKYLIGHTS AUTHORIZED DEALER AGREEMENT
AN AGREEMENT, BY AND BETWEEN CIRALIGHT GLOBAL, INC. ("MANUFACTURER") AND THE
ENERGY SOLUTION GROUP WORLDWIDE, LLC THE ("DEALER") MADE AS OF APRIL 15, 2010
(the "Effective Date") .
In consideration of the mutual covenants herein contained, the parties hereto
agree as follows:
1. GENERAL. This Agreement governs all transactions hereafter entered into
between Manufacturer and Dealer concerning the Products developed and marketed
by Manufacturer.
2. APPOINTMENT. Subject to the terms set forth in this Agreement, Manufacturer
hereby appoints Dealer, and Dealer accepts the appointment by Manufacturer, to
be a non-exclusive, independent Dealer of the products (the "Product(s)")
described in Schedule "A" ("Authorized Products List"). Dealer shall be
authorized to deal in additional products marketed by Manufacturer only if
Manufacturer first signs a new Schedule "A" adding them to the Authorized
Products List and provides written notification of the addition to Dealer.
3. TERRITORY. Dealer shall have the non-exclusive right to promote, sell, and
market Products only in the geographical territory and or market(s) described in
Schedule "B" (the "Territory"), except as otherwise specifically authorized by
Manufacturer in writing. Manufacturer reserves the right to designate others to
sell any of the Products in the Territory. Dealer shall not resell Products to
any person or entity that Dealer has reason to believe will ship the Product
outside the Territory.
4. GOVERNMENT, NATIONAL AND MAJOR ACCOUNTS. Manufacturer and Dealer acknowledge
that in order to maximize market penetration for the Products, it might be
appropriate for Manufacturer, or other authorized Manufacturer dealers, agents
or parties, to sell or otherwise market Products to major end-user accounts,
including national accounts, and government accounts, some of whom may have
multiple end-user locations in different geographic areas including areas within
or outside the Territory. Manufacturer shall have the right to make arrangements
directly with such accounts or with other parties to provide for installation,
warranty and regular service and maintenance. Dealer agrees to use its best
effort to cooperate with Manufacturer and other Manufacturer agents or parties
to adhere to such guidelines as Manufacturer may from time to time establish in
the implementation of any such programs. Manufacturer shall have the right to
designate by written notice to Dealer that such accounts are outside the
Territory of Dealer and Dealer shall not solicit, market or sell Products to
such designated accounts.
5. DEALER NETWORK. Dealer shall have no right to sublicense any of its rights
herein to other dealers or similar third party marketers.
6. INDEPENDENT CONTRACTOR RELATIONSHIP. Nothing contained in this Agreement
shall create an agency relationship, joint venture, partnership or other like
arrangement between the parties, shall be construed to make either party the
agent for the other party for any purposes, and neither party shall have any
right whatsoever to incur any liabilities or obligations on behalf of or binding
upon the other party. Dealer has not been granted a franchise, and Dealer is not
an agent of Manufacturer. Neither party shall have the power or authority to
represent the other party in any manner. Each party will act as an independent
contractor in accordance with the terms of this Agreement and will not at any
time represent orally or in writing to any person or corporation or other
business entity that it has any right, power or authority not expressly granted
by this Agreement. Dealer shall not commit Manufacturer to any contractual
obligation, make any warranties or representations purportedly on behalf of or
approved by Manufacturer with respect to products other than those set forth in
Manufacturer's supplied material.
7. RESPONSIBILITIES OF MANUFACTURER. Subject to the terms of this Agreement,
Manufacturer may at its sole discretion:
(a) provide Dealer, from time to time, with marketing literature,
technical & installation literature, technical advice and assistance
and warranty literature as Manufacturer deems appropriate for the
Products and related goods;
(b) conduct service training and sales and marketing training and programs
for Dealer, as Manufacturer may deem appropriate from time to time;
(c) engage in advertising programs, which may include national, local, or
cooperative advertising (on such terms, including cost allocation, as
may be agreed from time to time by the parties), of such type and
nature as Manufacturer deems appropriate for the successful marketing
of Products and related goods.
8. RESPONSIBILITIES OF DEALER
Pre-sale and post-sale support of the Products by Dealer is critical to the
reputation and success of the Products and related goods in the marketplace.
