Terms of Sale
1 | Mirasys, LLC Distribution Agreement
By checking the “Agree to Sale Terms” button, you are creating a legally binding Agreement to these terms
Vendor and Distributor are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
DISTRIBUTOR desires to purchase certain Products (as hereinafter defined) from VENDOR from time to time, and VENDOR desires to sell certain Products to DISTRIBUTOR in accordance with the terms and conditions set forth in this Agreement. VENDOR desires to appoint DISTRIBUTOR as its non-exclusive DISTRIBUTOR to market Products within the Territory (as hereinafter defined), and DISTRIBUTOR accepts such appointment on the terms set forth in this Agreement. This Agreement does not grant DISTRIBUTOR or VENDOR an exclusive right to purchase or sell Products, and shall not prevent either Party from developing or acquiring other vendors or distribution customers. NOW THEREFORE, in consideration of the recitals, the mutual covenants contained in this Agreement and other good and valuable consideration, DISTRIBUTOR and VENDOR hereby agree as follows:
1.1 “Customer” means any person, firm, company or entity which purchases any of the Products from DISTRIBUTOR. 1.2 “Products” means those products of VENDOR described in Exhibit A of this Agreement, as modified in accordance with the terms and conditions of this Agreement. 1.3 “Software” has the meaning set forth in Section 11. 1.4 “Term” has the meaning set forth in Section 2. 1.5 “Territory” means the geographic areas set forth in Exhibit B of this Agreement, designated by VENDOR for the exercise of DISTRIBUTOR’s rights and obligations in this Agreement. 1.6 “Trademark” has the meaning set forth in Section 12.
The term of this Agreement shall commence on the Effective Date and, unless terminated by either Party as set forth in this Agreement, shall remain in full force and effect for a term of one (1) year. This Agreement will be automatically renewed for successive one (1) year terms unless either Party serves written notice, at least thirty (30) days prior to the expiration of the initial term or any renewal term, of its intention not to renew.
APPOINTMENT AS DISTRIBUTOR AND LICENSE GRANT
3.1 Appointment and License Grant: Subject to all the terms and conditions of this Agreement, VENDOR hereby appoints DISTRIBUTOR during the Term, as its non-exclusive DISTRIBUTOR in the Territory for the purposes described herein and grants to DISTRIBUTOR a limited, non-transferable, non-sub licensable, revocable and non-exclusive license to market, demonstrate, distribute and sell the Products to Customers solely within the Territory. Except as set forth in the previous sentence,
758 S Auto Mall Drive #1
American Fork, Utah 84003
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DISTRIBUTOR acknowledges and agrees that nothing contained in this Agreement shall in any way limit, impair or restrict VENDOR’s right to copy directly or indirectly, manufacture, market, distribute, demonstrate, display, create derivative works from, sell, transfer, assign and/or license the Products on a worldwide or territorial basis, including in the Territory, to the maximum extent permissible under applicable law. The Parties may include additional VENDOR products from time to time during the Term, and such VENDOR products shall be included within the definition of Products upon execution of a mutual written agreement between the Parties regarding the same. Notwithstanding the foregoing, VENDOR shall have the right to change, modify, or discontinue any of the Products at its sole discretion, and, upon VENDOR’s provision of thirty (30) days prior written notice to DISTRIBUTOR, any such discontinued Product(s) shall be deemed removed from coverage under this Agreement.
3.2 Technical and Sales Literature: Subject to all the terms and conditions of this Agreement, during the Term, VENDOR grants to DISTRIBUTOR a non-exclusive, non-transferable, royalty free license, to use the VENDOR sales and technical literature and materials to promote, market, sell and distribute the Products in the Territory.
3.3 Restrictions: Except as specifically permitted in this Agreement or in writing by VENDOR, DISTRIBUTOR hereby represents, warrants and agrees that it will not (nor will DISTRIBUTOR permit any third party to): (i) copy or manufacture any Products; (ii) sell, license, sublicense, distribute, assign or transfer the Products or any rights granted to DISTRIBUTOR hereunder; (iii) translate, modify, adapt, enhance, extend, decompile, disassemble or reverse engineer any of the Products; or (iv) market, sell or distribute the Products, or solicit potential customers, outside the Territory. DISTRIBUTOR may fill orders received from outside the Territory (to the extent that each such order is unsolicited) only upon obtaining prior written approval of VENDOR.
