| Distributors Terms and Conditions |
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WHISPERIDE STANDARD TERMS AND CONDITIONS FOR DISTRIBUTORS Pricing, Orders and Shipment Distributor shall pay WR for Products ordered on a 2/10 net 30 days basis from date of invoice which invoice date shall be on or after the date of shipment. WR reserves the right to terminate or modify any terms for any credit it may extend to Distributor. All rights of Distributor are expressly made conditional upon timely payment, without right of set off, for all Products ordered by Distributor. [Although WR may publish suggested retail prices and/or resale price lists, Distributor is free to establish its own resale prices.] WR may, in its discretion, offer to Distributor discounts or incentives from time to time. If offered, such discounts and incentives will not apply if Distributor is not fully current with its payment obligations. Within five (5) business days after receipt of Distributor’s written Purchase Order, WR shall either accept, or reject for good cause or reason such Purchase Order. WR shall have no liability to Distributor or its customers on account of its inability to accept any Purchase Order or all of the conditions thereof. WR shall evidence its acceptance of Purchase Orders by notifying Distributor in writing and indicate the estimated shipment date(s). WR shall use commercially reasonable efforts to deliver Products at the time requested in the Purchase Order but shall not be liable for any inability or failure to deliver Products on schedule. In the event of any delay in delivery, WR shall promptly advise Distributor of a revised shipping schedule. Products will be shipped by WR to Distributor "F.O.B. WR’s Shipping Location". Title to Products supplied by WR to Distributor shall pass to Distributor upon delivery of such Product by WR to agent, carrier or designated representative, at WR’s shipping point and as between the Parties, the risk or loss of or damages to such Products subsequent to delivery to the agent, carrier or designated representative shall fall upon Distributor. Distributor shall pay all transportation costs and loss or damage insurance costs arising in connection with the delivery of Products from the shipping point to the destination requested by Distributor. Shipments will be made based upon Distributor’s routing instructions on Distributor’s Purchase Order. In the absence of specific routing and shipping instructions WR will ship Products via the method specified by Distributor, or if not specifically specified, via the best and most cost effective way, in WR’s judgment, with freight and insurance paid by Distributor. WR will, with mutual agreement, drop ship Product to Distributors customers. In the absence of special instructions noted on the Purchase Order and accepted by WR, all packing materials and methods shall be selected by WR and shall conform to standard commercial practices for shipment of its Products. Certain Additional Undertakings of Distributor Distributor agrees to (i) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of WR, (ii) avoid deception, misleading or unethical practices that are, or might be, detrimental to WR or its Products, (iii) not publish or employ or cooperate in the publication or utilization of any misleading or deceptive advertising material, and (iv) make no representation, warranty or guarantee to any Customer or to the trade regarding the specifications, features, benefits or capabilities of Products that differ or are inconsistent with the warranties or literature then currently distributed by WR. Distributor shall not deface, obscure or remove from any Product the packaging, warranty, product registration card, trademark or any labeling or other notice or item included therein or therewith, and Distributor shall not knowingly permit or encourage another to do so. Distributor shall comply at its own cost and expense with the laws of all relevant jurisdictions and will obtain all necessary licenses, permits and authorizations from the relevant governmental authorities to do business and sell Products. It is the sole responsibility of Distributor to obtain any such licenses, permits and authorization and to pay for any and all taxes, costs and expenses relating thereto. To the extent legally permissible, Distributor hereby knowingly and willingly waives any special rights which may accrue to it against WR under the laws of the jurisdictions in which Distributor does business. Distributor acknowledges that the rights specifically set forth in this Agreement constitute Distributor's full compensation for its services hereunder. Certain Additional Undertakings of WhispeRide WRwill provide Distributor with specimens of English language marketing and technical material and literature concerning the Products (“Promotional Materials”). Distributor may publish such Promotional Materials and shall not directly or indirectly publish or use any Promotional Materials not approved of in advance by WR. The copyright in any Promotional Materials prepared or used by Distributor shall be deemed to be owned by WR and Distributor shall take all necessary steps to assist WR to document and/or register its copyrights and other intellectual property rights in such Promotional Materials. WRshall use its best efforts to promptly respond to all inquiries