This Agreement is by and between Universal Tracking Solutions Located at 3317 S Higley Rd. Suite 114-475 Gilbert, AZ 85297 AND [Distributor]
Exhibit
10.4
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Effective
Date of this Agreement:
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[Date]
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This
Agreement is by and between
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Universal
Tracking Solutions
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Located
at
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0000
X Xxxxxx Xx. Xxxxx 000-000
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Xxxxxxx,
XX 00000
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AND
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[Distributor]
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Purpose
of this
Agreement
[Universal
Tracking Solutions]
and [Distributor] agree
that [Distributor] will
act as an authorized reseller for [Universal Tracking Solutions]
developed Products according to the following terms and conditions:
1.
Appointment &
Territory
[Universal
Tracking Solutions]
appoints [Distributor]
as an authorized,
reseller in the U.S. for [Universal Tracking Solutions]
Products listed in Exhibit A during the term of this Agreement.
2.
Price &
Terms
2.1
[Distributor] will
purchase [Universal Tracking
Solutions] Products at the prices, terms and conditions defined in
Exhibit B, which prices [Universal Tracking Solutions]
may change at any time upon written notice to [Distributor] . In
the event of a price
increase, may
cancel any unshipped or shipped orders by notice of [Universal Tracking Solutions]
within ten (10) Days) of receipt of notice of the price increase.
2.2
In the event of a price decrease, [Universal Tracking Solutions]
will credit [Distributor] for all unsold Products shipped to [Distributor] within thirty
(30) Days prior to such price decrease, by crediting [Distributor] with the amount
equal to the difference between the price at which such Products were sold
to
[Distributor] . [Distributor]
will
supply
[Universal Tracking
Solutions] with documentation confirming the quantity of unsold Products
and the prices paid for the same and provided that [Universal Tracking Solutions]
will have the right to audit during normal business hours the accuracy of such
documentation. Orders received by [Universal Tracking Solutions]
after the effective date of a price change will be billed at the new
price.
-1-
2.3
All [Distributor] orders
will require payment of COD by check, money order, or credit card unless special
credit arrangements have been agreed and approved by [Universal Tracking
Solutions]. Invoices not paid within this period will incur a
service charge equal to the highest rate permitted by law per month on any
outstanding overdue balance.
2.4
Notwithstanding any other terms or provisions of this Agreement, should [Distributor] default in
payment of the purchase price when due, or fail to comply with any provisions
of
this Agreement, [Universal
Tracking Solutions] may cancel the sale of such Products or enforce the
terms of such sale, and may remove or repossess such inventory on ten (10)
Days
prior written notice and take such other action as it may deem necessary to
protect its interest, it being understood that the remedies contained in this
section are cumulative and in addition to all other rights and remedies of
[Universal Tracking
Solutions].
3.
Shipments, Cancellations &
Changes
3.1
[Distributor] may
request shipment up to Ten (10) Days after order date. The Shipments
are subject to availability. [Universal Tracking Solutions]
reserves the right to schedule and reschedule any order, in [Universal Tracking
Solutions]'s discretion, and to decline any order for credit reasons or
because the order specifies an unreasonably large quantity or makes an
unreasonable shipment request.
3.2
[Distributor] may cancel
a shipment or request changes in a scheduled shipment date at no charge up
to 5
(five) working days before scheduled shipment. Cancellation or
changes prior to shipment will be subject to a charge of 5% (five percent)
of
the shipment price. No cancellation or change may be made after
shipment. [Universal
Tracking Solutions] will use reasonable efforts to meet any scheduled
shipment date. However, [Universal Tracking Solutions]
will not be liable for delay in meeting a scheduled shipment date for any
reason. If [Universal Tracking Solutions]
Products are in short supply, [Universal Tracking Solutions]
will allocate them equitably, in [Universal Tracking
Solutions]'s discretion, among [Distributor] and
all other resale channels. [Universal Tracking Solutions]
is prepared to drop-ship [Universal Tracking Solutions]
Products ([Distributor]
initiated orders)
to customers directly upon receipt of a properly
executed Customer Purchase Order, or upon receipt of a written [Distributor] Order
(identifying the customer details).
