DISTRIBUTOR AGREEMENT
THIS AGREEMENT, made this twentieth day of August, 1998 by and between
ACCIDENT PREVENTION PLUS, LLC whose primary address is 000 Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxx Xxxx, 00000, Xxxxxx Xxxxxx of America, (hereinafter referred
to as "Supplier") and American Overseas Corporation, whose primary address is
Xxxxxxxxxxxxxxxxx 0X, Xxxxxxxxx/Xxxxxx, Xxxxxxx, X-00000, (hereinafter referred
to as `Distributor").
THE DISTRIBUTOR, upon the signing of this contract, agrees to pay US$5
million to Supplier for the consideration of "non-exclusive" world wide
Distribution rights. This payment will commence as of the above Agreement date
and will be completed within thirty six months. A minimum of US$2 million must
be paid within the first year.
WITNESSETH: That in consideration of mutual covenants and agreements to
be kept and performed on the part of said parties hereto, respectively as herein
stated, the said parties mutually agree as follows:
1. Products and Territory
a) Supplier hereby appoints Distributor on a non-exclusive basis as its
authorized distributor for the sale of on board recording devices defined
specifically in Appendix A, (the "Products") and the Distributor accepts that
appointment during the term of this Agreement.
b) Supplier reserves the right, in its sole and absolute discretion, at any time
upon thirty (30) days prior written notice to Distributor, to expand or reduce
in any manner the products and Territory which are covered by this Agreement.
2. Partial Obligations of the Distributor
a) Distributor agrees to use its best efforts and devote such time and expend
such funds as may be reasonably be necessary lawfully sell, promote and expand
the Products throughout the Territory.
b) All quotations made by the Distributor shall be made within parameters of the
Supplier's suggested retail price guidelines.
c) Distributor will provide copies of correspondence to customers or potential
customers if and when requested.
3. Prices Purchases Delivery and Payment
a) Supplier will sell its products to Distributor at its then current cost plus
5% with an F.O.B. delivery point. The prices for Products are set forth in
Appendix A (the "Products"). Supplier reserves the right, in its sole
discretion, to change prices applicable to the Products. Supplier shall give
written notice to Distributor of any price change at least thirty (30) days
prior to the effective date thereof The price in effect as of the date of
Distributor's receipt of notice of such price change shall remain applicable to
all orders received by Supplier prior to the effective date.
b) Supplier shall supply to Distributor sufficient Products to enable
Distributor to meet the full demand for Products in the Territory. All orders
for Products transmitted by Distributor to Supplier shall be deemed to be
accepted by Supplier at the time such orders are received by Supplier to the
extent that they are in compliance with the terms of this Agreement. Supplier
shall perform in accordance will all orders accepted.
c) All Products purchased by Distributor shall be purchased solely for
commercial resale or lease, excepting those Products reasonably required by
Distributor for advertising and demonstration purposes.
d) Each order for Products issued by Distributor to Supplier under this
Agreement shall identity that it is an order and shall further set forth the
delivery date or dates and the description and quantity of Product 5 which are
to be delivered on each of such dates. An order for Products shall not provide a
delivery date less than thirty (30) days after the date the order is delivered
to Supplier.
e) All requests for cancellation of orders by Distributor shall be in writing.
Cancellation is subject to supplier review and acceptance.
f) Supplier shall, at its expense, pack all Products in accordance with
Supplier's standard packing procedure, which shall be suitable to permit
shipment of the Products to the Territory. However, if the Distributor requests
a modification of those procedures, Supplier shall make the requested
modification. Distributor shall then bear any reasonable expenses incurred by
Supplier in complying with such modified procedures which are in excess of the
expenses which Supplier would have incurred in following its standard
procedures.
g) All deliveries of Products sold by Supplier to Distributor pursuant to this
Agreement shall be made F.O.B. the Shipping Point, and title to and risk of loss
of Products shall pass from Supplier to Distributor at the Shipping Point.