3.4 Reserved Rights: Except as otherwise set forth in this Agreement, no express or implied right is granted to DISTRIBUTOR regarding the Products, the VENDOR technical and sales literature, the Software and the Trademarks, and DISTRIBUTOR acknowledges that all copyright, patent, trade secret and other intellectual property rights in and to the Products, VENDOR technical and sales literature, the Software and the Trademarks are the sole property of VENDOR. VENDOR reserves all rights not expressly granted herein.
RESPONSIBILITIES OF DISTRIBUTOR
4.1 General: In addition to other obligations set forth in this Agreement, DISTRIBUTOR agrees that it shall:
(a) Use its best efforts to promote the sale of and to sell the Products only to resellers;
(b) Maintain a trained and capable sales and support staff to effectively explain, demonstrate, market and support the Products;
(c) Participate in training programs established by VENDOR at DISTRIBUTOR’s own expense;
(d) Provide general technical assistance to resellers regarding the Products and direct all other technical issues to VENDOR; (e) List Products in its catalog(s) and web-site(s); (f) Maintain a representative inventory of Products in reasonably sufficient quantity to provide adequate and timely delivery to resellers; (g) Promptly report to VENDOR all Product defects and keep VENDOR informed of any reseller complaints that relate to the Products;
(h) And furnish to VENDOR a point of sale report by the fifth day of each calendar month detailing the part numbers of Products shipped, quantity of Products shipped, value of Product shipped (based on DISTRIBUTOR pricing), reseller name and ship-to location in the format requested by VENDOR and relating to the previous month’s sales.
4.2 Distributor Expenses: DISTRIBUTOR assumes full responsibility for all its own costs and expenses incurred in carrying out its obligations under this Agreement, including but not limited to all rents, salaries, commissions, advertising, translations of documents and materials, demonstration, travel and accommodation for the employees, agents, representatives or other personnel of DISTRIBUTOR.
4.3 Marketing Materials: All marketing materials created by or for DISTRIBUTOR relating to the Products must be approved in writing by VENDOR prior to use by DISTRIBUTOR.
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PURCHASE ORDERS AND SHIPMENTS
5.1 Purchase Orders:
5.1.1 This Agreement shall not obligate DISTRIBUTOR to purchase any Products except as specifically set forth in a written purchase order.
5.1.2 Purchase orders from DISTRIBUTOR may be submitted electronically or in writing, and any such submission shall constitute an “Order” for the purposes of this Agreement. No Order shall be binding on VENDOR until accepted as set forth in Section 5.1.4 below. All Orders shall specify, at a minimum, the purchase order number, product, quantity, Distributor price, the billing and delivery addresses, the requested delivery date(s), and shipping instructions (when necessary). With respect to an electronically submitted Order, DISTRIBUTOR agrees to be bound by such electronic Order if it originated at DISTRIBUTOR’s business facility or by any of DISTRIBUTOR’s employees or other authorized agents.
5.1.3 DISTRIBUTOR acknowledges and agrees that all Orders shall be governed exclusively by the terms and conditions of this Agreement. Any terms or conditions in Distributor’s Orders that are in addition to or in any way different from the terms and conditions of this Agreement shall have no force and effect, unless approved in writing by VENDOR.
5.1.4 VENDOR has the unilateral right to accept or decline any Order placed by DISTRIBUTOR. Should VENDOR reject an Order placed by DISTRIBUTOR, it will do so in writing and within five (5) business days of receiving said Order.
Within 24 hours of receipt of an accepted Order from DISTRIBUTOR, VENDOR will send DISTRIBUTOR a confirmation of Order receipt with expected shipping dates of the Products.
5.1.5 At any time prior to the shipment date of the Products, VENDOR may, at its option, accept alterations to an Order to (i) change a location for delivery, (ii) modify the quantity or type of Products to be delivered, or (iii) correct typographical or clerical errors. Both Parties recognize that such alterations may delay quoted shipment dates.