All
other
[Distributor] approved
orders will be shipped directly to [Distributor] distribution
facilities listed on Exhibit C and only after receipt of a written order from
[Distributor]
.
* Title
to [Universal Tracking
Solutions] Products and risk of loss and damage will pass to [Distributor] F.O.B. shipping
point upon delivery to a common carrier.
* [Universal
Tracking Solutions]
retains the right to fulfill orders received from customers
directly.
* [Distributor]
prices
do not
include transportation cost.
* [Distributor]
prices
do not
include State and Local taxes. [Distributor] will
pay these taxes unless [Distributor] has given [Universal
Tracking Solutions]
the appropriate resale exemption certificates.
4.
Warranty & Limitations of
Remedies
4.1
[Distributor] and [Universal
Tracking Solutions]
agree that the procedure provided below for return and repair or replacement
of
defective Products will be [Distributor] exclusive remedy
for any claim relating to any alleged defect or nonconformity in [Universal TrackingSolutions]
Products. If [Distributor] finds that any
Universal
Tracking
Solutions Product sold to [Distributor] by [Universal
Tracking Solutions]
is defective within ninety (90) days after its shipment to [Distributor] and
prior to its sale by [Distributor] , [Distributor]
will
contact
[Universal Tracking
Solutions] regarding its repair or replacement. [Distributor] will not ship
(return) any Product to [Universal Tracking Solutions]
without a "Return Authorization Number" that can be obtained by calling the
[Universal Tracking
Solutions] Customer Service department. Approval for return or
replacement will be based solely on whether the Product is in fact defective
and
will not be unreasonably withheld. [Universal Tracking Solutions]
will be entitled to determine its discretion whether to replace rather than
repair the Product. [Universal Tracking Solutions]
does not warrant the performance of the Product, as more fully defined in a
written limited warranty included with each Product, the terms of which [Universal Tracking Solutions]
may change from time to time. This warranty is the only warranty
covering any [Universal
Tracking Solutions] Product sold under this Agreement.
-2-
4.2
No Other Warranty is Expressed or Implied
[Universal
Tracking Solutions]
specifically disclaims the implied warranties of merchantability and fitness
for
a particular purpose. The remedies provided in this Agreement,
including the procedure for return of defective goods, are [Distributor] sole and
exclusive remedies. [Universal Tracking Solutions]
will not be liable for any direct, indirect, special, incidental or
consequential damages whether based on contract, tort or any other legal
theory.
5.
Relationship
[Distributor]
relationship
to
[Universal Tracking
Solutions] will be that of an independent contractor engaged in
purchasing [Universal Tracking
Solutions] Products for resale to [Distributor]
customers. [Distributor] and
its employees are not agents or legal representatives of [Universal Tracking Solutions]
for any purpose and have no authority to act for, bind or commit [Universal Tracking Solutions].
[Distributor]
and
[Universal Tracking Solutions]
agree that this Agreement does not establish a franchise, joint venture or
partnership. Any commitment made by [Distributor] to its customers
with respect to quantities, delivery, modifications, interfacing capability,
suitability of Product, or suitability in specific applications will be [Distributor] ’s sole
responsibility unless prior written approval is obtained from [Universal Tracking
Solutions].
[Distributor]
has
no authority
to modify the warranty contained in Section 5 of this Agreement or to make
any
other commitment on behalf of [Universal Tracking Solutions],
and [Distributor] will
indemnify [Universal Tracking
Solutions] from liability for any such modified warranty or other
commitment by [Distributor]
. [Distributor]
has
the right to
determine its own resale prices, and no [Universal Tracking Solutions]
representative will require that any particular price be charged by [Distributor] or grant or
withhold any treatment to [Distributor] based on [Distributor]
pricing
policies. [Distributor] agrees
that it will promptly report directly to a Universal Tracking Solutions
officer any effort by [Universal Tracking Solutions]
personnel to interfere with its pricing policies.