Dealer acknowledges that its ability and commitment to provide such support and
to market Products are extremely important elements in Manufacturer's decision
to enter into this Agreement. Subject to the other provisions of this Agreement,
Dealer specifically agrees as follows:
(a) BEST EFFORTS - Dealer shall exercise its best efforts to achieve (in a
manner consistent with the other terms of this Agreement) maximum
market penetration for the Products in the Territory. Dealer shall
provide reasonable marketing coverage in the Territory.
(b) SALES ORGANIZATION - Dealer shall establish and maintain a sales
organization of personnel who are fully trained and knowledgeable
about the Products.
(c) INSTALLATION AND END-USER TRAINING - Dealer shall ensure that each
end-user who acquires any of the Products from Dealer is provided
proper installation support and operational training.
(d) REPORTS - Dealer shall monitor its activities with respect to the
Products and shall provide Manufacturer with a report not less than
twenty (20) days after the end of each calendar quarter setting forth
in reasonable detail the following:
(i) sales and inventory for the preceding quarter;
(ii) sales analysis within the Territory;
(iii)forecasts for future sales on a rolling one month, three month
(quarter) and annual basis;
(iv) service and support activity.
(v) photos of completed installations
Manufacturer reserves the right to prescribe the form of such reports and the
level of detail required form time to time by written notice to Dealer.
(e) SYSTEMS - Dealer shall incorporate the Products only into systems or
with other products, including hardware and software, that are
compatible with the Product. Manufacturer shall have the right to
publish lists of compatible and/or incompatible systems and products.
9. PRODUCT DEVELOPMENT
Manufacturer reserves the right, in its sole and absolute discretion, to make
modifications, improvements or changes to Products or related goods or to
discontinue the sale or distribution of any Products or related goods at any
time without incurring any liability whatsoever to Dealer or others. Should
Dealer require, Manufacturer will fulfill outstanding accepted orders for such
discontinued Products. Should Dealer have inventory of any such Product
purchased within sixty (60) days from Manufacturer's announced discontinuance of
such Product, Manufacturer will repurchase at Dealer's cost such Product subject
to receiving Dealer's order for other Products of equal value. The cost of
shipping and handling any returned Product shall be borne by Dealer.
10. PURCHASES
(a) Dealer shall order and purchase Products and related goods from Manufacturer
by written, purchase orders ("Purchase Orders"), which shall (i) be deemed to
incorporate the terms and conditions of this Agreement whether or not reference
to this Agreement is made, (ii) identify each Product ordered by model number,
(iii) indicate quantity, price (on a pro forma basis, with the invoice price to
be determined in accordance with the provisions of this Agreement) and shipping
instructions and (iv) specify Dealer's requested delivery dates. The terms of
Dealer's Purchase Orders shall be subject to and consistent with the terms of
this Agreement and shall be null and void to the extent they vary from, conflict
with or supplement the terms of this Agreement. Purchase Orders will bind
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Manufacturer only to the extent accepted by Manufacturer's written confirmation
or delivery.
(b) Delivery dates given by Manufacturer as part of order acknowledgement for
accepted orders for Products or related goods will be honored by Manufacturer on
a best effort basis.
(c) Accepted orders for Special Order Products or related goods cannot be
canceled or modified by Dealer without Manufacturer's prior written approval.
(d) Dealer must accept all such Products that are not defective. Returned
Products shall be subject to a restocking charge of fifteen percent (15%) of the
invoice price of the Products returned.
(e) Manufacturer reserves the right, without limiting its other remedies under
this Agreement, to refuse to supply Products to Dealer and/or to cancel this
Agreement if (i) Dealer attempts to distribute any Product to persons or
entities outside of the Territory or assists or permits anyone else to do so, or
(ii) Manufacturer receives repeated complaints from end-users of the products
regarding the performance of Dealer's installation or service of the products,
and Dealer fails to cure such complaints to Manufacturer's satisfaction after
reasonable noticer.
(f) Manufacturer reserves the right to reject or cancel any Purchase Order, in
whole or in part, if Dealer is then in breach of this Agreement, including but
not limited to late on payments due to Manufacturer.
(g) Manufacturer reserves the right to establish minimum purchase quantities of
Product as defined by Manufacturer from time to time.
11. PRICES
(a) Product prices are those in Manufacturer's then current Dealer Price List as
set out in Schedule "D". Manufacturer reserves the right to change prices and/or
discounts and the effective date of such change shall be the 30th calendar day
following notice thereof to Dealer.