5.2.1 All Orders and shipments are F.O.B. Point of Shipment. DISTRIBUTOR shall take title to the Products upon delivery of the same by VENDOR to a common carrier or to DISTRIBUTOR’s representative at the F.O.B. point, and all risk of loss and expenses in connection with such Products shall thereafter rest with DISTRIBUTOR.
5.2.2 DISTRIBUTOR shall have the right to select the common carrier for transport of the Products. DISTRIBUTOR shall pay all such transportation charges.
5.2.3 VENDOR shall use its best efforts to deliver Products by the delivery date set forth in the applicable Order or as otherwise agreed upon by the Parties, provided that under no circumstances will VENDOR be liable for any loss, expense, or damage incurred by DISTRIBUTOR or DISTRIBUTOR’s reseller if VENDOR fails to meet the specified delivery schedule.
5.2.4 In the event of any shortage, damage or discrepancy in or to a shipment of Products, DISTRIBUTOR shall promptly report the same to VENDOR and furnish such written evidence or other documentation as DISTRIBUTOR may deem appropriate. VENDOR shall not be liable for any such shortage, damage or discrepancy unless VENDOR has received notice and evidence thereof from DISTRIBUTOR within ten (10) business days after delivery of the Products at the F.O.B. point. If such evidence demonstrates to VENDOR’s satisfaction that VENDOR is responsible for such shortage, damage or discrepancy, VENDOR shall promptly deliver additional or substitute Products to DISTRIBUTOR.
6.1 Quarterly Stock Rotation: Once in each quarter, DISTRIBUTOR may return for credit Products in saleable condition, the invoiced value of which will not exceed fifteen percent (15%) of the total invoiced amount to DISTRIBUTOR for all Products purchased by DISTRIBUTOR during the previous quarter, and only if all returns are accompanied by an Order of equal or greater invoiced value. The amount of any such credit shall be based upon the purchase price actually paid by DISTRIBUTOR for the returned Product. Products in saleable condition shall mean new, unused, standard Products in original, unopened packaging and shipping containers that have been in DISTRIBUTOR’s inventory for less than twelve (12) months as determined by the date of the original invoice and which are Products currently being sold by VENDOR. DISTRIBUTOR shall pay for all freight charges for the return of all Products under this Section 6.1.
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6.2 Obsolete or Discontinued Product: DISTRIBUTOR shall have the right to return to VENDOR for credit all Products that become obsolete or are discontinued; provided DISTRIBUTOR returns such Products within ninety (90) days after DISTRIBUTOR receives written notice from VENDOR that such Products are obsolete or discontinued. The amount of any such credit shall be based upon the purchase price actually paid by DISTRIBUTOR for the returned Product. VENDOR shall pay for all freight charges for the return of all Products under this Section 6.2.
6.3 Condition Precedent to Returns: As a condition precedent to returning Products, DISTRIBUTOR must contact VENDOR for a return material authorization number (“RMA Number”) and other appropriate instructions. The RMA Number must be displayed prominently on the outside of the shipping container. Items without a proper RMA Number will be returned to DISTRIBUTOR freight collect.
6.4 Restocking Fee: Upon approval from VENDOR, all returns will be subject to a 30% restocking fee. No exceptions. All returns must be completed within thirty (30) days of purchase.
PRICING AND TERMS OF PAYMENT
7.1 Prices: DISTRIBUTOR may purchase Products at the discounted prices and upon the terms and conditions specified in Exhibit A of this Agreement, or as changed from time to time in accordance with Sections 7.3 and 7.4 below. All prices are subject to any additional discounts or rebates, as may be offered by VENDOR to DISTRIBUTOR from time to time.