This
Agreement applies only to [Universal Tracking Solutions]
Products listed on Exhibit A. [Distributor] acknowledges
that [Universal Tracking
Solutions] may market other Products, including Products in competition
with those listed on said Exhibit A, without making them available to [Distributor] . [Universal
Tracking Solutions]
reserves the right to advertise, promote and sell any Product in competition
with [Distributor] as
[Universal Tracking
Solutions] deems appropriate.
-3-
6.
Sales Promotion &
Support
6.1
[Distributor] will use
its best efforts in good faith to promote, demonstrate and sell [Universal Tracking Solutions]
Products on a face-to-face basis in an end-user environment so as to create
the
largest volume of profitable business for [Universal Tracking Solutions],
to ensure the highest quality of pre-sale and post-sale support to end-users
and
to promote the goodwill, name and interest of [Universal Tracking Solutions]
and [Universal Tracking
Solutions] Products. [Distributor] will train
and
maintain an adequate number of employees to properly promote, demonstrate,
sell
and provide post-sale support of [Universal Tracking Solutions]
Products, and to otherwise carry out its obligations under this
Agreement. [Distributor] will sell only
to end-user customers (including government and corporate users as well as
individual users).
Only
with prior written
and express approval of [Universal Tracking Solutions],
[Distributor]
may
sell
[Universal Tracking
Solutions] Products purchased during the term of this Agreement to other
resellers that are currently authorized to carry those Universal Tracking Solutions
Products, as necessary for stock balancing or other purposes. [Distributor] may not sell
Products to unauthorized resale outlets. [Distributor] will provide
[Universal Tracking
Solutions] with monthly sales reports that will include the number of
Products sold to end-users for each month, the end-users zip code, date of
purchase and Product configuration. [Distributor] will permit
[Universal Tracking
Solutions], during normal business hours, to inspect the sales and
support facilities of [Distributor] and all customer
records and correspondence relating to the sale and support of [Universal Tracking Solutions]
Products.]
6.2
[Distributor] will
ensure that a customer is provided with a knowledge of all facilities provided
by [Universal Tracking
Solutions] and [Distributor] , including
but
not limited to: [Universal Tracking Solutions]
Products, HOT LINE telephone numbers, [Universal Tracking Solutions]
Product Registration Cards, [Universal Tracking Solutions]
and Approved [Distributor]
training courses,
[Universal Tracking Solutions]
Product Warranty information.]
7.
Trademark Usage &
Licensing
7.1
From time to time, [Universal
Tracking Solutions] may designate one or more Universal Tracking
Solutions
trademarks as available for [Distributor] ’s use, and will
provide standards for that use, in [Universal Tracking Solutions]
materials. [Universal Tracking
Solutions] authorizes [Distributor] to use these
designated marks.
7.1.1 [Distributor]
will
use the
designated marks according with these standards solely in advertising and
promoting [Universal Tracking
Solutions] Products, in good taste and in a manner that preserves their
value and [Universal Tracking
Solutions]'s rights to them.
7.1.2
[Distributor] may not
use any Universal Tracking
Solutions trademark or trade name in any way that will imply [Distributor] is an agency
or
branch of [Universal Tracking
Solutions]. [Distributor] will immediately
change or discontinue any use as requested by [Universal Tracking
Solutions].
7.2
Unless prior written consent is granted by [Universal Tracking Solutions],
[Distributor]
will
not
copy or modify any materials supplied under this Agreement, except as noted
in
Exhibit B. [Distributor] will not remove
or omit any copyright notice contained in these materials.
-4-
7.3
[Distributor] is granted
the right to distribute materials supplied by [Universal Tracking Solutions]
according to the license terms supplied with these materials. [Distributor] may also use the
materials for demonstration purposes also according to those license
terms.
