RETAILER AGREEMENT (the "Agreement") THIS AGREEMENT made the 10 day of September, 2008 BETWEEN: ZENN MOTOR COMPANY LIMITED, a corporation incorporated pursuant to the laws of the Canadian Province of Ontario, ("ZMC") whose address is 85 Scarsdale...
EXHIBIT
10.4
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"Authorized
Personnel" and on the Retailer's representation, warranty and assurance
that the personal services of such person(s) will be provided in the
operations and management of the Retailership. ZMC is entering into this
Agreement in reliance on the representation and warranty of the Retailer
that Schedule F hereto fully and accurately identifies all persons having
any direct or indirect legal or beneficial interest in the Retailer and
the nature of any such interest. The Retailer shall promptly notify ZMC of
changes in its management or any direct or indirect changes in its
ownership including without limitation any changes in the interests held
by the persons identified in Schedule F. ZMC reserves the right to
terminate this Agreement if there is any change in the direct or indirect
ownership or operating management of Retailer which would adversely affect
ZMC, however accomplished, without the written consent of ZMC, such
consent not to be unreasonably withheld.
1.5
Volume Commitment.
Retailer
agrees to purchase a minimum quantity of Products each year as identified
in Schedule "A", such Schedule to be reviewed and updated annually as
applicable 60 days prior to the anniversary of this Agreement. In the
event of Retailer failing to meet any Minimum Commitment during the Term,
Retailer may make up the shortfall in the following quarter, however in
the event that Retailer fails to meet its Minimum Commitment by the end of
said following quarter, ZMC may terminate this
Agreement.
2
RESPONSIBILITIES OF RETAILER
2.1
Best Interest of ZMC.
Retailer
shall use its reasonable commercial efforts to market, sell and distribute
the Products within the Territory and shall, at all times, serve and
promote the best interest of ZMC. Retailer shall not engage in any
activities, practices or business endeavors that
would:
(a)
hinder
ZMC's ability to perform its obligations
hereunder;
(b)
reflect
adversely upon the reputation of ZMC, its employees, or sales
organization;
(c) diminish
or detract from the sales potential of the Products or their
attractiveness to customers; or
(d) constitute
a false or misleading representation to a customer, or others regarding
ZMC or the Products. Retailer shall not make any representations,
warranties or guarantees with respect to the Products or the
specifications, features or capabilities of the Products or publish any
technical description of the Products, except as expressly set forth in
ZMC's documentation accompanying the Products or ZMC's literature
describing the Products.
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(the
"Agreement")
THIS
AGREEMENT made
the 10
day of September, 2008
BETWEEN:
ZENN
MOTOR COMPANY LIMITED, a corporation incorporated pursuant to the
laws of the Canadian Province of Ontario, ("ZMC") whose address is 00
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0, and EVCARCO,
INC. DBA XXXxxXx.xxx , a corporation
incorporated
pursuant
to
the
laws
of
Nevada ("Retailer")whose
address is
0000
XXXX XX. FORT WORTH, TX
76118 ;
WHEREAS
Retailer desires to distribute the products identified in Schedule
"A" and/or any products periodically supplied to Retailer by ZMC for
distribution in accordance with the terms of this Agreement (the "Products");
AND
WHEREAS ZMC desires to appoint Retailer as a Retailer of the
Products in the geographic territory identified in Schedule "A" (the "Territory");
NOW
THEREFORE in consideration of the foregoing and the mutual
agreements contained herein (the receipt and adequacy of which are
acknowledged), the parties agree as follows:
1
DISTRIBUTION RIGHTS
1.1
Rights.
ZMC
grants to Retailer and Retailer accepts the non-exclusive right to market
and distribute the Products, in the form provided by ZMC, within the
Territory during the term of this Agreement. Retailer shall not actively
promote the Products, solicit customer orders or establish distribution
facilities outside the Territory, without the expressed written consent
from ZMC. Notwithstanding the foregoing this agreement specifically
excludes selling to sub- Retailers, re-sellers, or retail retailers in the
Territory.
1.2
Rights Reserved to ZMC.