7.2 Taxes: All payments due to VENDOR hereunder are exclusive of any tax, tariff or custom duties, as may be applicable. DISTRIBUTOR shall, for and on behalf of VENDOR, be responsible for all taxes and tariffs including, without limitation, sales, use, property, excise, import, value added and gross receipts levied on this Agreement or the Products, except taxes based on VENDOR’s net income. DISTRIBUTOR agrees that if any of the foregoing taxes and tariffs (other than VENDOR’s net income) are paid by VENDOR, DISTRIBUTOR shall immediately reimburse VENDOR for the amount paid plus any interest, penalties and expenses incurred in connection therewith and interest thereon. In the event that DISTRIBUTOR is required by any applicable law to deduct any amount from the amounts to be paid to VENDOR under this Agreement on account of withholding taxes or any other taxes or levies of any kind, DISTRIBUTOR agrees that it shall pay all such additional amounts so that the net amounts received by VENDOR are the amounts specified herein. DISTRIBUTOR shall provide VENDOR, on a regular timely basis, and upon written request from VENDOR, with copies of official tax receipts or other evidence of payment of such withholding taxes. To the extent that any withholding tax is payable by VENDOR under applicable law in the Territory, DISTRIBUTOR shall provide VENDOR with any and all assistance reasonably requested by VENDOR to obtain the benefits of any applicable tax treaty between the United States and the applicable jurisdiction within the Territory.
7.3 Price Increases: VENDOR shall have the right to increase prices from time to time upon written notice to DISTRIBUTOR not less than thirty (30) days prior to the effective date of such increase. All orders placed prior to the effective date of the price increase for shipment within sixty (60) days after the effective date, shall be invoiced by VENDOR at the price in affect at the time of order.
7.4 Price Decreases and Price Protection: VENDOR shall have the right to decrease prices from time to time, upon written notice to DISTRIBUTOR. In the event VENDOR decreases its DISTRIBUTOR price for any Product, VENDOR will immediately grant a corresponding price reduction on new Orders as well as on affected Products ordered but not shipped as of the date of the price reduction announcement. VENDOR shall also issue a credit memo to DISTRIBUTOR for the full amount of any price decrease for all affected Products in DISTRIBUTOR’s inventory on the effective date of such price decrease, including Products in transit to DISTRIBUTOR on the effective date of the price reduction. In order to receive credit for affected Product(s) in DISTRIBUTOR’s inventory.
7.5 Terms of Payment: Terms of payment are net 30 days from the date of invoice. All invoice amounts and payments will be made in U.S. Dollars in immediately available funds. VENDOR reserves the right at any time to revoke any credit extended to DISTRIBUTOR if payment is in arrears for more than forty-five (45) days after notice to DISTRIBUTOR, or DISTRIBUTOR’s credit worthiness does not warrant further extension of credit.
7.6 Invoices: All invoices to DISTRIBUTOR shall contain (i) VENDOR’s name and invoice date, (ii) a reference to the purchase order or other authorizing document, (iii) separate descriptions, unit prices and quantities of the Products being invoiced, (iv) shipping charges (if applicable), (v) tariffs, custom duties and taxes (if applicable), and (vi) mailing address for payment. Notwithstanding any pre-printed terms or conditions on VENDOR’s invoices, the terms and conditions of this Agreement shall apply to and govern all invoices issued by VENDOR hereunder.
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DISTRIBUTOR will use its best efforts to promote vigorously and aggressively the Sales and distribution of VENDOR Products in the Distribution Territory, including advertising and participating in trade shows. Distributor will maintain, at its own expense, adequate facilities and sufficient and adequately trained personnel to perform its obligations under this Agreement. DISTRIBUTOR shall ensure that its Sub-Distributors have similarly adequate facilities and competent personnel.
9.1 Governmental Authorization: During the Term, DISTRIBUTOR shall be responsible for determining, obtaining, and maintaining all governmental authorizations required to import, promote, market, sell and distribute Products in the Territory or otherwise perform its obligations under this Agreement, including but not limited to import licenses and foreign exchange permits. DISTRIBUTOR shall be solely responsible for the exportation of the Products outside the United States and the importation of the Products into the Territory, and shall be solely responsible for payment of all taxes, duties and other governmental charges incurred in connection with such exportation or importation of the Products, and the marketing, sale and distribution of the Products in the Territory, and DISTRIBUTOR shall cooperate with VENDOR and provide VENDOR with any and all assistance requested by VENDOR to facilitate the foregoing. In the event that DISTRIBUTOR exports the Products outside the Territory, DISTRIBUTOR shall be solely responsible for compliance with all applicable export and import rules and regulations and for obtaining all applicable licenses. In the event that any required governmental authorization or license is conditioned upon the amendment of this Agreement, VENDOR shall have the right to terminate this Agreement without further obligation or liability to DISTRIBUTOR. Upon expiration or termination of this Agreement, DISTRIBUTOR shall promptly assign all such authorizations, licenses or permits to any party designated by VENDOR to whom assignment is permitted under applicable law.
