Exhibit 99.4
FORM OF INTERNATIONAL DISTRIBUTION AGREEMENT
AUTHORIZED EXCLUSIVE DISTRIBUTOR AGREEMENT
This Agreement is made and entered into on the date of execution hereof by
and between Apollo International of Delaware, Inc. (hereinafter referred to as
"Manufacturer"), a Delaware Corporation, having its principal office located at
6542 North XX Xxxxxxx 00, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxx 00000, XXX, and
_______________________________________, having its principal office at
___________________ _______________________ (hereinafter referred to as
"Distributor").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS
HEREINAFTER SET FORTH, THE PARTIES AGREE AS FOLLOWS:
I. APPOINTMENT
Manufacturer appoint Distributor as an exclusive authorized Distributor to
handle products as listed in Exhibit "A".
II. TERM OF AGREEMENT
Unless otherwise terminated as provided hereafter, this Agreement shall be
in effect from the date hereof, for a period of one (1) year.
III. MANUFACTURER'S OBLIGATIONS
A. MANUALS. Manufacturer will provide the Distributor with one copy of
its equipment manuals. Additional manuals will be supplied for reasonable
requests.
B. TRAINING. Manufacturer will provide the Distributor with training and
technical assistance as Manufacturer deems necessary to aggressively pursue and
make sales in Distributor's territory.
C. DISCOUNT LEVEL. Manufacturer agrees to sell to Distributor products
listed in Exhibit "A" at Manufacturer's current list price less discount listed
in Exhibit "C", for the exclusive territory listed in Exhibit "B".
D. LICENSE OF PROPRIETARY MARKS AND SOFTWARE. Manufacturer grants to
distributor the nontransferable right to use Manufacturer's trademarks, trade
names and proprietary marks solely for the purposes of marketing and display of
the products. Title to all software and programs in any form, used with the
products shall remain with the Manufacturer.
IV. DISTRIBUTOR'S OBLIGATIONS
A. SHIPMENT SCHEDULE. Distributor will provide a purchase order
specifying quantities of products and desired delivery dates covering a 12 month
period.
B. BEST EFFORTS. Distributor shall use its best efforts to promote the
distribution of the products, including but not limited to the advertising of
the products in appropriate media, and informing of the customers and potential
customers regarding the products.
C. EMPLOYMENT OF QUALIFIED PERSONNEL. Distributor shall employ
sufficiently trained and qualified personnel to enable Distributor to perform
its obligations hereunder. Distributor's employees shall become familiar with
the technology and application of the products.
D. NOTICE OF DISPUTES. Distributor shall inform the Manufacturer of the
details and circumstances of any dispute which may become serious arising
between it and its customers and shall
not, without prior written permission from an officer of the Manufacturer,
compromise or settle the dispute.
E. NOTICE TO MANUFACTURER. Distributor shall immediately advise
Manufacturer of any legal notice served on Distributor which might affect
Manufacturer; advise Manufacturer on market potential, trends, and forecasts,
the credit of present and prospective customers, competition, marketing
techniques, handle promptly all correspondence from Manufacturer, and assist and
cooperate with Manufacturer's engineers, service and sales personnel during
trips to the Distributor.
F. INTEREST IN PROPRIETARY MARKS. Distributor expressly acknowledges
Manufacturer's exclusive right, title and interest to the trademarks, trade
names and proprietary marks licensed to the Distributor under this Agreement,
and agrees not to represent in any manner that the Distributor has any ownership
in Manufacturer's proprietary marks. Distributor further agrees that his use of
the proprietary marks should not create in his favor any right, title or
interest in or to Manufacture's proprietary marks and that all such use shall
inure to the benefit of Manufacturer.
G. CONFIDENTIALITY. Distributor recognizes Manufacturer has developed
and is the owner of products which consist of certain algorithms, ideas,
inventions, processes and processing techniques that Manufacturer believes have
substantial monetary value and, in which Manufacturer considers TRADE SECRET,
PROPRIETARY AND/OR CONFIDENTIAL; Manufacturer is desirous of maintaining
rigorous control over the products whether or not they are patentable and
Distributor agrees that for the period of this Agreement, including any renewals
hereof, and for a period of three years following the termination of the
agreement, it will exercise the highest level of due care to prevent disclosure
of any proprietary and confidential specifications, documents and any other
information provided to Distributor by Manufacture. These measures shall
include, but not be limited to:
a. Distributor shall restrict access to all proprietary information
to only those employees of the Distributor who must have such access in order to
perform his or her specific obligations pursuant to the Distributor's business;
Distributor shall take all necessary and proper precautions to insure that
unnecessary and unauthorized access to the information by its employees does not
occur.