7.3.1 Where
an end-user Agreement is supplied with the Product, the user must sign the
Agreement or indicate acceptance by opening the media package in order to obtain
a license to use it. Use of the Product will be subject to the terms of the
Agreement.
7.3.2 Where
the Product is designated as confidential or a trade secret in its license
terms, [Distributor]
will safeguard the
Product according to industry standards and applicable
law, using the same degree of care to prevent unauthorized disclosure as [Distributor] uses
with its own trade secrets and those of other suppliers.
8.
Amendment and / or
Termination
[Universal
Tracking Solutions]
may, from time to time, give [Distributor] written notice
of amendments to this Agreement. Any such amendment will
automatically become a part of this Agreement on the effective date specified
in
the notice unless [Distributor]
objects in writing
within [ten) working days of the notice
date. Each party acknowledges that the other has made no commitments
regarding duration or renewal of this Agreement beyond those expressly stated
in
this Agreement. Either party may terminate this Agreement with or
without cause, at any time upon [ninety) days written notice. If
[Universal Tracking
Solutions] determines that [Distributor] is deficient
in
meeting responsibilities under this Agreement, [Universal Tracking Solutions]
may provide written notice of such deficiencies and establish a reasonable
period of time, not to exceed [sixty) days, in which [Distributor] may remedy such
deficiencies. If [Distributor] does not remedy
the deficiencies, [Universal
Tracking Solutions] may terminate this Agreement at its
discretion.
No
waiver by [Universal Tracking Solutions]
of any deficiency will constitute a waiver of [Universal Tracking
Solutions]'s rights to terminate this Agreement for a subsequent
deficiency. Upon termination or expiration of this Agreement, [Distributor] will immediately
cease to be an authorized [Universal Tracking Solutions]
dealer and will refrain from representing itself as our Dealer and from using
any [Universal Tracking
Solutions] trademarks or trade names. Upon any such
termination or expiration, at the option of either party, [Universal Tracking Solutions]
will repurchase any of [Universal Tracking Solutions]
Products sold to [Distributor]
by [Universal
Tracking
Solutions] under this Agreement in their unopened, original packaging and
marketable as new merchandise. [Universal Tracking Solutions]
will pay [Distributor]
[Universal
Tracking
Solutions]'s then current [Distributor] price or [Distributor]
original
purchase price for such Products, whichever is lower. The indemnities
provided in this Agreement will survive termination or expiration of this
Agreement.
9.
Confidentiality
[Distributor]
agrees
to
maintain confidential and protect in the same manner that [Distributor] protects
valuable confidential information belonging to [Distributor] any information
furnished by [Universal
Tracking Solutions] that is labeled confidential.
10.
General
Considerations
Neither
party may assign or transfer this Agreement. Any attempted assignment
or transfer will be void. [Distributor] will advise
[Universal Tracking
Solutions] of any change in itsownership, control or
operating arrangements. Either party's failure to enforce any
provisions of this Agreement will not be deemed a waiver of that provision
or of
the right to enforce it in the future. [Universal Tracking Solutions]
standard Terms and Conditions of Sale, may be stated on the reverse of [Universal Tracking Solutions]
invoice form, and are incorporated in this Agreement. In the event of
any inconsistency, the terms of this Agreement will prevail. This
Agreement contains the entire and only understanding regarding the Dealer Resale
relationship between [Universal
Tracking Solutions] and [Distributor]
. [Universal
Tracking Solutions] gives notice of objection to any additional or
inconsistent terms defined in any purchase order or other document issued by
[Distributor]
.
-5-
No
United States Government procurement
regulations will be deemed included under this Agreement or binding on either
party unless specifically accepted in writing and signed by both
parties.
Neither
[Universal Tracking Solutions]
or [Distributor] will be
liable for its failure to perform under this Agreement due to contingencies
beyond its reasonable control including, but not limited to, strikes, riots,
wars, fire, acts of God, or acts in compliance with any law of the United States
of America or any other government body or agency of it.