9.2 Applicable Laws: DISTRIBUTOR shall, at its expense, comply with all applicable provincial, federal, state, county, and local rules, of all governmental and authoritative entities contained within the Territory, including without limitation, all statutes, laws, ordinances, regulations and codes. At all times during the Term, DISTRIBUTOR shall maintain in full force and effect all governmental authorizations, licenses, certificates, registrations, permits and approvals necessary or appropriate for the importation of the Products into and the marketing and distribution of the Products and DISTRIBUTOR Support Services in the Territory. DISTRIBUTOR will consult with VENDOR to obtain VENDOR’s prior written approval before registering this Agreement with any government authorities. DISTRIBUTOR agrees that it is not an agent of VENDOR and that it may not register itself as such without the prior written consent of VENDOR.
9.3 Export Controls: DISTRIBUTOR acknowledges that the Products may be subject to export controls imposed by U.S. laws and regulations. DISTRIBUTOR shall comply with the U.S. Foreign Corrupt Practices Act and with all export laws and restrictions and regulations of the United States Department of Commerce (the “Commerce Department”) or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of any Products or derivative work of Products or any copy or any direct product thereof in violation of any such restrictions, laws or regulations, to Cuba, Libya, North Korea, Iran, Iraq, Sudan or Afghanistan, or to any Group D:1 or E:2 country (or any national of such country) specified in the then-current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations as published from time to time (the “Export Regulations”), or in violation of the embargo provisions in Part 746 of the Export Regulations, or to any person or entity listed on any “Denied Persons List” promulgated from time to time by the Commerce Department, except in compliance with all licenses and approvals required under applicable export laws and regulations, including without limitation those of the Commerce Department.
LIMITED PRODUCT WARRANTY
VENDOR warrants that all products will be free from material defects in materials and workmanship, under normal use, for a period of twelve (12) months from date of shipment to end user. Accessories and peripherals to the products such as batteries, cables, power adapters, etc. are excluded from the twelve (12) month warranty period stated above and carry a ninety (90) day warranty from the date of shipment to end user. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION 10 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS, THE TECHNICAL AND SALES LITERATURE, OR ANY OTHER SERVICES, MATERIALS OR INFORMATION PROVIDED UNDER THIS AGREEMENT, AND VENDOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT THERETO INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
During the warranty period, VENDOR’s sole liability and DISTRIBUTOR’s exclusive remedy under the foregoing limited warranty shall be limited to, at VENDOR’s option, the repair or exchange of any Products which are determined by VENDOR in its sole discretion to be defective, with no charge for parts or labor, when returned to VENDOR with dated proof of purchase. This warranty does not apply to
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appearance items, batteries or to any component which has been misused, defaced, altered or modified, or which has been serviced or repaired by any entity other than VENDOR or one of VENDOR’s Authorized Service Centers. In no event shall VENDOR be held liable for any damages whatsoever (including without limitation, damages for loss of profits, business interruption, loss of information or other pecuniary loss) arising out of negligence in use and care of any Product. Before returning any defective Product to VENDOR, DISTRIBUTOR must contact VENDOR for a RMA Number and other appropriate instructions. DISTRIBUTOR may then return the defective Product to VENDOR according to those instructions, freight prepaid. The RMA Number must be displayed prominently on the outside of the shipping container. Items without a proper RMA Number will be returned to DISTRIBUTOR freight collect. VENDOR will pay two-day transportation charges for shipment of repaired or replaced Products to DISTRIBUTOR, DISTRIBUTOR’s reseller, or to the end user. VENDOR’s maximum liability for warranty claims is limited to the invoice price of the Product claimed defective.