Notwithstanding
the above, ZMC reserves the right to market and sell directly to the
Federal Government and it's agencies or to Fleet Sale opportunities in
accordance with the program as outlined in Schedule C, or as amended by
ZMC from time to time. ZMC may terminate Retailer's rights to any specific
Product immediately upon written notice for Retailer's failure to meet
it's obligations as set out in this Agreement. Upon receipt of such
notice, Retailer shall cease its marketing, selling, distribution, import
and export of such Products within the time period specified in such
notice but in any event not more than 90 days.
1.3
Changes and Improvements
ZMC
shall have the right to discontinue selling any model or line of
Automobiles, Parts and Accessories without incurring any obligation or
liability to the Retailer. ZMC shall have the right to make changes in the
design of or add improvements to any of the Products, at any time, without
incurring any obligation or liability to the Retailer to make or install
the same on any Products ordered by the Retailer prior to such change or
addition.
1.4 Management
and Ownership
ZMC is entering into
this Agreement in reliance on the capabilities of
the person(s) identified in Schedule "F" hereto
entitled
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2.2
Changes to Premises
The
Retailer shall not move or substantially modify or change the usage of any
of the facilities which comprise the retailership premises, nor shall the
Retailer directly or indirectly establish or operate in whole or in part
any other locations or facilities for the sale or service of the Products
or the sale of used vehicles, unless in any such case the Retailer has
established to the satisfaction of ZMC that such move, modification or
change is in the best interests of the Retailer and ZMC, and ZMC has given
its prior written consent thereto, such consent not to be unreasonably
withheld .
2.3 Personnel
The
Retailer shall employ such numbers and classifications of properly trained
and competent sales and service personnel of good character as will enable
the Retailer to fulfill all of its obligations hereunder in a timely and
effective manner.
2.4 Insurance
The Retailer shall at its own
expense maintain a comprehensive general liability insurance
policy or policies against all types of risks and liability protecting the
Retailer and ZMC and their respective officers and employees against
any loss, liability or expense due to claims resulting from or arising
out of personal injury, death or property damage or otherwise
arising out of or occurring in connection with the retailership.
The Retailer shall keep the Retailership premises and the
Products in the Retailer's possession insured, for full
replacement value, against loss or damage. Such policy or policies
shall be with such insurers and in such amounts as is customary in
the trade. Further, such policy or policies shall provide that the
insurer will give ZMC at least thirty (30) days' written notice prior
to any material alteration, cancellation or termination for
any cause. The Retailer shall upon request provide ZMC with evidence
satisfactory to ZMC of compliance with the foregoing
terms and conditions. Notwithstanding the foregoing,
ZMC shall not be responsible for providing insurance of any
description.
2.5
Reporting.
Retailer
shall submit to ZMC the following regular reports in a format from time to
time specified by ZMC:
(a)
end-of-month
inventory report by Product and Retailer stocking location;
(b)
monthly
sales-out data by customer and by Product
(c)
upon
execution of this Agreement and within ten (10) days from the end of each
calendar month thereafter, Retailer will provide ZMC with a written
forecast setting forth Retailer's anticipated monthly needs for
the delivery of Products during the four (4) calendar months period
including current month beginning immediately after the month in which the
forecast is provided; and
(d)
annual
marketing plan for the sale ZMC Products within the Territory, updated
quarterly or as otherwise requested by ZMC.
2.7
Stocking Levels.
Retailer
agrees to maintain a reasonable amount of inventory of each Product in
each stocking location and at minimum shall at all times have a minimum of
four ZENN vehicles in stock with at least one ZENN vehicle on display at
its Retailership for customer demonstration purposes.
2.8
No Modifications of Products.
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Retailer
shall immediately report to ZMC any technical problems in the Products
discovered by or reported to Retailer. Retailer shall not make or
authorize any third party to make any alterations or modifications to the
Products except as authorized in writing by ZMC or as provided for in the
ZMC Warranty.
3
RESPONSIBILITIES OF ZMC
3.1
Product Training.
ZMC
may offer initial or periodic training, and other promotional activities
at Retailer's site. All activities are subject to mutual agreement and
each party shall bear its own costs relating to such
training.
3.2
General Promotional Material.