11.
Legal Fees & Binding
Arbitration
In
the
event of any litigation or other legal proceeding including but not limited
to
arbitration or mediation between [Universal Tracking Solutions]
and [Distributor]
arising from this
Agreement, the prevailing party will be entitled to
recover, in addition to any other relief awarded or granted, its reasonable
costs and expenses (including attorney fees) incurred in the
proceeding.
11.1
Any dispute relating to the interpretation or performance of this Agreement
will
be resolved at the request of either party through binding arbitration.
Arbitration will be conducted in the county of Maricopa in the state of Arizona
according to the then-existing rules of the American Arbitration Association.
Judgment upon any award by the arbitrators may be entered by any State or
Federal Court having jurisdiction. [Universal Tracking Solutions]
and [Distributor] intend
that this Agreement to arbitrate be irrevocable.
12.
General
12.1
All notices, demands or consents required or permitted under this Agreement
will
be in writing and will be delivered personally or sent by certified or
registered mail to the respective parties at the addresses defined on the first
page of this Agreement, or at such other address as will be given by either
party to the other in writing.
12.2
No waiver, amendment or modification of any provisions of this Agreement will
be
effective unless in writing and signed by the party against whom such waiver,
amendment or modification is sought to be enforced. No failure or delay by
either party in exercising any right, power or remedy under this Agreement,
except as specifically provided in this Agreement, will operate as a waiver
of
any such right, power or remedy. However, any legal action alleging breach
of
this Agreement may not be commenced more than [one] year after the breach
complained of.
12.3
This Agreement will be binding upon and defer to the benefit of the successors
and permitted assigns of [Universal Tracking Solutions]
and [Distributor]
. Except as described
below, [Universal Tracking Solutions]
or [Distributor] may not
assign any of its rights ordelegate any of its obligations
under this Agreement to any third party without the express written permission
of the other. However, [Distributor] understands that
[Universal Tracking
Solutions] may assign this Agreement to a partnership or successor
corporation and approves such transfer in advance.
-6-
12.4
The validity, construction and performance of this Agreement will be governed
by
the internal laws of the State of Arizona, without regard to provisions
regarding conflicts of law.
12.5
[Universal Tracking
Solutions] and [Distributor] understand
and
acknowledge that violation of their respective covenants and Agreements may
cause the other irreparable harm and damage, that may not be recovered at law,
and each agrees that the others remedies for breach may be in equity by way
of
injunctive relief, as well as for damages and any other relief available to
the
non-breaching party, whether in law or in equity.
12.6
The Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing
it.
12.7
If any provisions of this Agreement are held by a court of competent
jurisdiction to be invalid under any applicable statute or rule of law, they
are
to that extent to be deemed omitted and the remaining provisions of this
Agreement will remain in full force and effect.
12.8
This Agreement, including the attached Exhibits, constitutes the entire
Agreement between [Universal
Tracking Solutions] and [Distributor] concerning
this
transaction, and replaces all previous communications, representations,
understandings, and Agreements, whether verbal or written between [Universal Tracking Solutions]
and [Distributor] or any
official or representative of either of them.
Understood,
Agreed & Approved
We
have
carefully reviewed this contract and agree to and accept all of its terms and
conditions. We are executing this Agreement as of the Effective Date
above.
Universal
Tracking Solutions,
_____________ _____________
___________________________
ByBy
_____________ _________
Name Name
_______________________________________________
TitleTitle
-7-
Exhibit
A
Universal
Tracking Solutions Products
All
Universal Tracking Solutions GPS products are covered by this agreement between
Universal Tracking Solutions.
-8-
Exhibit
B
Prices,
Terms and Conditions
[Redacted]
-9-
Exhibit
C
Reselling
Distribution Facilities
Units
will be shipped to the following reseller’s address via FedEx Ground unless
otherwise specified by [Distributor].
[Distributor]
___________________
-10-