from Distributor concerning matters pertaining to this Agreement, Product information, Purchase Order status and any other inquiries that may be necessary to Distributor’s business. This does not require WR to disclose any confidential information. WRwill, where appropriate and at its discretion, indicate in its advertising or sales material that Distributor is an authorized distributor of the Products. Product Quality, Warranty and Returns Distributor will facilitate the provision of customer support by WR to Authorized Dealers and support in assessing customer requirements for the Products, including modifications and improvements thereto in terms of quality, design, functional capability and other features. Distributor shall inform WR promptly upon becoming aware of any defect in any Product or of any problem, claim or threatened claim regarding or arising out of any Product. Distributor shall use its best reasonable efforts to assist WR in completing any recall or repair of Products undertaken by WR. WR shall reimburse Distributor for approved costs reasonably incurred in providing assistance requested by WR. The then-current warranties and guarantees of WR expressly stated in the printed warranty card provided by WR with the Products, are the only warranties or guaranties made by WR relating to the Products. Such warranties and guaranties are subject to any and all accompanying disclaimers, limitations and other terms and conditions. Distributor shall pass on to its Customers such warranties and guaranties, limitations and other terms and conditions. The warranties and guarantees are subject to change from time to time by WR by notice to Distributor. Distributor shall properly and promptly honor any warranty or guarantee of WR for the Products and any returns for a refund shall be repackaged in accordance with WR’s instructions for resale or, if defective, shall be returned to WR. If a Product has a material defect Distributor shall notify WR of the Product defect and upon WR’s issuing a return merchandise authorization ("RMA") number confirmed in writing, Distributor shall return such defective Product to WR within forty-five (45) days. If the defect is confirmed WR will pay all freight and other expenses involved in returning the defective Product and full credit will be issued to Distributor. All Product returns should be complete (box(es), documentation, cards, cables, etc.). Returns without a RMA number will be rejected by WR and immediately returned, freight collect. Distributor will pack the items being returned in the original packing carton or equivalent. Damage in transit is not WR’s responsibility. WR’S SOLE OBLIGATION UNDER THE WARRANTIES SHALL BE TO FURNISH PARTS AND LABOR FOR THE REPAIR OF OR MAY REPLACE PRODUCTS FOUND TO BE DEFECTIVE IN MATERIAL OR WORKMANSHIP DURING THE WARRANTY PERIOD OR WR MAY, IN ITS DISCRETION, ISSUE A CREDIT FOR ANY SUCH DEFECTIVE PRODUCTS IN SUCH AMOUNT AS IT DEEMS REASONABLE. WR MAKES NO WARRANTY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR EXPRESSLY STATED IN THE WARRANTY CARD PROVIDED BY WR WITH THE PRODUCT. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE DISCLAIMED AND EXCLUDED. THIS AGREEMENT DEFINES AND PROVIDES THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR AND THE SOLE AND EXCLUSIVE LIABILITY OF WR, REGARDING ANY DEFECT OR INADEQUACY IN OR OF THE PRODUCTS. IN NO EVENT SHALL WR’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS (REGARDLESS OF THE FORM OF ACTION, WHETHER BY CONTRACT, WARRANTY, TORT, MALPRACTICE, FRAUD AND/OR OTHERWISE) EXCEED THE LESSER OF $__________ OR THE AMOUNT ACTUALLY PAID BY DISTRIBUTOR TO WR DURING THE MOST RECENT THREE MONTH PERIOD UNDER THIS AGREEMENT, WHICHEVER IS THE GREATER AMOUNT. Indemnity Each of WR and Distributor shall be responsible for, and shall defend and indemnify the other against and hold the other harmless from and against, any and all claims, damages, suits, judgments and expenses (including reasonable legal counsel fees and costs) arising out of any misrepresentation or wrongful conduct of it or its employees or agents. The party seeking indemnification agrees to immediately notify the indemnifying party of any such claim and provide reasonable assistance, at the indemnifying party’s expense, in the defense or settlement thereof. Distributor agrees that in the course of promoting, advertising and selling the Products and obtaining Authorized Dealers, Distributor shall not make any representation or claim regarding WR or the Products other than those contained in the Product packaging or in the standard Product descriptions and advertising literature for the Products furnished to Distributor by WR, or as otherwise specifically approved in writing by WR for such usage and disclosure. If Distributor makes any representation or claim regarding any Product other than those permitted above, then Distributor shall be deemed to have materially and substantially breached this Agreement, and in addition to WR other rights, remedies and possible relief, WR shall have no responsibility, liability, obligation or expense relating to or resulting from such representation or claim by Distributor and Distributor shall indemnify WR against any such responsibility, liability, obligation or expense. The immediately preceding sentence shall not excuse WR from any liability attributable to