ZMC
shall make available to the Retailer English language literature and price
lists. All Retailer-generated materials about the Products for mailing
and/or publication must receive prior approval from ZMC. ZMC reserves the
right to limit any promotional and/or advertising activities which are in
its opinion detrimental to ZMC. Retailer shall not use any ZMC trade name
or mark on any service or product other than the Products.
3.3
Co-Op Advertising Funds
ZMC
may from time to time offer a co-op advertising and marketing program, the
details for which will be communicated in a Retailer
Bulletin.
3.4
Compliance.
ZMC
will take all reasonable steps to ensure that the Products are in
full compliance with all applicable standards, laws or regulations as
required for sale of Products by Retailer. Retailer shall promptly provide
ZMC with any and all information useful or necessary to such regulatory
compliance in the Territory.
3.5
Recalls.
ZMC
shall have at all times the right to recall from the end users of the
products, any defective Products and to replace same at ZMC's
expense.
4
CONFIDENTIAL INFORMATION
4.1
Confidential Information of ZMC.
Xxxxxxxx
agrees and acknowledges that certain information provided by ZMC pursuant
to this Agreement, is or encompasses trade secrets or confidential
information of ZMC or its suppliers ("Confidential Information"). Retailer
shall not make the Confidential Information available in any form to any
person other than Retailer's employees whose job performance requires such
access. Retailer shall take appropriate steps to protect the
confidentiality of the Confidential Information to ensure that any person
permitted access to the Confidential Information has signed a written
non-disclosure agreement with Retailer and does not provide the
Confidential Information to others. Retailer shall not be liable for the
disclosure of Confidential Information which: (a) is known to Retailer
lawfully by its own efforts prior to being received from ZMC; (b) is or
becomes publicly known through no wrongful act of Retailer; (c) is
obtained by Retailer lawfully from a third party not having an obligation
to maintain confidentiality and not being in wrongful possession of the
confidential information; (d) is independently developed by Retailer
without breach of this Agreement; (e) is disclosed under operation of law;
or (f) is disclosed by Retailer with ZMC's prior written
approval.
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5
ORDERING OF PRODUCTS
5.1
Purchase Orders.
Retailer
agrees to issue purchase orders, which may be issued against blanket
purchase orders (individually an "Order"
and collectively, "Orders"),
for all Products in accordance with the terms of this Agreement.
Each Order shall be in the form of a written or electronic communication
and shall contain the following information:
(a) a
description of the Products required;
(b)
the
quantity of Products required;
(c)
the requested delivery date;
(d)
the location to which the Products are to be
shipped;
(e)
the
location to which invoices shall be sent for payment;
and
(f) transportation
instructions.
The
Retailer shall from time to time notify ZMC in writing of the names of
those individuals who are authorized to order Products on behalf of the
Retailer. In the event of a conflict between the Order and the terms and
conditions contained in this Agreement and the Schedules hereto, the terms
and conditions contained in this Agreement and the Schedules hereto shall
supersede the Order. Orders for Products are at all times subject to
acceptance by ZMC, which may be in whole or in part. All orders submitted
by the Retailer shall be irrevocable by the Retailer unless and until they
are rejected by ZMC, provided however that in the event of a partial
acceptance by ZMC the Retailer may withdraw the part of the order not
accepted.
5.2
Acceptance of Purchase Orders.
No
modification to any Order, this Agreement or the attachments hereto and no
inconsistent or additional terms contained in any quotation, purchase
order, acknowledgment or invoice, shall be valid without the prior written
consent of an authorized representative of ZMC and Retailer as set forth
herein and as may be amended from time to time. ZMC's failure to object to
any provisions contained in any communication from Retailer shall not be
deemed a waiver of the provisions of this Agreement and the attachments
hereto. The provisions of this Agreement supersede all prior oral or
written quotations, communications, agreements and understandings of the
parties with respect to the subject matter of this Agreement. These terms
and conditions shall be applicable whether or not they are attached to or
enclosed with the Products to be sold hereunder.
5.2
Delivery and Lead-time.
All
Products shall be delivered by ZMC FOB Montreal, Canada unless otherwise
agreed to in writing by ZMC. Estimated lead-time for delivery of standard
ZMC Products and regular inventory spare parts covered by this Agreement
will be ninety (90) days after receipt of an Order acceptable to
ZMC.