(b) Any price adjustment will apply to orders received by Manufacturer after the
effective date of price change.
(c) Prices do not include, and Dealer is responsible for, any sales, use,
inventory, value added and like taxes or duties for Products resulting from
Dealer's sales to end-users, including Products to which title has not yet
passed.
(d) All prices are FOB. Manufacturer shall be deemed to have delivered all
Products and related goods when such are put in the custody of a carrier at the
FOB point, at which time all risk of loss or damage shall pass to Dealer not
with standing the reservation of title by Manufacturer as provided in paragraph
12(c) of this Agreement. Dealer shall bear all costs of freight, freight
insurance and associated costs and shall make all arrangements for same from the
FOB point. Within fifteen (15) days after receipt of any Products or related
goods by Dealer, Dealer shall notify Manufacturer in writing of any defect in or
damage to such Products or related goods which occurred prior to the passing of
title of the Products to the Dealer. Failure to do so shall be deemed conclusive
proof that such defect or damage is not attributable to the fault of
Manufacturer and shall constitute a waiver of all claims against Manufacturer
arising out of such defect or damage.
12. PAYMENT
(a) Dealer shall pay for Products in accordance with the terms of Manufacturer's
invoices. 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
Manufacturer's bank account, the details of which will be communicated by
Manufacturer to Dealer from time to time, in two installments as follows:
i. Dealer will pay 50% of the purchase price of any order no later
than ten (10) days prior to the shipment of any order.
ii. Dealer will pay the remaining 50% of the purchase price of any
order no later than twenty-one (21) days after the date the
shipment is picked up from the Manufacturer.
Provided the Dealer fully complies with the payment terms for three consecutive
orders then Dealer's credit terms shall become net thirty (30) days from the
date the order is picked up from Manufacturer. Manufacturer shall be entitled to
charge and Dealer shall pay interest at the rate of two percent (2%) per month
from the date of shipment on overdue invoices. Manufacturer shall have the right
to revert the payment terms back to requiring a 50% deposit and 50% net 21 days
in the event the Dealer defaults on the Net 30 payment terms.
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(b) The supply of credit herein shall be at the discretion of Manufacturer and
Manufacturer reserves the right to withhold delivery of Product if Dealer does
not meet Manufacturer's credit requirements or the amount of Product ordered, or
the amount of Product which remains unpaid (whether or not overdue) exceeds the
limit established by Manufacturer for Dealer.
(c) Title to Products purchased from Manufacturer by Dealer shall pass upon
transfer from Manufacturer's warehouse to the carrier as stated in 11(d) above.
Notwithstanding the foregoing, Manufacturer shall maintain a beneficial interest
in the Product until Manufacturer has been paid in full.
(d) Without limiting any other rights it may have under this Agreement and
applicable law, all of Manufacturer's obligations under this Agreement,
including obligations of supply, or any Dealer purchase order, can be suspended
should Dealer be delinquent in making payment for previously shipped Products.
13. SERVICE RESPONSIBILITY
Dealer acknowledges that the Products may require installation and after-sale
servicing and maintenance by skilled, trained and fully qualified technicians.
Dealer will provide for professional, prompt, and expert installation, and
service support for Products sold in the Territory as outlined from time to time
in Manufacturer's service program.
Dealer shall:
(a) strictly adhere to all installation, service and parts inventory policies
and guidelines established by Manufacturer from time to time. Dealer shall
purchase all components related to the installation and operation of the
products from the Manufacturer or Manufacturer's designated supplier. This shall
include without limitation the skylights, lenses, lightwells and related
accessories. Dealer shall be allowed to supply curbs from third party sources
provided that these parts comply with the specifications provided by the
Manufacturer;
(b) maintain proper installation and servicing tools and facilities;
(c) Dealer shall install the Products in accordance with the Manufacturer's
official 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 Manufacturer's warranty
for such Product.
(d) make available and provide competent maintenance and service support, in a
commercially reasonable manner and rates, to all end-users of Products (and
other Products as Manufacturer may request in writing) in the Territory,
irrespective of whether the Product was sold to the end-user by Dealer.