Notwithstanding anything in this Agreement, all embedded software (including firmware) contained in the Products (the “Software”) is licensed and not sold. Except as expressly licensed to DISTRIBUTOR below, VENDOR retains all rights, title, and interest in and to all Software. VENDOR grants to DISTRIBUTOR, subject to the terms and conditions of this Agreement, a non-exclusive worldwide license to use the Software in object code form only contained in the Products. Nothing contained in this Agreement grants DISTRIBUTOR the right to receive any source code, and DISTRIBUTOR shall not reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code (or the underlying ideas, structure, sequence, organization or algorithms) from the Software.
VENDOR authorizes and grants to DISTRIBUTOR the non-exclusive, revocable right to use the brand names, trademarks, and trade names of the Products and the VENDOR company name (collectively, the “Trademarks”) to advertise and promote the sale of the Products. DISTRIBUTOR’s use of the Trademarks shall at all times comply with applicable federal and state laws and reasonable written guidelines provided by VENDOR. DISTRIBUTOR acknowledges and agrees that it has no right, title or interest in or to any of the Trademarks, other than as a DISTRIBUTOR, and that all use of the Trademarks inures to the benefit of VENDOR. DISTRIBUTOR shall make no contrary representations and will not in any way contest VENDOR’s rights to the Trademarks. DISTRIBUTOR will notify VENDOR of any infringement of which DISTRIBUTOR has actual knowledge. DISTRIBUTOR shall discontinue use of VENDOR’s trademarks or trade names upon termination of this Agreement, except as may be necessary to sell or liquidate any Product remaining in DISTRIBUTOR’s inventory. DISTRIBUTOR shall at no time register any trade names or trademarks or any mark or name confusingly similar to the VENDOR Trademarks.
PROPRIETARY RIGHTS INDEMNIFICATION
Subject to Section 16, VENDOR agrees to indemnify and defend DISTRIBUTOR from any costs, damages, and reasonable attorneys’ fees resulting from any claims by third parties that the use of any Product infringes any U.S. registered patent; provided that DISTRIBUTOR gives VENDOR prompt written notice of any such claim, tenders to VENDOR the defense or settlement of such claim at VENDOR’s expense, and cooperates with VENDOR, at VENDOR’s expense, in defending or settling such claim. In lieu of the foregoing indemnification obligations, VENDOR shall have the option, at its expense and discretion, to either procure the right for the affected end users to continue to use the Product, modify the Product so that it is no longer infringing, replace the Product with a product of equal or superior functional capability, or take back the affected Products from DISTRIBUTOR and its end users and refund to DISTRIBUTOR the purchase price paid therefor reduced by an amount which equals one-sixtieth (1/60) of the purchase price for each month which has elapsed since the Products were delivered to DISTRIBUTOR, plus arrange at VENDOR’s expense to have the Products returned to VENDOR. The rights granted to DISTRIBUTOR under this section shall be DISTRIBUTOR’s sole and exclusive remedy and VENDOR’s sole obligation for any alleged infringement of any patent or other proprietary right. VENDOR will not be obligated to defend or otherwise indemnify DISTRIBUTOR in any lawsuit or as to any claim which arises from or relates to: (i) any combination of the Products with another product or products not supplied by VENDOR; (ii) use of the Products for purposes for which they were not designed; (iii) modification of the Products by any party other than VENDOR; or (iv) use of allegedly infringing Products when VENDOR has provided DISTRIBUTOR with replacement Products that are non-infringing.
DISTRIBUTOR shall indemnify, defend and hold VENDOR and its officers, directors, agents and employees harmless from and against all claims, suits, demands, actions, proceedings, awards, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all claims arising from or relating to: (i) any
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unauthorized representation, covenant, warranty, guarantee, act or omission made by DISTRIBUTOR or any of its contractors, agents or employees in connection with the Products; (ii) any breach by DISTRIBUTOR or any of its contractors, agents or employees of a representation, warranty, or covenant made by DISTRIBUTOR hereunder; and (iii) any action or omission by DISTRIBUTOR or any of its contractors, agents or employees which caused or is alleged to have caused damage to the person or property of a third party, including without limitation, third party computer equipment.