b. Distributor shall treat the ideas and the expressions thereof
contained in the specifications documents and other information provided to
Distributor by Manufacturer, as TRADE SECRET, PROPRIETARY AND/OR CONFIDENTIAL
and belonging solely to this Manufacturer and shall not without the prior
written permission of an officer of Manufacturer copy or duplicate or allow to
be copied or duplicated by a third party any physical embodiments of said
specifications, documents or other information.
c. Distributor shall maintain such confidential and proprietary
information in strict confidence, make no use or disclosure thereof except to
those users, and limited disclosures which are consistent with the objects and
spirit of this Agreement.
d. Distributor agrees to notify Manufacturer immediately of any
unauthorized possession, use or knowledge of the specifications, documents and
other information provided to Distributor by use or knowledge and shall assist
in preventing any recurrence thereof and shall cooperate with Manufacturer in
any litigation or other proceedings deemed necessary by Manufacturer to protect
Manufacturer's proprietary rights.
e. COPYRIGHT. Distributor will maintain any copyright protection of
Apollo International of Delaware, Inc., copyrighted material.
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V. ACCEPTANCE OF ORDERS
Written releases of orders by Distributor must be given at least sixty (60)
days in advance of shipping dates. Changes in delivery schedules (without
charge) must be made in writing at least fifteen (15) days prior to scheduled
delivery dates. If less than fifteen (15) days notice is given, a
reconfiguration charge of One Hundred Dollars ($100.00) per one thousand dollars
of purchase order volume determined by the list price, may be applied by
Manufacturer. The right to reject any order is reserved by Manufacturer, even
if a previous quotation has been made, without changing or prejudicing the
relationship between the Manufacture and the Distributor. An order is accepted
by Manufacturer when shipped or when it is acknowledged by Manufacturer,
whichever occurs first. Orders for shipment of products from inventory will be
accepted by Manufacturer only upon receipt of appropriate legal authorization
(letter, purchase order, etc.). Manufacturer assumes no liability and shall not
be liable to Distributor for any failure to fill or delay in filling orders
received from Distributor and accepted by Manufacturer. Manufacturer may
withhold shipment or products because of the conditions of Distributor's account
or if it determines that Distributor is not financially responsible. If the
foregoing conditions are not rectified to Manufacturer's reasonable
satisfaction, Manufacturer may terminate this Agreement pursuant to Section
XIII, Paragraph A(4). Distributor shall not be permitted to take any credit
against or set off any amounts due Manufacturer without prior written
authorization of Manufacturer. In no way shall this paragraph be deemed to
modify the mutually agreed upon release schedule set forth in Appendix D; the
purpose of the aforementioned releases shall be to specify product mix for that
release.
All orders and releases are to be addressed to: Apollo International
of Delaware Inc.
0000 Xxxxx XX 00
Xxxxx 000
Xxxxxx Xxxxx,
Xxxxxxx 00000, XXX
Telephone:
(000) 000-0000
Fax: (000) 000-0000
Attention:
Vice President
Marketing
VI. DELIVERY
Delivery of Manufacturer's product purchased by Distributor hereunder
shall be made for and on behalf of Distributor and by a carrier selected by
Distributor. Manufacturer will package all equipment suitable for shipment by
air freight, F.O.B. shipping point. Distributor shall bear all risk of loss and
expense during shipment and until sale of products is finalized. Shipments will
be made to Distributor's main office as specified herein or to any Distributor's
established offices. Partial shipments will not be made unless specified by
Distributor in writing.
VII. TAXES, INSURANCE, TRANSPORTATION AND OTHER CHARGES
In addition to the prices for the products, Distributor shall pay all
sales, use, excise, or similar taxes, import/export fees, tariffs,
transportation, rigging, insurance charges and all other costs or charges
associated with the delivery of products to the destinations specified by
Distributor.
VIII. PAYMENT TERMS
Payment on Products will be made 100% of amount due by wire transfer or
irrevocable letter of credit to the account of Manufacturer's choice and payable
on presentation of shipping documents with each order by Distributor.