14. WARRANTY TO DEALER
a) THE MANUFACTURER WARRANTS TO THE DEALER EACH PRODUCT SOLD BY IT TO BE
FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, WHEN PROPERLY
MAINTAINED UNDER NORMAL USE. A COPY OF THE END USER WARRANTY IS
ATTACHED HERETO AS EXHIBIT "C"
b) PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE
DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY THE MANUFACTURER'S
DECISION, BE REPLACED OR REPAIRED, OR, AT THE MANUFACTURER'S OPTION,
CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT
DEALER NOTIFIES THE MANUFACTURER IN WRITING OF SUCH DEFECT WITHIN
THIRTY (30) DAYS OF DISCOVERY AND DEALER RETURNS SUCH PRODUCTS IN
ACCORDANCE WITH THE MANUFACTURER'S INSTRUCTIONS. NO PRODUCTS MAY BE
RETURNED BY THE DEALER WITHOUT THE MANUFACTURER'S PRIOR WRITTEN
AUTHORIZATION.
c) This warranty does not apply to any product which has been subjected
to misuse, modification, abuse, negligence or accident by the dealer
or third parties, or which was not installed in accordance with the
Installation Instructions. THE WARRANTY FOR THE CONTROLLER SHALL
BECOME VOIDED IF THE SEAL OF THE GPS CONTROLLER UNIT IS BROKEN FOR ANY
REASON.
d) No other warranties, express or implied, including any warranties or
conditions regarding merchantability or fitness for a particular
purpose, relating to the use or performance of the product, software,
documentation or services provided by manufacturer is made by
manufacturer to dealer, its dealers or customers. The manufacturer
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
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products, increased operating costs or loss of sales, or any other
damages. To make a claim under this warranty, dealer must notify the
manufacturer in writing within the warranty period.
e) Labor costs incurred under the Manufacturer's warranty for service
work performed by Dealer shall be reimbursed to Dealer by Manufacturer
in accordance with Manufacturer's established repair cost schedule.
f) A Product replaced in warranty will carry the limited warranty for the
balance of the warranty period of the Product that it replaces.
Replacement parts and repaired equipment out-of-warranty will carry a
ninety (90) day warranty on the part, assembly or component that was
replaced or repaired and shall be subject to the same limitations and
exclusions as the Limited Warranty for a similar new Product.
g) Dealer agrees to provide project and customer contact information for
installations to Manufacturer for the purpose of registering Customer
for Manufacturer's Warranty. Manufacturer reserves the right to
contact customers for the purpose of determining their satisfaction
with the Products.
h) The foregoing constitutes the dealer's sole and exclusive remedy and
the manufacturer's sole obligation with respect to products furnished
hereunder.
15. INDEMNIFICATION OF MANUFACTURER BY DEALER. Dealer shall indemnify, defend,
and hold harmless the Manufacturer, 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 Manufacturer, its employees, officers, directors,
agents, and representatives., This shall include but not be limited to;
representations and warranties made by Dealer in respect of the Products or the
system within which it is incorporated which are not contained in Manufacturer
product literature or are not authorized in writing by Manufacturer. And
improper installation, support or maintenance of any system in which the Product
is incorporated.
16. INDEMNIFICATION OF DEALER BY MANUFACTURER. 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.
17. INFRINGEMENT BY PRODUCT
In the event of any claim by a third party against Dealer asserting a patent,
copyright, trade secret or other proprietary right infringement involving the
Product, ,Manufacturer will, at its expense, defend and/or settle such claim,
and will indemnify Dealer against any reasonable cost, legal fees, other
expenses and damages required for such defense or settlement, provided that
Dealer promptly notifies Manufacturer in writing of such claim, and furnishes to
Manufacturer copies of all letters and other documents relating to the
allegation of infringement. Manufacturer shall be given full and sole authority
to defend and settle such claim, action or allegation of infringement. If
Manufacturer requests, Dealer agrees to assist and/or cooperate with
Manufacturer in such defense and/or settlement. Manufacturer shall not be
obligated to defend or settle or be liable for costs, fees, expenses or damages
if the infringement claim arises out of Dealer's special specifications,
designs, drawings, instructions or other requirements or out of any addition to
or modification of the Product or any combination thereof with other products
after delivery by Manufacturer or from use of the Product in the practice of a
process or system, in which case Dealer shall assume the defense and/or
settlement thereof and pay all costs, fees, expenses, or damages incurred by
Manufacturer. If any infringement claim is brought against Dealer or
Manufacturer, or if in Manufacturer's opinion the Product is likely to become a
subject of a claim of infringement or violation of any patent, copyright, trade
secret or other proprietary right of any third party, Manufacturer shall be
entitled at its option: (a) to procure for Dealer the right to continue the sale
and/or use of the Product at Manufacturer's expense by acquiring a license in
the name of Manufacturer, (b) to replace or modify the Product so as not to
infringe such third party's rights while conforming, as closely as possible to
original specifications or (c) to discontinue further supply of the Product.