5.3
Rescheduling/Cancellation.
Once
an Order has been accepted by ZMC by way of a purchase order
acknowledgement, rescheduling and/or changes to any Orders are to be
submitted to ZMC in writing and are subject to the following terms.
Specifically, any Order:
(a) providing
for delivery or currently scheduled to be delivered within thirty (30)
days may not be canceled, rescheduled and/or changed;
and
(b)
providing
for delivery in excess of thirty-one (31) days,
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may
not be cancelled or changed, but may have its delivery date rescheduled up
to thirty (30) days later at no charge to Retailer provided Retailer may
only reschedule such Order once.
Any
exceptions to these requirements must be reviewed and approved in writing
by ZMC.
5.4
Title and Liability.
Title
to all Products shall pass to the Retailer from ZMC only upon payment in
full to ZMC for the Products. Until ZMC has received payment in full, all
right, title and a purchase money security interest in and to the Products
and a purchase money security interest in all proceeds thereof shall
remain with ZMC. The Retailer agrees to execute any and all conditional
sales contracts, security agreements, documents and notices as may be
required to preserve, protect and perfect the retention of title and
security interests of ZMC in the Products and the proceeds thereof under
all applicable laws
5.5
Package and Shipment.
All
Products shall be packaged and packed in accordance with ZMC's normal
practices. All
shipping and delivery dates are estimates only. ZMC is not
responsible for any late, lost or misdirected shipments and will not be
liable for any damage, loss or expense incurred by Retailer for a failure
to meet specified shipment dates or a failure to provide the correct
quantity of Products ordered. ZMC will use commercially reasonable efforts
to deliver orders on the date identified on the acknowledgement. If ZMC is
unable to deliver on the date indicated, ZMC will notify Retailer and
provide a new delivery date.
5.6
Inspection.
All
Products purchased hereunder are subject to Retailer's inspection and
acceptance provided that if Retailer has not rejected the Products in
writing within two (2) business days of receipt, Retailer shall be deemed
to have accepted such Products. Retailer may not reject partial shipments
on the basis that they are not a full order. No Product shall be returned
to ZMC without ZMC's written consent and a Return Material Authorization
("RMA") number, which number will be issued by ZMC in accordance with its
RMA procedures. The RMA number must accompany any returned Products. ZMC
reserves the right to refuse any Products returned without proper
authorization or without proper identification of RMA number at ZMC's
point of entry.
6
PRICE, PAYMENT,
TAXES AND DUTIES
6.1
Wholesale Prices.
The
price for each Product shall be as set out in Schedule "B", as amended in
writing by ZMC from time-to-time. ZMC shall in its sole discretion specify
the effective date of the Prices if and when changed. All pricing and
payments are listed in United States Dollars and will be calculated on an
FOB ZMC production facilities basis. Payment for Products is due in
accordance with Schedule
"B".
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Suggested Retail Price
ZMC
will issue from time to time "Retailer Price Bulletins" which will
set forth ZMC's "Suggested Retail Price" for the Products. The Retailer is
under no obligation to accept such Suggested Retail Price and may sell for
less if it chooses. If it chooses to sell at prices less than those
suggested, the Retailer will not suffer in any way in its business
relations with ZMC or any other person over whom ZMC has control or
influence. However, the Retailer shall not represent, either directly or
indirectly, to any person that the suggested retail price for any Product
is greater than the Suggested Retail Price.
6.3
Sales and Service Records and Reports
The
Retailer shall keep complete, accurate and current records regarding the
sale and servicing of Products, including without limitation records in
respect of warranty work and recalls, and shall furnish to ZMC such
reports and information based on those records as ZMC may reasonably
request. The Retailer shall prepare, keep current and retain records, in
accordance with such policies and procedures designated by ZMC, in support
of all requests to ZMC for reimbursement or credit.
6.4 Financial
Records and Reports
The
Retailer shall furnish to ZMC quarterly, within 45 days of the end of each
calendar quarter, complete and accurate financial and operating statements
covering the preceding quarter and calendar year-to-date operations and
showing the true and accurate condition of the Retailership and the
Retailer.