any fault of WR. If and to the extent WR is at fault, each Party shall be responsible for its respective share of damages and costs. Confidentiality All non public business and technical information, whether written or oral (including information in electronic form), of each Party, including but not limited to, with respect to WR, its technical know-how, instructions and procedures relating to the formulation, production or packaging of Product, as well as all financial information and Product development plans, and, with respect to Distributor, Distributor’s sales, marketing and promotional plans and programs relating to the Product, all financial information and technical know-how and production, storage and handling methods and procedures, which either Party discloses to the other Party shall be received and retained by the receiving Party and its employees, agents and representatives as strictly confidential and, except as provided for herein, may not be disclosed to any third party. The receiving Party shall not disclose any such information to any person within its organization not having a need to know the same and shall only use such information in order to fulfill its obligations hereunder. The receiving Party shall not have any obligation of confidentiality with respect to information which: • was in the public domain at the time of receipt from the disclosing Party, or which thereafter comes into the public domain without breach of an obligation assumed hereunder; or • was known and can be shown to have been known by the receiving Party at the time of receipt from the disclosing Party and which was not previously acquired directly or indirectly from the disclosing Party on a confidential basis; or • becomes known to the receiving Party on a non-confidential basis through a third party whose own acquisition and disclosure of the information were not in breach of any contractual or fiduciary obligation to the other Party; or • is approved for disclosure by the disclosing Party in writing; or • is required to be disclosed by court or agency order, or by law or governmental regulation; provided that the receiving Party first informs the disclosing Party, in writing, of the requirement and cooperates with the disclosing Party in any attempt by the disclosing Party to challenge the requirement and/or to obtain a protective order. All originals and copies of confidential or proprietary information shall be and remain the exclusive property of the disclosing Party and shall be returned to the disclosing Party upon demand or, if no demand is made, upon the cancellation or termination of this Agreement. Distributor shall not manufacture or have manufactured any devices, components, or assemblies or create or have created any product utilizing any of WR’S confidential information. The Parties acknowledge that the terms and conditions contained in this Agreement are deemed to be Confidential. Press releases and other forms of publicity or advertising of any nature which pertain to this Agreement or which mention the name of the other Party shall not be published without the prior written consent of such Party, except as otherwise required by law. Default and Termination If either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give notice to the defaulting Party that if the default is not cured within thirty (30) days, the Agreement will be terminated. If the non-defaulting Party gives such notice, and if the default is not cured during said cure period, then this Agreement shall automatically terminate at the end of the said cure period. This Agreement shall terminate, without notice, upon (i) the insolvency of a Party, (ii) the filing by either Party of a voluntary petition in bankruptcy, (iii) the involuntary commencement against any Party of any proceedings under any law relating to insolvency or bankruptcy which is not vacated within a period of thirty (30) days, (iv) adjudication of either Party as a bankrupt or insolvent pursuant to an involuntary petition, (v) the appointment by any competent court having jurisdiction of a temporary or permanent receiver, trustee or other officer having similar powers for a Party or a Party’s business who is not removed within thirty (30) days, (vi) any levy under attachment, garnishment, execution or any other similar process which is not within thirty (30) days vacated or removed by payment or bonding, or (vii) any assignment by a Party for the benefit of its creditors. Each Party shall immediately notify the other Party upon occurrence of any of the above listed events. Failure to do so shall constitute a material breach of this Agreement. Upon notice of termination of this Agreement, WR shall continue to fulfill all Purchase Orders which were accepted by WR prior to the date of termination unless termination is based on Distributor’s default. All sums owed to WR by Distributor shall become immediately due and payable upon the effective date of termination. All data, photographs, samples, literature and sales aids of every kind used by Distributor shall remain the property of WR. Within thirty (30) days after the termination of this Agreement, Distributor shall prepare for shipment and ship, as WR may direct, all such items in its possession, at WR’s expense. Distributor shall not make or retain any copies of any confidential items or information