THE FOREGOING STATES THE ENTIRE LIABILITY OF MANUFACTURER AND DEALER IN RESPECT
TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER PROPRIETARY
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RIGHT OF ANY THIRD PARTY AND IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED,
IN REGARD THERETO, AND IN NO EVENT SHALL MANUFACTURER OR DEALER BE LIABLE FOR
DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS.
18. RESTRICTIONS Dealer shall not alter or modify any of the Products or their
constituent elements and shall not: (a) reverse engineer, interrogate, or decode
any of the Products or program components of the Products; or (b) attempt to
bypass or to defeat any protection methods which have been applied by
Manufacturer to prevent unauthorized uses of the Products.
Dealer agrees that it will not provide compensation, directly or indirectly,
whether in the form of cash, gifts (in the aggregate value of $50 or more),
benefits, perquisites or emoluments of any kind or nature, including, but not
limited to, offers of present or future employment, to any officer, agent,
employee or Board Member of the Manufacturer, or any of its or their respective
associates or designees, unless such compensation is fully disclosed to and
approved by the Board of Directors of the Manufacturer. This prohibition shall
remain in effect for so long as this agreement is in effect, and for so long as
any such individuals or legal entities are employed by or affiliated with the
Manufacturer, and for a period of one year after their departure from the
Corporation or their termination as Distributor(s) or their association
therewith. Dealer agrees to notify the Board of Directors upon receiving a
request or overture from any such party for compensation within Seventy Two
hours of receiving such request.
19. INTELLECTUAL PROPERTY RIGHTS
(a) Dealer acknowledges and agrees that it has no right, title or interest in or
to the name "Ciralight" or to any logos, trade-names, or trademarks (registered
or not) (collectively the "Marks") used in connection with the products or any
goods or services from time to time marketed by Manufacturer (including, without
limitation, with respect to the Products). Dealer shall not use the Marks in any
way in connection with marketing or servicing goods or services, other than in
accordance with the provisions of this Agreement or except as may be expressly
authorized by Manufacturer in writing. Under no circumstances shall Dealer
deface, alter, remove or cover a Mark, insignias, serial number or lettering
which is on a Product at the time of delivery.
(b) Dealer shall not include the name "Ciralight" or any variation thereof in
any portion of Dealer's name or any name under which Dealer does business. In
accordance with the above, Dealer shall have the right to use the trademark
"Ciralight" in its approved standard form solely in connection with the sales,
advertising and promotion of the Products and not for any other purpose. Dealer
shall not use any mark or name other than as herein permitted in connection with
the sale of Products.
(c) Dealer will abide by any usage rules established from time to time by
Manufacturer in respect to its Marks.
(d) Dealer may refer to itself as a "Authorized Ciralight Dealer" in connection
with the promotion, sale, marketing or service of Authorized Products in the
Territory, provided such right shall cease upon termination of this Agreement.
Dealer shall submit to Manufacturer full particulars prior to use of the same
and shall not proceed with such use until Manufacturer's written approval shall
have been obtained.
(e) Dealer acknowledges that any and all of the patents, designs, trademarks,
copyrights, and other rights including any unpatented confidential production
method used or embodied in connection with the Product will remain the sole
property of Manufacturer. Except as expressed in this Agreement, nothing in this
Agreement shall be construed as granting or conferring to Dealer or its'
customers any rights by license or otherwise, expressly implied or otherwise,
for such patents, designs, trademarks, copyrights or other rights, including any
unpatented confidential production method.
20. TERM
(a) This Agreement shall extend for three (3) years following its effective date
and shall be automatically renewed thereafter from year to year. Either party
may terminate this Agreement on not less than ninety (90) days written notice to
the other.
(b) Other than as set forth above, termination or cancellation shall not relieve
either party of obligations incurred prior thereto (including Dealer's
obligations to pay the purchase price of the Product theretofore shipped to
Dealer and to continue to comply fully with Dealer's representations and
warranties set forth herein).