For the Parties to effectively carry out their obligations under this Agreement, they may from time to time be required to disclose to the other Party confidential information. “Confidential Information” shall be clearly designated, in writing, as “Confidential,” or if verbally disclosed, identified as being confidential at the time of disclosure, and within thirty (30) days of such verbal disclosure, a written memorandum shall be sent to the other Party confirming that the verbal information disclosed is confidential. Confidential Information shall not include:
Information generally available to the public without any breach of this Agreement or any other agreement between the Parties;
Information previously known, without restriction, by the Party the Confidential Information is disclosed to, as shown by written documentation;
Information independently developed by a Party outside the scope of this Agreement without use of any of the other Party’s Confidential Information; or
Information lawfully disclosed without restriction by a third party.
Each Party agrees that it shall restrict disclosure of the other Party’s Confidential Information to those employees who have a need to know to perform such Party’s obligations under this Agreement. Each Party further agrees that, except as required by law, during the term of this Agreement and thereafter for a period of five (5) years, it shall not disclose the other Party’s Confidential Information to any other person or entity without the express written consent of the other Party, that it shall not make use of any such Confidential Information other than for performance of this Agreement, and that it shall use at least the same degree of care (but, at a minimum, reasonable care) to avoid disclosure of such Confidential Information as it uses with respect to its own Confidential Information.
LIMITATION OF LIABILITY
IN NO EVENT WILL VENDOR BE LIABLE TO DISTRIBUTOR FOR CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR BUSINESS OPPORTUNITIES), EXEMPLARY, INCIDENTAL OR INDIRECT OR PUNITIVE DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, BUSINESS OPPORTUNITY OR PROFIT, IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF THE PRODUCTS PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS OR IF THE EXCLUSIVE REMEDIES STATED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. DISTRIBUTOR AGREES THAT VENDOR’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY DISTRIBUTOR TO VENDOR FOR PRODUCTS UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD.
RELATIONSHIP OF PARTIES
The relationship of the Parties is that of independent contractors. Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between DISTRIBUTOR and VENDOR. Neither Party shall act or represent itself, directly or by implication, as an agent of the other Party.
Any and all notices required or permitted to be given to a Party pursuant to the provisions of this Agreement will be in writing and will be effective and deemed to provide such Party sufficient notice under this Agreement on the earliest of the following: (i) at the time of personal delivery, if delivery is in person; (ii) at the time of transmission by facsimile, addressed to the other Party at its facsimile number specified herein (or hereafter modified by subsequent notice to the Parties hereto), with confirmation of receipt made by printed confirmation sheet verifying successful transmission of the facsimile; (iii) one (1) business day after deposit with an express overnight courier for United States deliveries, or two (2) business days after such deposit for deliveries outside of the United States specifying next business day delivery; or (iv) three (3) business days after deposit in the United States mail by certified mail (return receipt requested) for
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United States deliveries. All notices for delivery outside the United States will be sent by facsimile or by express courier. All notices not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the Party to be notified at the address or facsimile number as follows, or at such other address or facsimile number as such other Party may designate by one of the indicated means of notice herein to the other Parties hereto as follows:
To Vendor: MIRASYS, LLC Attention: Accounting
758 S Auto Mall Drive #1
American Fork, UT 84003
Telephone: (866) 297-8883
Fax: (866) 239-5655
Other than with respect to any payment or confidentiality obligation, neither Party will be liable to the other Party for any delay, error, failure in performance or interruption of performance resulting from causes beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, earthquakes, floods, acts of God and similar occurrences. If a force majeure condition occurs, the Party delayed or unable to perform shall give immediate notice to the other Party and its expected duration and use its best efforts to mitigate its effects and perform hereunder.
20.1 Termination With or Without Cause: Either Party may terminate this Agreement with or without cause upon thirty (30) days’ advance written notice to the other Party.