6.5
Inspection of Records
The
Retailer shall permit ZMC or its representatives, at any time during
normal business hours and without prior notice, to examine, audit,
reproduce and take copies of all reports, accounts and records pertaining
to the sale, inventorying and servicing of Products including, but not
limited to, records in support of claims for reimbursement or credit from
ZMC. ZMC shall provide the Retailer with particulars of any documents
which may be copied and taken in the course of any such examination. ZMC
may, with the prior approval of the Retailer, which approval shall not be
unreasonably withheld, interview the Retailer's employees with respect to
the matters described in this section.
6.6
Taxes and Duties.
The
price for Products excludes, and Retailer shall be liable for, all
applicable Federal, State, Provincial, and local sales or other taxes,
including without limitation, VAT, consumption and use taxes. Retailer
shall be liable for any import and/or excise taxes, customs and duties
incurred for licenses for clearance or otherwise required at point of
entry and destination in accordance with FOB, Montreal, Canada. Retailer
shall be responsible at its own expense to obtain any and all required
permits, approvals, licenses and quotas as applicable for the import of
any of the Products to its home country or any other country or
region.
7
SERVICE PROVISIONS
7.1
Service Personnel.
The
Retailer shall establish and maintain a complete service and parts
organization, including sufficient properly trained and competent service
and parts personnel to adequately fulfill the service obligations to be
performed by the Retailer under this
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Agreement.
7.2
Provisions of Service.
The Retailer shall provide
prompt, efficient and courteous service at reasonable cost, and warranty
service at no cost, to an owner or lessee of an Automobile,
regardless of origin of purchase or lease, in accordance with the provisions
of applicable Retailer Bulletins and shall perform such service in
such a manner as to secure and maintain the goodwill of the Retailer, ZMC
and the Products and to achieve the highest possible
level of customer satisfaction.
7.3
Warranty and Related Work.
The
Retailer shall install any replacement of parts, make certifications or
verifications and perform maintenance, service and other matters that may
be required under the terms of the ZMC Warranty or in order to effect
corrections or recalls. ZMC shall credit the Retailer's account for such
warranty service, corrections or recalls which the Retailer performs in
accordance with the Retailer Bulletins in effect at the time such service
is performed. The Retailer shall provide all warranty service consistent
with the ZMC Warranty applicable to each Product.
8
WARRANTY AND INDEMNIFICATION
8.1
Representations and Warranties.
ZMC
represents and warrants that the Products shall be free from defects in
materials or workmanship under normal use and service as defined in the
then-current ZENN Warranty document (refer to Schedule D). Third party
components used within the Products may be warranted by the third party as
specified in the documentation accompanying the third party
products.
8.2
ZMC Warranty.
The
Retailer shall deliver to each purchaser of a new Product the ZMC Warranty
therefore endorsed with the particulars of sale and shall notify ZMC of
the sale of each new Product, or used Product if still under warranty, in
such manner as prescribed by ZMC in accordance with policies and
procedures established in the Retailer Bulletins. If the Retailer installs
on a Product any equipment, accessory or part other than a new Part or
Accessory, or sells any Automobile which has been modified, or sells any
nonZMC service contract in conjunction with the sale of a Product,
the Retailer shall disclose this fact to the end user and shall advise the
end user that the modification, equipment, accessory or part is not
included in the ZMC Warranty or any other warranty furnished by ZMC or, in
the case of a service contract, the coverage is not provided by ZMC. The
Retailer shall include such disclosure on all copies of the purchase order
and on the end user's bill.
8.3
Disclaimer.
EXCEPT
AS EXPRESSLY STATED ABOVE IN SECTION 8.2, ALL WARRANTIES ARE DISCLAIMED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
ACCURACY, CONDITION, OWNERSHIP, FITNESS FOR A PARTICULAR PURPOSE, AND/OR
NON- INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS.
8.4
Damages Limitation.