(c) Manufacturer shall have the right at any time thereafter to terminate or
cancel this Agreement upon giving written notice to Dealer and which shall be
effective immediately if: (i) Dealer fails to meet the terms of payment
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hereunder for any two (2) months in any twelve (12) consecutive months of the
term of this Agreement; (ii) a petition of bankruptcy has been filed by or
against Dealer; (iii) Dealer has made an assignment for the benefit of
creditors; (iv) a trustee, receiver or liquidator or similar person has been
appointed or applied for by Dealer or has taken possession of its assets; (v)
Dealer becomes insolvent; (vi) there is a bulk sale or attempted bulk sale of
Dealer's assets; (vii) there is an institution of proceedings for the
dissolution or liquidation of Dealer's assets by a third party; (viii) Dealer
fails an audit of its service and support capability conducted by Manufacturer
as referenced in section 14 and does not rectify the problem within the time
specified by Manufacturer; or (ix) if there is any other breach of the
provisions of this Agreement by Dealer and Dealer does not rectify such breach
within thirty (30) days of written notification from Manufacturer. Dealer agrees
to immediately notify Manufacturer of any circumstances that would give
Manufacturer grounds to terminate this Agreement.
(d) Manufacturer shall not by reason of the termination of this Agreement be
liable to Dealer for any loss, reimbursement, compensation or damages including,
without limitation, the loss of present or prospective profits on sales or
anticipated sales or of expenditures, investments or commitments made either in
connection therewith or in connection with the establishment, development or
maintenance of Dealer's business.
(e) On termination of this Agreement, Dealer agrees that it shall upon the
effective date of the termination or cancellation: (i) refrain from exercising
or attempting to exercise any right or privilege granted to it under this
Agreement; (ii) discontinue its use of and relinquish any and all rights to the
Marks that Manufacturer has authorized or permitted Dealer to use (iii) to
return or destroy all promotional, advertising or technical material bearing
such designations, and any other material furnished to Dealer free of charge by
Manufacturer during the term of this Agreement.
21. EVENTS UPON TERMINATION
(a) Upon the effective date of termination, Dealer shall pay Manufacturer for
all Products delivered irrespective of the date of delivery and all other
amounts to which Manufacturer is entitled under this Agreement or any Purchase
Orders. Dealer will have the right to market and distribute, in accordance with
the terms of this Agreement, Products in its inventory which Manufacturer does
not elect to repurchase; after Dealer has sold such Products or earlier upon
Manufacturer's request, Dealer will return or destroy related unused advertising
and promotion materials, relevant information including price lists.
(b)Termination will not affect Manufacturer's warranty obligations to Dealer.
(c) Regardless of the reason for termination, Dealer will be required to
maintain the confidentiality of any confidentiality/proprietary information it
has received during the course of the Agreement until such information becomes
part of the public domain through no breach of this Agreement or if written
permission for disclosure has been given by Manufacturer.
22. FORCE MAJEURE
Manufacturer shall not be liable to Dealer or customers or others, for failure
of Manufacturer to fulfill its obligations under this Agreement, and/or for
delays in shipment or failure to manufacture or provide Products, documentation,
education or other services if such delay or failure results directly or
indirectly from any cause or event beyond its reasonable control, including but
not limited to acts of God, of civil or military authorities, of public enemy,
terrorism, war, riots, civil disturbances, insurrection, accidents, fire,
explosions, earthquakes, floods, the elements, strikes, labor disputes, shortage
of suitable materials, labor or transportation. Neither Manufacturer nor Dealer
shall be in default on any obligation hereunder if such default results from the
aforementioned causes (which are not within the reasonable control of the party
affected).
23. DISPUTE RESOLUTION
In the event of any dispute, claim, question or difference arising out of or
relating to this Agreement, the parties hereto shall use their best endeavors to
settle such disputes, claims, questions or differences. To this effect, they
shall consult and negotiate with each other, in good faith and understanding of
their mutual interest, to reach a just and equitable resolution satisfactory to
both parties. If they do not reach such resolution the disputes, claims,
questions or differences shall be finally settled by Mediation pursuant to (a)
below and in the event that a resolution is not achieved by mediation by
arbitration pursuant to (b) below:
(a) Mediation shall be conducted in accordance with the "Rules of Procedure" of
the California Community Dispute Services of California;
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(b) 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.