20.2 Effect of Termination: Upon termination of this Agreement for any reason:
20.2.1 Return of VENDOR Products Upon Termination: VENDOR will repurchase from Distributor any Products then in Distributor’s inventory at a price equal to the price paid by Distributor less any credits for such Products, excluding applicable custom duties, taxes and freight charges. All Products to be repurchased must be new, unused, standard Products in original, unopened packaging and shipping containers. Distributor will be responsible for all freight charges related to the return of such repurchased Products. VENDOR will provide an RMA to Distributor within 30 days of the termination date. Distributor agrees to return all products to VENDOR within 30 days of the RMA being issued. VENDOR shall issue a check to the Distributor for the balance of the distributor’s account within 60 days of receiving distributor’s inventory.
20.2.2 Payment of Invoices by Distributor: Distributor will pay all outstanding invoices for Products within thirty (30) days of the effective termination date of this Agreement.
20.2.3 Outstanding Orders: All orders from Distributor or portions thereof remaining unshipped as of the effective date of termination may be cancelled, at VENDOR’s option.
20.2.4 Trademarks: Distributor shall immediately cease all use of Trademarks as of the effective date of termination and cease all representations that it is a distributor of VENDOR.
20.3 Surviving Terms: The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the Parties shall so survive the completion of performance and termination of this Agreement, including, without limitation, provision for indemnification and the making of any and all payments due hereunder.
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21.1 Assignment: Neither Party shall delegate any duties, nor assign any rights or claims under this Agreement without the prior written consent of the other Party, and any such attempted delegation or assignment shall be void; provided, however, either Party may assign this Agreement (inclusive of its rights, obligations and duties hereunder) through a merger or consolidation or in connection with any sale of substantially all of its business. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
21.2 No Waiver: A failure by either Party to exercise, or delay in exercising, any right or power conferred upon it by this Agreement shall not operate as a waiver of any such right or power.
21.3 Severability: This Agreement is divisible, and any provisions herein held to be in violation of any applicable treaties, statutes, or regulations of any governmental agency having jurisdiction shall affect only that portion held to be invalid or inoperative, and the remaining portions of this Agreement shall remain in full force and effect.
21.4 Dispute Resolution: In the event of any disagreement regarding performance under or interpretation of this Agreement, prior to the commencement of any formal proceedings, the Parties shall continue performance as set forth in this Agreement and shall attempt in good faith to reach a negotiated resolution by designating an officer or authorized representative of each Party to resolve the dispute.
21.5 Arbitration: Any claim or controversy arising out of or relating to this Agreement, or the breach thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be resolved by final and binding arbitration to be conducted in “VENDOR’s County”, “STATE”, by a panel of three (3) arbitrators in accordance with and subject to the Commercial Arbitration rules of the American Arbitration Association (the “AAA”) then in effect. The arbitrators shall have no power or authority to add or detract from the agreement of the Parties or to award punitive, exemplary, consequential, special, indirect or incidental damages. Judgment upon the award rendered may be entered and enforced in any court of competent jurisdiction. Notwithstanding the foregoing, Distributor acknowledges and agrees that its compliance with its obligations under Sections 3 and 16 hereto are necessary to protect the business, goodwill and proprietary interests of VENDOR, and that Distributor’s breach of any such obligations may give rise to irreparable injury to VENDOR that cannot be adequately compensated with monetary damages. Distributor agrees that VENDOR shall be entitled to seek and obtain injunctive relief against the breach or threatened breach of such provisions and/or specific enforcement of such provisions, without posting a bond, in addition to any other legal or equitable remedies that may be available. VENDOR may seek and obtain injunctive relief in the jurisdiction of its choice.
21.6 Entire Agreement: This Agreement and the accompanying exhibits set forth the entire agreement and understanding between VENDOR and Distributor as to the subject matter hereof and supersedes any and all prior discussions, agreements, and understandings of every kind and nature. No modification, amendment, rescission, waiver, or other change in these terms and conditions shall be binding upon either Party unless agreed in writing by authorized representatives of each Party.
21.7 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of “STATE” without giving effect to principals of conflicts of laws, and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
21.8 Headings: The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
21.9 Rule of Construction: The Parties have been represented by counsel in the negotiation and drafting of this Agreement, therefore, no rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement.
21.10 Cooperation: The Parties agree to cooperate with each other and to execute any and all further and necessary documents as may be reasonably requested by any Party hereto in order to implement and carry out the purpose and intent of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date agreed.