INDEPENDENT
OF ANY OTHER LIMITATION CONTAINED HEREIN, IN NO EVENT SHALL ZMC BE LIABLE
FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND,
OR LOSS OF PROFIT OR REVENUE RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT, EVEN IF
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INFORMED
OF THE POSSIBILITY THEREOF IN ADVANCE. ZMC WILL ALSO NOT BE LIABLE FOR ANY
DAMAGES AS A RESULT OF PERSONAL INJURY OR PROPERTY DAMAGE EXCEPT AS MAY BE
PROVIDED FOR HEREIN. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN
THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, FRAUD, MISREPRESENTATION AND OTHER
TORTS. RETAILER WILL BE SOLELY RESPONSIBLE FOR ALL REPRESENTA-TIONS OR
OMISSIONS RETAILER MAKES TO ITS CUSTOMERS OR END USERS. IN NO EVENT WILL
ZMC'S OR ITS AFFILIATES' OR SUPPLIERS' AGGREGATE LIABILITY UNDER THIS
AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED A SUM EQUAL
TO THE AMOUNTS PAID BY RETAILER TO ZMC IN THE ONE (1) YEAR PERIOD
IMMEDIATELY PRECEDING THE DATE ON WHICH A WRITTEN DEMAND FOR DAMAGES IS
MADE.
8.5
Indemnity to ZMC.
Retailer
will indemnify, defend and hold ZMC, including ZMC's partners, officers,
directors, agents, employees, subsidiaries, affiliates, parents,
successors and assigns, harmless from any claim, demand, cause of action,
debt or liability (including reasonable attorneys fees, expenses and court
costs) arising from: (a) any third party claim related to or that arises
in connection with Retailer's use and/or sale of the Products, including
without limitation, any claims relating to the infringement of third party
intellectual property rights, except to the extent any such claim is based
solely upon the Products in their unmodified form as provided by ZMC; (b)
Retailer's modifications of and/or additions to any ZMC Products; (c)
Retailer's breach of this Agreement, (d) omissions, misrepresentations, or
negligence by Retailer or its representatives, and (e) sale of Products by
Retailer to a third party to the extent such claim is based on: (i)
Retailer's modifications of and/or additions to any Products, misuse or
abuse of the Products, negligence or breach of any provision in this
Agreement; (ii) Retailer's failure to abide by all applicable laws, rules,
regulations and orders that affect the Products; (iii) Retailer's
omission, misrepresentation, or negligence, or (iv) Retailer's or its
end-users' actions causing harm to any person or property.
9
TERM AND TERMINATION
9.1 Term.
The
initial term of this Agreement shall commence on the Effective Date and
shall continue for a period of three (3) years (the "Term").
Thereafter, unless otherwise terminated by either party by
providing at least one hundred and eighty (180) days prior written notice,
the Term shall automatically renew for additional one (1) year
periods.
9.2 Termination.
This
Agreement will terminate:
(a) On
the thirtieth (30) day after either party gives the other written notice
of a material breach by the other of any term or condition of this
Agreement, unless the breach is
cured before that day.
(b)
When
either party, in its discretion, gives the other written notice of
termination after the other has been the subject of any voluntary or
involuntary proceeding relating to bankruptcy, insolvency,
liquidation,
receivership,
composition
of or assignment for the benefit of creditors.
9.3
Effect
of Termination.
Upon termination of
this Agreement:
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(a)
All rights granted herein shall immediately terminate and no interest
whatsoever in any of such rights shall remain with Retailer except as may
be required to fulfill warranty or support obligations to Retailer's
customers;
(c)
All
Payment, delivery, and confidentiality obligations arising prior to
termination will remain in force. In the event of termination of this
Agreement is due to Retailer's material breach the due date for all
invoices for Products shall automatically be accelerated so that they
shall immediately become due and payable on the effective date of
termination, even if longer terms had been provided previously;
and
(d)
Neither
party will be liable for damages of any kind as a result of exercising its
right to terminate this Agreement.
9.4
Termination Other Than For Retailer's Material Breach.
Notwithstanding
anything to the contrary contained in Section 9.3, where termination of
this Agreement occurs other than as a result of Retailer's material
breach, Retailer shall be permitted, after termination of this Agreement
to continue distributing the Products from its inventory
only.
10
PROPRIETARY RIGHTS
10.1
Trademark License.