24. GENERAL
(a) The parties agree to observe complete confidentiality with regard to any
confidential information which is disclosed to one party by another. For the
purposes hereof, "confidential information" shall mean all financial information
(including without limitation all financial statements, forecasts and financial
records), all operating information (including without limitation all
information relating to pricing and distribution of the Products and all
customer lists), all technical information (including without limitation
description of the Software and its development) and all strategic corporate
plans including marketing plans acquired by a party from the other party or
others employed or engaged by such party; it being understood, for greater
certainty, that "confidential information" does not include information which:
i) is available to the public or in the public domain or later falls in
the public domain otherwise than as a result of a breach of this
Agreement;
ii) is disclosed with the prior written approval of the Party supplying
such information;
iii) is not identified as confidential information; or
iv) is compelled by law or judicial process to be disclosed.
(b) If any term of this Agreement shall for any reason be held to be
unenforceable, invalid or illegal, the remainder of this Agreement shall remain
valid, legal and enforceable according to its terms. This Agreement shall be
binding upon the successors and permitted assigns of the parties.
(c) Should any dispute be commenced between the parties or their personal
representatives concerning any provision of this Agreement or the rights and
duties of any person in relation thereto, the party prevailing in such dispute
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for their attorney's fees in such proceeding which shall
be determined by the court or arbitrator, as the case may be in such proceeding
or in a separate action brought for that purpose.
(d) This Agreement may not be modified or amended except in writing signed by
the parties.
8
(e) This Agreement constitutes the entire Agreement between the parties with
respect to its subject matter and supersedes all prior oral and written
proposals and communications. The terms of this Agreement shall prevail
notwithstanding any variance with the terms and conditions of any purchase order
submitted by Dealer. No representation or statement not contained on the
original copy of this Agreement shall be binding on Manufacturer as a warranty
or otherwise.
(f) All notices under this Agreement shall be in writing and shall be effective
when mailed or otherwise placed in transmission to the other party at its office
address indicated below or such other address as may be designated by either
party to the other in writing.
(g) This Agreement shall be governed by and construed in accordance with the
laws of the State of California and the laws of the USA applicable therein.
Dealer consents to the jurisdiction and venue of the state and federal courts
situated within the state of California upon service of process made in
accordance with the laws of California and the USA, provided that Manufacturer
at its option may commence legal proceedings in any jurisdiction in which Dealer
carries on business and in such case Dealer consents to the jurisdiction and
venue of the courts situated in such jurisdiction upon service made in
accordance with the applicable laws of such jurisdiction. Dealer further agrees
that suits initiated by Dealer upon any and all causes of action, whether or not
such causes of action have arisen under this Agreement and regardless of the
legal theory upon which such causes of action are based, shall be brought
exclusively in a state or federal court situated within the state of California.
Any suit between the parties, other than for payment of the purchase price of
the Products or for indemnification under section 18 of this Agreement, shall be
commenced, if at all, within one (1) years of the date that the cause of action
accrues.
(h) This Agreement or any performance due under it may not be assigned by Dealer
without the prior written consent of Manufacturer. Any purported assignment by
Dealer or any substantial change in the ownership or control of Dealer shall
permit Manufacturer to terminate for cause. Dealer must notify Manufacturer
immediately of any change in control of Dealer. For the purposes hereof, a
"change in control" means the acquisition by a person of shares representing at
least 50% of the voting shares of Dealer or of any person controlling Dealer.
(i) Manufacturer may assign its interest in this Agreement or any portion
thereof without the consent of Dealer.
(j) Dealer shall pay all sums owing to Manufacturer in accordance with the terms
of this Agreement, without any deduction or abatement and Dealer shall have no
right of set-off.
(k) No waiver by Manufacturer of any breach/default shall operate as a waiver of
any other breach/default or of the same breach/default on a future occasion. No
delay, course of dealing, or omission on the part of Manufacturer in exercising
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Manufacturer of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or remedy.
(l) The provision of sections 12 and 14 to 21 inclusive shall survive the
termination of this Agreement.
(m) This Agreement shall not be binding upon Manufacturer until it has been
executed by Manufacturer's CEO.