which may have been provided to or ascertained by it. Effective upon termination of this Agreement, Distributor shall cease all use and display of WR’s Trademarks. If WR terminates this Agreement up to one hundred percent (100%) of the Products in Distributor’s inventory at the time of notice of termination may be repurchased by WR at WR’s option. If WR does not repurchase Distributor’s inventory, Distributor shall have the right to continue distribution of such inventory of Products until sold off. Neither the expiration nor the termination of this Agreement shall terminate or modify any obligation of a Party hereunder (specifically including any payment obligation) which arose prior to the effective date of such expiration or termination and the Sections captioned Certain Additional Undertakings of Distributor, Warranty and Returns, Indemnity, Confidentiality, Trademarks/Intellectual Property (first and last two paragraphs only), Indemnification and Miscellaneous shall survive the expiration or termination of this Agreement. Independent Contractor Distributor shall act as an independent contractor in the performance of this Agreement, and nothing contained in this Agreement shall be construed to (i) give any Party the power to direct and control the day-to-day activities of the other Party, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow any Party to create or assume any obligation on behalf of the other Parties for any purposes whatsoever. All financial obligations associated with any Party’s business are the sole responsibility of such Party. All sales and other agreements between Distributor and its Customers are Distributor’s exclusive responsibility and WR shall have no obligations or liability with respect thereto. Trademarks/Intellectual Property Distributor acknowledges and agrees that this Agreement does not convey to Distributor or its Customers any ownership in or to any patents, trademarks, inventions, copyrights, trade secrets or other intellectual property relating to the Products, and that all of the foregoing are owned and held by WR. WR grants to Distributor a non-exclusive, nontransferable, royalty-free right to use in the Territory, WR’S logo and other trademarks and Product designations (including Product model numbers) found on the Products, to promote and sell the Products ("Trademarks"). Distributor shall use such Trademarks in accordance with WR’s then-current policies on such use as communicated to Distributor from time to time. Distributor acknowledges that WR is the owner of the Trademarks and Distributor agrees that it will do nothing inconsistent with such ownership, and that all use of the Trademarks by Distributor shall inure to the benefit of WR. Distributor acknowledges that the Trademarks are valid under applicable law. Distributor shall not register or attempt to register the Trademarks in any jurisdiction. Distributor hereby grants WR its limited general durable power of attorney to allow WR to carry out the purpose and intention of this paragraph. Distributor shall cooperate with and provide reasonable information, assistance and evidentiary specimens to WR to assist WR in registering its Trademarks. Distributor agrees that it shall not adopt a design, trademark, trade name or product designation confusingly similar to any trademark, name, or Product designation of WR. If in the event it is found that Distributor has used or is using or has previously registered WR’s name or trademark prior to or after entering into this Agreement, Distributor shall irrevocably and without limitation or consideration assign, transfer and convey all rights, privileges, registrations and titles, if any, claimed by it to WR. Distributor will not oppose, contest or challenge in any manner WR’s ownership and use of its name and Trademarks. Distributor agrees that during the term of this Agreement and for five (5) years immediately thereafter, Distributor shall not, directly or indirectly, adopt or use any product design or designation (including any model number), or assist others in marketing any product design or designation (including any model number), which is confusingly similar to any product design or designation (including any model number) used by WR during the term of this Agreement and for the five (5) year period immediately thereafter. Any advertising or promotional materials for the Products, including without limitation, sales brochures, catalogues or other promotional literature prepared or produced by or for Distributor which contain one or more of WR’s trademarks used either separately or in combination with the trademarks of any authorized third party shall be submitted to WR for its review and approval (which approval shall not be unreasonably withheld or delayed) prior to use. Distributor will pay for all costs of advertising that Distributor initiates. Representations and Warranties WR represents and warrants to Distributor that: (i) it has the legal right, authority and power to enter into this Agreement and to consummate the transactions provided for herein. This Agreement and all other documents and instruments and documents referenced herein executed and delivered by WR constitute legal, valid binding and enforceable obligations of WR, and (ii) the execution, delivery and performance by WR of its obligations under this Agreement will not