ZMC
hereby grants Retailer a non-exclusive, revocable (upon termination
hereof), non-transferable, non-assignable, limited license to use the
"ZMC" name and ZMC's product names solely for the purpose of accurately
identifying the ZMC-branded Products it markets and sells that are
purchased pursuant to the terms of this Agreement. All goodwill generated
as a result of Retailer's use of the ZMC name and ZMC product names is
solely for the benefit of ZMC. Retailer agrees to change or correct, at
its own expense, any material or activity that ZMC decides is inaccurate,
objectionable or misleading or a misuse of ZMC's name, trademarks, service
marks, or ZMC's logos or copyrighted works. Failure to forthwith correct
any changes required by ZMC may result in a termination of the license
contained in this section, in ZMC's sole discretion. All ZMC marks shall
be used in accordance 'with ZMC's communications guidelines in effect from
time to time. Retailer is prohibited from: (a) implying that Retailer and
ZMC are partners or creating the impression that ZMC is affiliated with
Retailer; (b) registering or using any domain name or business name
containing or confusingly similar to any name or mark of ZMC's; and (c)
not clearly and prominently identifying itself in all offers and
advertising, marketing and promotional materials relating to ZMC Products
sold under this Agreement.
10.2
ZMC Proprietary Rights.
Retailer
acknowledges and agrees that ZMC (and/or its licensors) will retain all
Proprietary Rights (as defined below) in the Products, Trademarks and any
documentation related to any of the foregoing (collectively the "ZMC
Property"). "Proprietary Rights" means all right, title and interest to
the intellectual property contained in the ZMC Property including but not
limited to any and all patent rights, patent applications, rights to apply
for patents, copyrights, copyright registrations, trade secrets,
trademarks, service marks, trademark and service mark registrations and
all related goodwill. Retailer acknowledges and agrees that the purchase
of any Products does not grant or convey Retailer any right or license in
any of the ZMC Property other than as expressly provided for in this
Agreement.
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10.3
Proprietary Rights Notices.
Retailer
shall not remove, alter, modify or obscure any ZMC trademark, logo or
similar mark or any ZMC Proprietary Rights notices (including, without
limitation, patent registration numbers and trademark notices) on or in
the ZMC Property.
10.4
No Challenge to ZMC Proprietary Rights.
During
the term of this Agreement and after its expiration or termination,
Retailer shall not, directly or indirectly: (i) dispute or contest, for
any reason whatsoever, ZMC's ownership of any Proprietary Rights embodied
in, related to or derivable from the ZMC Property, or the validity or
enforceability of any such Proprietary Rights; (ii) oppose or interfere
with any application for registration of any Proprietary Rights embodied
in, related to or derivable from the ZMC Property; (iii) interfere with
the manufacture, use or sale of the Products or any future version
thereof, by ZMC or any of its licensees, successors or assigns; or (iv)
counsel, procure or assist anyone else to do any of the
foregoing.
11
MISCELLANEOUS
11.1
Relationship of Parties.
Other
than as provided herein, this Agreement does not create any exclusive
arrangement between the parties, and either party hereto may meet,
exchange information, enter into agreements and conduct business
relationships of any kind with third parties, to the exclusion of the
other party. Subject to the terms and conditions of this Agreement
(including without limitation, the confidentiality obligations described
in Section 4.1) and except as otherwise agreed to in writing by the
parties, discussion and/or communications between the parties will not
serve to impair the right of either party to develop, make, use, procure,
and/or market products or services now or in the future that may be
competitive with those offered by the other, nor to develop and provide
products to competitors of the other party.
11.2 Force
Majeure.
If
the performance of this Agreement or any obligation under it (except
payment of monies due) is prevented, restricted or interfered with by
reason of acts of God, acts of government, or any other cause not within
the control of either party, the party so affected shall be excused from
such performance, but only for so long as and to the extent that such a
force prevents, restricts or interferes with that party's performance. The
party affected by the other party's delay or inability to perform may
elect to suspend this Agreement for the duration of the force majeure
condition and (i) at its option buy, sell, obtain or furnish elsewhere
material to be bought, sold, obtained or furnished under this Agreement
and (ii) once the force majeure condition ceases, resume performance under
this Agreement. When the delay or nonperformance continues for a period of
a least thirty (30) days, either party may terminate this Agreement or any
part of it relating to Products not already shipped.
11.3
Assignment.
Retailer
may not assign its rights or obligations under this Agreement, without the
prior written consent of ZMC, which consent shall not be unreasonably
withheld.
11.4
Notices.
All
notices required to be given under this Agreement and any communication
sent with respect to this Agreement shall be given in
writing and shall be deemed received by the party to whom
the
|
notice
or correspondence is sent:
(a)
one
Business day after the notice or communication is sent via reliable
overnight commercial courier (charges prepaid), or
(b) on
the date the notice or communication is personally delivered to the other
party, at the addresses first written above.
11.5
Press Release.
Retailer
shall not issue a press release relating to this Agreement or to the
subsequent addition of any Products hereto without ZMC's written
consent.
11.6
Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by or invalid under
applicable law, the parties will negotiate in good faith to restate such
provision to reflect the original intentions of the parties as nearly as
possible in accordance with applicable law and the remaining provisions of
this Agreement shall be enforced as if this Agreement was entered into
with the restated provision.
11.7 Applicable
Law.
This
Agreement shall be governed by and enforced in accordance with the laws of
the Canadian Province of Ontario without reference to its conflict of laws
principles. The parties waive all rights they may have to a trial by jury.
The rights and obligations under this Agreement shall not be governed by
the United Nations Convention on Contracts for the International Sale of
Goods, the application of which is expressly excluded.
11.8
Dispute Resolution.
All
disputes arising out of or in connection with this Agreement or the breach
thereof, including any questions regarding its existence, validity or
termination shall be resolved by arbitration before a single arbitrator
with knowledge and experience in the field of electric and low speed
vehicle technology pursuant to the International Arbitration Rules of the
American Arbitration Association and shall be held in Toronto, Canada.
Notwithstanding the foregoing, each party shall be entitled to seek
injunctive relief from any court of competent jurisdiction with respect to
protection of its intellectual property rights. The governing law shall be
the law of Ontario, Canada.
11.9 Entire
Agreement.
This
Agreement and all Attachments hereto constitute the final written
expression of all terms of the Agreement relating to the transactions
described herein. This Agreement supersedes all previous communications,
representations, agreements, promises or statements, either oral or
written, with respect to such transactions. No addition to or modification
of any provision of this Agreement will be binding unless made in writing
and signed by the parties hereto.
11.10
Survival.
Any
provision of this Agreement which by its use or context is intended to
survive the termination of this Agreement shall so survive, including,
without limitation, Sections 4, 0, 9.3, and 11 shall bind the parties and
their legal representatives, successors, heirs and
assigns.
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11.11
Export Restrictions and Statement of Assurance.
Products
obtained under this Agreement are subject to Canadian, U.S. or other
export control laws, including the U.S. Export Administration Regulations,
as well as end-user, end-use and destination restrictions issued by the
U.S. and other governments. Retailer assures that it will comply with all
applicable export control laws at all times, including, when it exports or
re-exports controlled products or technical data obtained from ZMC or any
products produced directly from the controlled products or technical
data.
11.12 Language.
The
original of this Agreement has been written in English and Retailer waives
any right it may have under the laws of its territory to have this
Agreement written in any other language.
|
ZENN
MOTOR COMPANY
| By: |
/s/
Xxxxxx Xxxxxxx
|
|
||
|
(I
have authority to bind the corporation)
|
||||
|
|
||||
| Name: |
Xxxxxx
Xxxxxxx
|
|||
|
(Print
or Type)
|
||||
| Title: |
Vice
President, Sales & Marketing
|
|||
|
(Print
or Type)
|
||||
| Date: |
September
10th, 2008
|
|||
|
(Print
or Type)
|
| By: |
/s/
Xxxx Xxxx
|
|
||
|
(I
have authority to bind the corporation)
|
||||
|
|
||||
| Name: |
Xxxx
Xxxx
|
|||
|
(Print
or Type)
|
||||
| Title: |
CEO/PRES
|
|||
|
(Print
or Type)
|
||||
| Date: |
9/10/08
|
|||
|
(Print
or Type)
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7