(n) This Agreement shall be executed in duplicate, each copy being considered an
original but both taken together shall constitute but one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under the
hands of their duly authorized representatives:
CIRALIGHT GLOBAL, INC THE ENERGY SOLUTION GROUP
WORLDWIDE, LLC
By: /s/ Jeff Brain By: /s/ Brian Gould
-------------------------------- --------------------------------
Name: Jeff Brain Name: Brian Gould
Title: President & CEO Title: Partner/CEO
Fax: 877-520-5995 Fax: 800-658-1421
Address: 670 E. Parkridge Suite 112 Address: 937 Burrell Ave.
Corona, CA 92879 Columbus, OH 43212
9
AUTHORIZED DEALER AGREEMENT
SCHEDULE A
AUTHORIZED PRODUCTS LIST
In accordance with section 2 of the Manufacturer Authorized Dealer Agreement,
the following is the list of AUTHORIZED PRODUCTS.
* Ciralight Smart Skylight - Model: SuntrackerOne
* Ciralight Smart Skylight - Model: SuntrackerTwo
* Related Accessories
Initials: _________________ Initials: __________________
10
AUTHORIZED DEALER AGREEMENT
SCHEDULE B
TERRITORY & MARKETS
TERRITORY. In accordance with section 3 of the Manufacturer Authorized Dealer
Agreement, the following sets forth the TERRITORY in which Dealer may promote,
sell and market PRODUCTS:
Wisconsin, Michigan, Ohio, Illinois, Indiana, Missouri, Kentucky, West Virginia,
Tennessee, Georgia, South Carolina, Florida and Minnesota
- --------------------------------------------------------------------------------
MARKETS. In accordance with section 3 of the Manufacturer Authorized Dealer
agreement, the following sets forth the specific MARKETS in which Dealer may
promote, sell and market PRODUCTS:
* Commercial (Retail, Office)
* Industrial - (Warehouse, Factories)
* Government - (Airports, Prisons, Public Facilities, Community
Centers), Government Buildings)
* Military - (Military Base Facilities)
* Education - (Schools, Colleges)
* Residential - (Multi-Family, Single Family)
Notwithstanding anything to the contrary herein, Manufacturer agrees to grant to
Dealer the exclusive right to represent the Products to the following businesses
under the terms and conditions set forth herein:
Dealer shall be granted the exclusive right to represent the Products for a
period of one year from the Effective Date of this agreement for the following
list of Companies;
Tremco, Eco Engineering (an Ohio Lighting Company), Perfection, Emcor/Viox, Linc
Mechanical, Air Force One (an Ohio HVAC Company), Plug Smart, Energy Systems
Group (Indiana Retrofit General Contractor), Georgetown Midwest, Advance
Drainage Systems, The Limited Brands, Abercrombie & Fitch Co., American Eagle,
Dick's Sporting Goods, Dress Barn, Golf Galaxy, Darden Restaurants, Bob Evans,
Travel Centers of America, Pilot Travel Centers, Tire Kingdom, NTB (Tire
Centers).
In the event that during the initial one year period of exclusivity any of the
above listed companies purchases four or more Ciralight Smart Skylights, then
the exclusive right to represent the Products for that company shall
automatically renew under the same conditions for an additional one year period,
commencing on the anniversary of the Effective Date of this Agreement. This
shall continue for the Term of this agreement and any extension thereof. In the
event any of the foregoing companies do not purchase four or more Ciralight
Smart Skylights during the initial exclusive period or in any extension thereof,
then at the end of the then current exclusive period, the exclusive rights under
this provision to represent that company shall terminate and the Dealer's rights
to service that company shall thereafter (if at all) be in accordance with the
territorial and other limitations and restrictions as are otherwise applicable
hereunder or imposed at the allowable discretion of the Manufacturer.
The Manufacturer, in its sole discretion, may elect to continue the exclusive
period granted to Dealer for any of the above companies regardless of whether
Dealer has met the requirements of this provision in regard to a listed Company.
11
AUTHORIZED DEALER AGREEMENT
SCHEDULE B
TERRITORY & MARKETS
(Continued)
CIRALIGHT GLOBAL, INC. THE ENERGY SOLUTION GROUP
WORLDWIDE, LLC
By: /s/ Jeff Brain By: /s/Brian Gould
------------------------- -----------------------------
Name: Jeff Brain Name: Brian Gould
Title: President & CEO Title: Partner/CEO
12
AUTHORIZED DEALER AGREEMENT
SCHEDULE C
Warranty
(Attached)
13
AUTHORIZED DEALER AGREEMENT
SCHEDULE D
DEALER PRICE LIST
(Attached)
14