Distributor shall be responsible for arranging all transportation of Products,
but if requested by Distributor, Supplier shall assist in making such
arrangements. Distributor shall also procure insurance for the transportation of
the Products, and such insurance shall be of a kind and on terms current at the
port of shipment. Distributor shall pay all charges, including customs duty and
sales tax, incurred with respect to the Products following their delivery to the
carrier or forwarder.
h) Promptly upon the receipt of a shipment of Products, Distributor shall
examine the shipment to determine whether any item or items included in the
shipment are in short supply, defective, or damaged. Within seven (7) days of
receipt of the shipment, Distributor shall notify Supplier in writing of any
shortages, defects, or damage which Distributor claims existed at the time of
delivery. With fourteen (14) days after the receipt of such notice, Supplier
will investigate the claim of shortages, defects or damage, inform Distributor
of its findings, and deliver to Distributor Products to replace any which
Supplier determines, in its sole discretion, were in short supply, defective or
damaged at the time of delivery. Unless notice is given as provided in this
section, Distributor shall be deemed to have accepted such products and to have
waived all claims for shortages, defects or damages.
i) Upon shipment and acceptance of Products, Supplier will submit to Distributor
Supplier's invoice for those Products. Distributor shall pay each such proper
invoice within thirty (30) days of invoice date. Unless otherwise specifically
provided herein, all such payments from all International Distributors will be
made in United States Dollars via wire transfer to a bank account specified in
writing by Supplier to Distributor.
j) Distributor shall be responsible for any extension of credit to its customers
and collections of such accounts shall be the sole responsibility of the
Distributor. All shipping costs, duties and other charges relating to the
transport or transfer of the Products to the Distributor or to its customer
shall be the responsibility of the Distributor.
k) Supplier shall not be liable for any delay or failure to perform hereunder
due to floods, riots, strikes, freight embargoes, acts of God, acts of war or
hostilities of any nature, laws or regulations of any government (whether
foreign or domestic, federal, state, county or municipal) or any other similar
cause beyond reasonable control.
4. Export Controls Requirements
a) Supplier's obligations to sell and deliver Products shall be subject to such
United States laws and regulations as shall, from time to time, govern the sale
and delivery of goods for export from the United States.
5. Warranties
a) Supplier warrants that all new Products sold or furnished pursuant to this
Agreement by Supplier to Distributor will be free under normal use and service
from any defects in workmanship or materials, provided that any allegedly
defective Product has not been altered, misused, neglected or damaged through
causes unconnected with its manufacture. Supplier further warrants that each
Product sold to Distributor shall conform to all of the Specifications and shall
perform in the manner for which it was designed. The warranty described shall
terminate as to each Product upon the expiration of twelve (12) months from the
date of receipt of product by the Distributor.
b) The Products shall be warranted by Supplier as set forth above and the
Distributor shall pass this warranty through to its customers. Supplier makes no
other warranty of any kind and any warranty of suitability for any particular
purpose is specifically disclaimed. Under no circumstances shall Supplier be
responsible for consequential damages. Distributor shall be responsible for
informing the customer of all disclaimers and limitations of liability by
Supplier.
6. Relationship of the Parties
a) Distributor shall be considered as an independent contractor. The
relationship shall not be construed to be that of employer and employee, nor to
constitute a partnership, joint venture or agency of any kind.
b) Distributor represents that it has the personnel, facilities and skill
required to act as Distributor for the Products and agrees to maintain the
appropriate sales offices.
c) Distributor agrees to pay all of its incurred expenses including but without
limitation all travel, lodging and entertainment. Supplier shall not reimburse
Distributor for any of those expenses.
d) Distributor shall have no right to enter into any contracts or commitments in
the name of; or on behalf of; Supplier, or to bind Supplier in any respect
whatsoever.
e) Distributor will conduct all of its business under its own name, except as
otherwise provided herein or authorized in writing by Supplier, in such manner
as it sees fit.
f) In addition, Distributor shall not obligate or purport to obligate Supplier
by issuing or making any warranties or guarantees with respect to the Products
to any third party, other than the warranty described above in Section 4
("Warranties").
g) Supplier shall be solely responsible for the design, development, supply,
production and performance capabilities of the Products. The Distributor shall
assist Supplier in the promotion and preservation of its trademarks and shall
not remove or alter any trademark in literature or on the supplied Products.
h) Distributor shall have the right to appoint or otherwise designate suitable
and desirable salespeople, employees, agents, and representatives (herein
collectively referred to as `Distributor's Representatives"). Distributor shall
be solely responsible for Distributor's Representatives and their acts.
7. Reporting
a) Distributor shall provide Supplier with territorial written semi-annual
reports that shall include business trends, market forecasts and other reports
that might be requested by the Supplier from time to time free of charge.
b) Distributor agrees to furnish Supplier by the 1st of every other month
reports of calls on or to customers and to prospective customers on behalf of
Supplier together with its best forecast of expected orders and inventory levels
by Product including the names of the associated customers for the period.
8. Distributor Sales
a) Distributor shall, at its expense, engage and maintain a sales organization
in the Territory, staffed with such experienced personnel as are necessary to
enable distributor to perform its obligations under this Agreement.
b) As promptly as practicable after execution of this Agreement, Supplier shall
submit to Distributor information, materials, and other technical documents
necessary to enable Distributor to perform its obligations under this Agreement.
c) Prior to making any returns, the Distributor must request a Return
Authorization (RA) number from Supplier.
9 Sales Promotion and Field Assistance
a) Distributor shall be entitled, during the term of this distributorship
created by this Agreement and any extension thereof; to advertise as an
authorized Distributor of the Products.
b) Distributor shall use the Trademarks in all advertisements and other
activities conducted by Distributor to promote the sale of the Products.
c) Distributor shall not use any such advertisements or promotional materials,
which shall include any price lists, without having received prior written
consent of Supplier to do so.
d) Supplier agrees to make available to Distributor any specifications, test
results, graphics or existing mechanical free of charge to be used in
Distributor's development of sales presentations.
e) Design and production costs of all customized sales promotion materials will
be paid for by the Distributor.
f) Supplier, if necessary, will act as a consultant in sourcing of these
materials free of charge.
g) Supplier will offer all existing promotional materials to Distributor at 5%
above cost.
h) Supplier will be available to provide any on site assistance as Distributor
deems necessary. Terms and conditions are to be mutually agreed upon.
10. New Products
a) Distributor may request from Supplier distribution rights for a new product
to be marketed in the Territory. Supplier shall grant such distribution rights
to the Distributor provided that the Distributor is not already supplying a
competitive product. If this should be the case, Distributor has the right to
decide to terminate relationship with competitor. Should Distributor fail to
accept such Product, Supplier may then offer the product to another party for
distribution in the Territory.
11. Confidential Information
a) Written Technical data, drawings, plans and engineering in technical
instructions pertaining to the Products are recognized by Distributor to be
secret and confidential and to be the property of Supplier. Those items shall at
all times and for all purposes be held by Distributor in a confidential capacity
and shall not, without the prior written consent of Supplier be disclosed by
Distributor to any person, firm or corporation, excepting those salaried
employees of Distributor who are required to utilize such items in connection
with the sale of Products during the term of the distributorship created by this
Agreement. Those items shall also not be disclosed to any person, firm or
corporation, or copied or used by Distributor, its employees or agents at any
time following the expiration or termination of the distributorship created by
this Agreement.
b) Supplier may require as a condition to any disclosure by Distributor pursuant
to this confidentiality that any salaried employee to whom disclosure is to be
made sign a proprietary information agreement form, enforceable by Supplier,
containing terms satisfactory to Supplier.
12. Supplier's Marketing Office in Territory
a) Supplier may from time to time maintain a marketing or sales office at one or
more locations in the Territory.
b) Personnel associated with such office or offices shall be authorized to and
be entitled to exercise all rights of Supplier under this Agreement. Such
personnel shall be entitled to all information with respect to all matters
relevant to Distributor's performance under the Agreement, and Distributor shall
at all times cooperate with such personnel with respect to all such matters.
13. Indemnification
a) Distributor shall indemnity, protect and save Supplier, affiliates and all
officers, directors, employees and agents thereof (hereinafter referred to as
"Indemnities") harmless from all claims, demands, suits or actions (including
attorneys' fees incurred in connection therewith) which may be asserted against
Distributor for any kind of damages, including but without limitation, damage or
injury to property or persons, and incidental, special and consequential
damages, which may be sustained by any third party or any Indemnities occurring
out of; or incident to, the conduct of Distributor's operations under this
Agreement, including but without limitation any independent representations of
Distributor,
14. Term and Termination
a) The term of this Agreement shall commence on August 20th, 1998 and shall
continue in force and effect thereafter until it is terminated. Either party by
giving ninety (90) days written notice to the other party may terminate this
Agreement either at the completion of the first year of performance under this
Agreement or at the end of any subsequent year.
b) This Agreement will be in effect for a minimum of three years and will be
automatically renewable in one year increments based upon the fulfillment of
mutually agreed upon sales quotas.
c) Termination of this Agreement shall not affect the obligation of Distributor
to pay Supplier all amounts due as a result of Products tendered to Distributor
on or before the date of such termination, and interest thereon to the extent
any such amounts are paid after the date they became or will become due pursuant
to this Agreement.
15. Sole Agreement
a) This Agreement is intended to be the sole and complete agreement of the
obligations and rights of the parties as to all matters covered by this
Agreement, and supersedes all previous understandings, agreements, negotiations
and proposals relating thereto.
b) This Agreement is not assignable by the Distributor without reasonable
evaluation and written permission from the Supplier.
16. Governing Law
a) This Agreement shall be governed by and construed in accordance with the laws
of the State of New York in the United States.
17. Attorneys Fees and Arbitration
a) Should legal action, or the incurring of legal fees without litigation, be
necessary to enforce or interpret any of the rights or duties of the parties
herein, the prevailing party in the case of such litigation, or party in default
if no court action is instituted, shall be responsible for payment of all the
other party's attorneys' fees, including all costs reasonably related to any
litigation which may arise, including but not limited to fees for the services
of expert consultants or witnesses.
18. Execution
a) Each party executing this Agreement on behalf of a corporation personally
warrants that they have full authority to execute this Agreement on behalf of
such corporation and that the Agreement is binding on that corporation.
Accident Prevention Plus, LLC American Overseas Corp.
By: /s/ Xxxxx Xxxxxxx 8/20/98 By: /s/ Xxxxx Xxxxxxxxxx 8/27/98
------------------------- ----------------------------
Name/Date Name/Date
By: Xxxxxx Xxxxxxx By: Xxxxx Xxxxxxxxxx
-------------- ------------------
President Managing Director
APPENDIX A
THE PRODUCTS
EXHIBIT B
As pursuant to section 10.9 of the Operating Agreement, the Board of Directors
has voted to have the option of restructuring to a Corporation due to the
difficulties that frequently arise in trying to raise capital for a Limited
Liability Company.
As mandated under this Agreement, the following signatures are those of the
Members of the LLC:
/s/ Xxxxxxx Xxxxxxxx 2/09/97
--------------------------
Signature/Date
Xxxxxxx Xxxxxxxx
Chief Executive Officer
/s/ Xxxxxx Xxxxxxx 2/09/97
-------------------------
Signature/Date
Xxxxxx Xxxxxxx
President
/s/ Xxxx Xxxx Xxxxxx 2/09/97
----------------------------
Signature/Date
Jean_Paul Daveau
Vice President
ADDENDUM
TO
DlSTRIBUTOR AGREEMENT
This shall serve as an addendum to the Distributor Agreemet that went into
effect on August 20, 1998 by and between Accident Prevention Plus, LLC
(Supplier) and American Overseas Corporation (Distributor).
It has been previously agreed that Distributor will pay to Supplier US$5 million
for consideration of "non-exclusive" world wide distribution rights. This
agreement commenced as of the above date and is to be completed within thirty
six months of this date
With this Addendum, the receipt of at least US$2 million will be changed from
August 20, 1999 to commence with US$1 million being received within 60 days from
the initial stock trade date, The next US$1 million will be due no later than
eight months later. The remaining balance must be received according to the
original schedule
Accident Prevention Plus, LLC American Overseas Corp.
By: /s/ Xxxxx Xxxxxxx 7/22/99 By: Xxxxx Xxxxxxxxxx 7/24/99
--------------------------- -------------------------
Name/Date Name/Date
By: Xxxxxx Xxxxxxx By: Xxxxx Xxxxxxxxxx
---------------- ------------------
President Managing Director
ADDENDUM
TO
DISTRIBUTOR AGREEMENT
This shall serve as an addendum to the Distributor Agreement that went into
effect on August 20, 1998 by and between Accident Prevention Plus, LLC
(Supplier) and American Overseas Corporation (Distributor).
In reference to Heading #3 (Prices, Purchases, Delivery and Payment) and section
a)., the following will be eliminated: "Supplier will sell its products to
Distributor at its then current cost plus 5% with an F.O.B. delivery point. The
prices for products are set forth in Appendix A (the "Products")."
The remaining part of this section stays intact.
Accident Prevention Plus, LLC American Overseas Corp.
By: /s/ Xxxxx Xxxxxxx 7/22/99 By: Xxxxx Xxxxxxxxxx 7/24/99
-------------------------- ------------------------
Name/Date Name/Date
By: Xxxxxx Xxxxxxx By: Xxxxx Xxxxxxxxxx
--------------- -------------------
President Managing Director