conflict with or result in a breach of any law, governmental rule, regulation judgment, decree or order by which WR is bound, or of any of the provisions of any contract or obligation to which WR is a party or by which WR is bound, or of WR’s certificate of incorporation or bylaws. Distributor represents and warrants to WR that: (i) it has the legal right, authority and power to enter into this Agreement and to consummate the transaction provided for herein. This Agreement and all other documents and instruments and documents referenced herein executed and delivered by Distributor constitute legal, valid, binding and enforceable obligations of Distributor; and (ii) the execution, delivery and performance by Distributor of its obligations under this Agreement will not conflict with or result in a breach of any law, governmental rule, regulations, judgment, decree or order by which Distributor is bound, or of any of the provisions of any contract or obligation to which Distributor is a party or by which Distributor is bound, or of Distributor’s certificate of incorporation or bylaws. Force Majeure Either Party shall be excused from performance under this Agreement while and to the extent that such performance is prevented by an Act of God, strikes and other labor disturbances, war, civil strife, governmental restrictions, embargo, fire, flood, accident or any other casualty beyond the reasonable control of the Party charged with performance. In the event that either Party shall be unable to perform any of its obligations as undertaken, it shall promptly advise the other Party of its inability to perform, and exercise its commercially reasonable best efforts to minimize the impact to the other Party of such inability to perform. Miscellaneous The Parties recognize and acknowledge that each Party would not have an adequate remedy at law for the breach by the other Party of any of the covenants contained in Sections 12 and 8 hereof, and each Party therefore agrees that in the event of such breach by the other Party, the non-breaching Party may, in addition to the other remedies which may be available to it, enjoin the breaching Party from the breach of any of the terms of such Sections. Neither Party shall assign this Agreement or any part of its rights or obligations hereunder without the prior written consent of the other Party; provided, however, that such consent shall not be unreasonably withheld in the case of assignments to financially responsible affiliates or in the case of the sale of all or a material portion of the business to which this Agreement relates. In the event written consent is obtained, the holder or holders through assignment, transfer or conveyance of this Agreement or any interest herein shall be bound by all of the terms and conditions hereof. Either Party may waive compliance by the other with any of the covenants herein, but no waiver shall be binding unless executed in writing by that Party. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver, unless expressly stated otherwise. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be deemed to have been sufficiently given only if such notice is in writing and is delivered by facsimile (with electronic receipt), or by overnight courier service (such as DHL) against receipt, or by registered or certified U.S. mail, return receipt requested, addressed as shown in the heading paragraph above. Notice given by facsimile shall be deemed delivered only if received prior to 5 p.m. on a business day. Notice given by overnight courier shall be deemed delivered on the date of the receipt. Notice by U.S. Mail shall be deemed delivered 3 days after it is deposited in the mail, with postage prepaid. This Agreement (and the agreements and Exhibits referred to herein) constitute the entire agreement between the Parties with regard to the subject matter hereof, and may not be amended or modified unless in writing signed by both Distributor and WR. The preprinted or form provisions contained in either party’s purchase order, acknowledgement or acceptance forms shall be deemed superseded in their entirety by the terms contained herein and shall be of no force or effect. If any provision of this Agreement, or the application of such provision to any person or circumstances, is held invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby. Section titles and captions contained in this Agreement are inserted as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent or any of its provisions. This Agreement shall in all respects be construed, interpreted and enforced in accordance with and governed by the laws of the State of Utah, without giving effect to the choice of law rules thereof and state and federal courts located in Salt Lake City shall be the exclusive forum for resolution of any dispute as to the jurisdiction of which courts the parties hereby consent. Should any litigation be commenced between the parties hereto concerning any provision of this Agreement or the rights or duties of any Party in relation thereto, the Party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its costs and attorney’s fees in such litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose. |
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Corporate Sales Distributors Terms and Conditions
Corporate Sales Distributors Terms and Conditions