IX. PRICE ADJUSTMENTS
Manufacturer shall have the right at any time to adjust its prices by
giving Distributor written notice no less than sixty (60) days prior to the date
upon which the adjusted price or prices are to become effective. No adjustment
of price shall become effective for orders which are accepted by Manufacturer
during such sixty (60) day period.
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X. ACCEPTANCE AND RETURNS
Following the date of receipt of products, Distributor will have a
period of thirty (30) days in which to notify Manufacturer of shipment
discrepancies.
XI. WARRANTY, DISCLAIMER, AND LIMITATION OF LIBAILITY
Distributor shall be responsible to its customers for any and all
warranties which it makes relating to all items sold by Manufacturer and for
providing replacements or other adjustments as required by or in connection with
said warranties.
All items sold by Manufacturer are guaranteed against defects in
materials or workmanship for a period of two (2) years from the date of receipt
from Distributor during such period, provided that:
1. Distributor has obtained from Manufacturer a return authorization
number; and
2. The defective merchandise is returned to a location specified by
Manufacturer, accompanied by a report of findings indicating the basis for
rejection and with transportation charges prepaid by Distributor.
XII. PARTY RELATIONSHIP
This Agreement does not create an employer-employee relationship between
Manufacturer and Distributor, nor any agency, joint venture or partnership.
Distributor shall have no authority to act for or to bind Manufacturer in any
way, to alter any of the terms or conditions of Manufacturer's standard forms,
to warrant or to execute agreements on behalf of Manufacturer, or to represent
that Manufacturer is in any way responsible for the acts or omissions of
Distributor. Distributor shall be an independent contractor only. Distributor
agrees to hold harmless and to indemnify Manufacturer for violation of above
conditions.
XIII. TERMINATION
A. TERMINATION. This Agreement may also be terminated on occurrence
of the following events:
1. By either party at any time if the other party has
breached any provision contained in this Agreement
by written notice specifying the breach and the
other party does not remedy the breach within 30
days.
2. Immediately by the petitioning by either party for
reorganization under the Bankruptcy Act or having
been adjudicated as bankrupt, or by the
appointment for the benefit of creditors, or by an
involuntary bankruptcy petition brought against
either party which has not been discharged within
ninety (90) days of date of the petition.
3. Immediately by the assignment of this Agreement or
any of its rights hereunder by Distributor,
including without limiting the generality thereof,
the transfer of a majority or of a beneficial
interest in distributor's business whether a sole
proprietorship, corporation or partnership without
the prior written permission of manufacturer.
B. DELIVERIES AFTER TERMINATION. With the establishment of a date
of termination of this Agreement, Manufacturer shall be obligated to deliver and
Distributor shall be obligated to accept the products as Distributor shall have
ordered from Manufacturer prior to the date established for
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termination. Upon termination, Manufacturer, at its option, may prescribe terms
of payment other than the terms stated in this Agreement.
C. EFFECT OF TERMINATION. Distributor's rights upon termination of
this Agreement shall immediately terminate; however, such termination shall not
affect any of the obligations of Distributor which exist as of the date of
termination, or these obligations of Distributor which from the context of this
Agreement are intended to survive its termination.
D. REPURCHASE AFTER TERMINATION. In the event that the termination
of this Agreement is initiated by Distributor, Manufacturer shall have the
option to purchase and the Distributor shall, if the option is exercised, resell
to Manufacturer at the Distributor's net cost, less twenty five percent (25%),
all or any portion of the Distributor's Manufacturer inventory which is
determined, after inspection by Manufacturer, to be in good working order.
If, however, the termination of this Agreement is a result of the giving
of the notice, or as a result of termination by the Manufacturer, Manufacturer,
at its option, may within thirty (30) days after the termination, repurchase
products from the Distributor at the net price paid by the Distributor, less a
5% restocking charge, or at the then current Manufacturer net price to its
Distributor's generally, whichever is less.
E. RETURN OF PROPRIETARY INFORMATION. Upon termination of this
Agreement, Distributor shall immediately return to Manufacturer all physical
embodiments, all specifications, documents and other information provided to
Distributor by Manufacturer including, but not limited to all contracts and
correspondence required to be furnished to Manufacturer by the terms of this
Agreement or notices given pursuant to this Agreement, all promotional,
advertising, and all other tangible property. Upon termination Distributor
shall also discontinue the use of the Manufacturer's trade name, trademarks and
proprietary marks, except instruction and maintenance manuals normally supplied
by Manufacturer to allow Distributor to install and maintain the purchased
equipment.
XIV. PATENTS
A. PATENT INDEMNITY. The Manufacturer shall, at its expense, defend
and indemnify Distributor for costs and damages incurred in any suit, claim, or
proceeding brought against the Distributor alleging that the product(s) sold
pursuant to this Agreement infringes any patents, provided the Manufacturer is
promptly notified, given all assistance required, and permitted to direct the
defense. Further, the Manufacturer shall pay any judgment based on such
infringement rendered in such suit by final judgment of a court of last resort.
Alternatively, in the event that the Manufacturer desires to minimize its
liabilities hereunder, the Manufacturer shall, at its option, either substitute
a fully equivalent non-infringing item so that it no longer infringes but
remains fully equivalent, or obtain for Distributor or its customer, at its own
expense, the right to continue use of such item. If none of the foregoing is
feasible, the Manufacturer may take back such item and refund to Distributor or
its customer the purchase price.
The contrary above notwithstanding, Manufacturer shall have no responsibility to
defend or indemnify Distributor in the event that the infringement or alleged
infringement results from any modifications performed by or for Distributor.
The foregoing states the entire liability of the Manufacturer for patent
infringements.
XV. DISPUTES
A. ARBITRATION OF DISPUTES. The parties agree that if any dispute
or disagreement as to any matter shall arise hereunder, the same shall be
subject to determination by a Board of Arbitrators located in Tampa, Florida,
USA. The Board of Arbitrators shall consist of one member appointed by
Manufacturer and one member by Distributor, and in the event two arbitrators
cannot within ten (10) days of the appointment of the second arbitrator decide
the dispute, a third arbitrator shall be selected by the
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two arbitrators named. The party electing to invoke the arbitration proceeding
shall give written notice of the nomination of his arbitrator to the other party
at the address provided in this Agreement, and the recipient of such notice
shall have seven (7) days from the delivery of such notice in which to name his
arbitrator and advise the other party. Failure of the party receiving notice
within seven (7) days to name his arbitrator shall entitle the one giving notice
to name the second arbitrator.
The Board shall be governed in its procedure by the rules of the
American Arbitration Association then in force.
XVI. GENERAL TERMS
A. WAIVER. The failure of Manufacturer to require the performance
of any of the terms and conditions of this Agreement or the specific waiver by
Manufacturer to Distributor for any breach, shall not prevent the subsequent
enforcement of any of the terms or conditions of this Agreement.
B. NOTICES. All notices provided in this Agreement shall be sent by
registered or certified mail to the parties as listed herein, unless either
party changes the address by written notice to the other.
C. ENTIRE AGREEMENT AND UNDERSTANDING. This agreement, including
the exhibits hereto attached, sets forth the entire Agreement and understanding
between the parties as to the matter contained herein and supersedes any other
oral or written Agreement, and the terms and conditions contained herein shall
only be amended by subsequent writing signed by the party to be bound or held
responsible.
D. BINDING. This Agreement shall inure to the benefit of and bind
the parties hereto, their heirs, personal representatives, successors and
assigns.
E. CONSTRUCTION OF THE AGREEMENT. This Agreement shall be construed
under and by the laws of the State of Florida, United States of America.
F. INVALIDITY OF PROVISION. The invalidity of any provision of this
Agreement or the invalidity of the application of such provision to any person
or circumstance, shall not effect the validity of the remainder of this
agreement.
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IN WITNESS WHEREOF, Manufacturer has caused this document to be signed
by its President and attested to by its Secretary, all by authority of the Board
of Directors, the day and year below written, and Distributor has caused its
signature and seal to be placed on this Agreement, all by proper authority.
This the _____ day of ________________ 19___
Apollo International of Delaware Inc.
(Corporate Name) (Corporate Name)
By: By:
---------------------------- ---------------------------
President President
Attest: Attest:
------------------------ -----------------------
Secretary Secretary
Date: Date:
(Corporate Seal) (Corporate Seal)
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APPENDIX A
APOLLO INTERNATIONAL OF DELAWARE INC.
PRICE LIST
APPENDIX B
TERRITORY
The exclusive territory granted under this Agreement is defined as
follows:
