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DISTRIBUTION AGREEMENT
THIS AGREEMENT is made the 28th day of March, 1995.
BETWEEN: UNICOMM SIGNAL INC.(formerly ttc TRUCK TECH CORP.) a company duly
incorporated in the Province of British Columbia, Canada and having it's place
of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇. V7A-4V5
(hereinafter called the "Manufacturer")
OF THE FIRST PART
AND: HAULPAK DIVISION OF KOMATSU DRESSER COMPANY, a partnership under the
laws of the State of Delaware, USA, with a place of business at ▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, in the United States of America (hereinafter
called the "Distributor")
OF THE SECOND PART
WHEREAS:
1. The Manufacturer manufactures a remote tire pressure sensor device
(known as the TIRE MAINTENANCE SYSTEM and hereinafter called the
"Product") which has applications in a number of industries, including
but not limited to, the worldwide Customer Market(hereinafter called the
"Territory");
2. The Product shall be made up of the components as described in
Schedule "A";
3. The Distributor is engaged in the business of manufacturing,
servicing, and selling certain products in the Territory;
4. The Manufacturer desires to appoint the Distributor as a distributor
of the Product in the Territory; and
5. The Distributor desires to purchase and resell the Product to the
Customer Market.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the
mutual premises and the mutual covenants and agreements contained herein, and in
consideration of the sum of ONE ($1.00) CANADIAN DOLLAR now paid by the
Distributor to the Manufacturer (the receipt and sufficiency of which is hereby
acknowledged), the Parties covenant and agree with,each other as follows:
EXHIBIT 10.7
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1. DEFINITIONS & INTERPRETATION
In this Agreement, unless the context requires otherwise:
(a) "Confidential Information" shall mean that which as a
consequence of negotiating and entering into this Agreement or
dealing with the Manufacturer, the Distributor and certain of
its employees and agents have seen, been exposed to, or
otherwise come in contact with, or will see, be exposed to, or
otherwise come in contact with material and information relating
to the Manufacturer's Intellectual Property, the business of the
Manufacturer, and other activities of the Manufacturer that is
confidential (herein all such material and information is
collectively called "Confidential Information"). For the
purposes of this Agreement, Confidential Information includes,
all information, documentation, knowledge, or data of an
intellectual, technical, scientific, commercial, or industrial
nature relating to the business of the Manufacturer or the
Manufacturer's Intellectual Property, including, without
limitation, information of financial, cost, pricing, or
marketing nature, that is not generally known to the public or
to other Persons who are not bound by obligations of
confidentiality, and either derives economic value, actual or
potential, from not being generally known, or in respect of
which the Manufacturer otherwise has a legitimate interest in
maintaining confidentiality;
Notwithstanding the foregoing, "Confidential information" shall
not include information, documentation, knowledge or data that
(i) was in the public domain at the time it was disclosed or
became part of the public domain after disclosure, including,
without imitation, disclosure in a US or foreign patent or
printed publication, or through unrestricted sale of product
embodying the same; or (ii) was known to Distributor at the time
of its disclosure or becomes known to Distributor without breach
of this confidentiality provision; or (iii) is independently
developed by Distributor; or (iv) is disclosed by Manufacturer
to a third party without restrictions on such third party's
rights to disclose or use the same; or (v) is disclosed pursuant
to the judicial order, a requirement of a governmental agency or
by operation of law; or (vi) is approved for release upon
Manufacturer's prior written consent;
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or (vii) is disclosed by Manufacturer to Distributor after
notification by Distributor to Manufacturer that will not accept
any further Confidential information in confidence; or (viii) is
not labeled conspicuously by Manufacturer as being confidential.
(b) "Customer Market" shall mean the off-road surface mining and
off-road construction machinery markets served by Distributor or
its distribution organization;
(c) "Manufacturer's Intellectual Property" shall mean the
proprietary rights and interests in the nature of patents,
copyrights, trademarks, industrial designs, goodwill and the
like that are owned by or licensed to the Manufacturer;
(d) "Parties" shall mean the Distributor and the Manufacturer;
(e) "Person" shall mean the definition in accordance with
Section 29 of the Interpretation Act (British Columbia) and any
incidental definitions thereto;
(f) "Product" shall mean the Product known as the TIRE
MAINTENANCE SYSTEM and will be comprised of components being
more particularly described in Schedule "A" hereto;
(g) "Relevant Guidelines" shall mean any act, ordinance, by-law,
regulation, or requirement enacted or imposed by any competent
government or semi-government authority in any country within
the Territory which directly relates to or regulates the use,
marketing, distribution, sale, or manufacture of the Product in
any way;
(h) "Term of this Agreement" shall mean the period described in
Section 3 hereof;
(i) "Territory" shall mean the worldwide Customer Market except
any countries specified in Schedule "C" hereto;
(j) A reference to a party hereto shall include that party and
its permitted assignees, licensees, contractors, and agents;
(k) Words importing the singular number shall include the plural
number and vice versa;
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(l) Words importing any gender shall include the other genders;
(m) The headings in this Agreement are for ease of reference
only and shall not affect the construction or meaning of this
Agreement or any provision hereof.
2. APPOINTMENT, TERRITORY, DIRECT SALES & VALUE
(a) Subject to Section 2(b), the Manufacturer hereby appoints
the Distributor as a distributor of the Product in the Territory
with the authority to:
(i) purchase, resell, and service the Product and
replacement parts in its own name and for its own
account; and
(ii) appoint or authorize its own distributors to
purchase, resell, and service the Product and
replacement parts.
(b) During the Term of this Agreement, the Manufacturer shall
not grant exclusivity to other distributors for the purpose of
selling the Product in the Territory.
(c) The Distributor accepts the appointment as a distributor and
agrees to employ it's reasonable best efforts with respect
thereto:
(i) to initially promote and develop the sale of the
Product to owners of off-highway construction and mining
vehicles in the Territory; and
(ii) to subsequently promote and exploit the sale of the
Product in connection with the sale of the Distributor's
off-highway mining and construction trucks and for
application to other mining or construction machinery
products in the Territory provided that with respect to
both such uses, the Distributor determines that such
applications are economically justified.
(d) During the Term of this Agreement and any renewal, the
Distributor covenants and agrees that it shall:
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(i) carry on its business in a first class manner and
maintain such quality standards in its handling
procedures as it may from time to time establish;
(ii) use its best efforts to meet sales objectives and
implement sales strategies that are agreed by the
Distributor and the Manufacturer;
(iii) maintain good relations with all customers and
potential customers of the Manufacturer in the Territory
and use its best efforts to detect and correct customer
dissatisfaction; and
(iv) obtain and maintain all licenses, permits, and
insurance reasonably necessary to conduct its business.
3. TERM
(a) This Agreement shall be for a term of four (4) years from
the date hereof unless terminated within that period:
(i) by the Parties by mutual agreement;
(ii) by either party with immediate effect and without
prior recourse to any judicial or other authority if the
other party breaches any material obligation imposed
upon it by this Agreement and does not rectify such
breach within sixty (60) days after receipt of notice
from the non-breaching party of such default and of the
non-breaching party's intention to terminate this
Agreement in accordance with this paragraph; and
(iii) by either party after receipt of notice, with
immediate effect, in the event that the other becomes
insolvent, has a manager or receiver appointed by
creditors or goes into liquidation (other than voluntary
liquidation for purposes of internal reorganization), is
placed under the control of a committee of creditors or
ceases to function as a going concern.
(b) After this Agreement is terminated if the Distributor orders
the Product and the
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Manufacturer accepts orders from the Distributor or refers
inquiries to the Distributor or if either of the Parties engage
in other similar acts, such acts shall not renew this Agreement
or waive termination. Nevertheless, all such transactions shall
be governed by the terms of this Agreement to the extent such
terms are applicable.
(c) In the event of termination pursuant to paragraph (a) of
this Section, all orders accepted by the Manufacturer prior to
the date of termination will be completed in accordance with the
normal manufacturing schedule and shipped and invoiced to the
Distributor in accordance with this Agreement and the
Manufacturer shall assume, at it's discretion warranty
obligations to end users, or customers, which are outstanding as
of the termination date or continue to supply Product or
portions thereof necessary for the Distributor to meet such
obligations.
(d) The termination of this Agreement shall be without prejudice
to either party's rights or remedies to recover any moneys due
hereunder or to any other rights or remedies arising pursuant to
the terms of this Agreement.
4. RENEWAL
(a) The Manufacturer may, subject to the Distributor having
complied in all respects with its obligations under this
Agreement and any amendments to this Agreement, renew this
Agreement for one further term of three (3) years immediately
following the Term of this Agreement except for this paragraph
and Schedules B and D which must be mutually agreed on at the
time of renewal.
(b) Any notice of intention by the Distributor not to renew this
Agreement shall be given in accordance with Section 15 hereof so
as to be received by the Manufacturer no later than six (6)
months prior to the date of expiry of any relevant term.
5. SUPPLY OF PRODUCT
(a) Distributor shall purchase and Manufacturer shall supply the
Product at the price set out on Schedule B pursuant to
Distributor's
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Standard Conditions of Purchase, from time to time in force
("Standard Conditions"). Distributor's Standard Conditions in
force on the date hereof are set out in Schedule E attached
hereto and made a part hereof. The Standard Conditions shall,
except where they are in conflict with any express provisions of
this Agreement, govern the supply of the Products to the
Distributor to the exclusion of all other conditions of sale or
purchase.
(b) Distributor agrees, upon acceptance of this Agreement, to
issue to Manufacturer, a blanket purchase order against which
monthly releases containing a twelve month rolling forecast with
a three month firm commitment will be issued. The forecast
quantities and delivery schedule shall be determined by the
Distributor's standard ordering policy, from time to time in
force.
(c) All expenses incurred by each party in connection with the
implementation of this Agreement shall be paid by it without
reimbursement by the other party.
(d) During the Term of this Agreement, the Distributor shall
provide the Manufacturer with such reports and information
relating to Distributor's activities hereunder as Manufacturer
and Distributor shall from time to time agree.
(e) Manufacturer agrees to exculpate, indemnify and hold
harmless Distributor, its officers, directors, agents and
employees from and against any and all demands, claims,
liabilities, losses, suits, costs and expenses (including
attorneys' fees and other defense costs), and penalties which
arise, directly or indirectly out of this Agreement or the
Parties performance hereunder, including but not limited to:
(i) personal injury or death or property damage or
destruction arising out of alleged defects in material,
workmanship or design of the Product or work furnished
hereunder; and
(ii) personal injuries or death of Manufacturer's agents
or employees or subcontractor's personnel and damage to
or destruction of Manufacturer's or its subcontractor's
property.
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In the event that any action or proceeding based upon any of the matters
referred to above is brought against Distributor or its agents,
employees, officers or directors, Distributor shall promptly notify
Manufacturer and Manufacturer shall, if Distributor requests, resist and
defend such action or proceeding by reputable counsel retained at
Manufacturer's expense. In addition, Distributor may appear and be
represented by counsel of its own choosing at Distributor's expenses.
Manufacturer shall obtain and keep in force the insurance listed in
Schedule D attached hereto and made a part hereof. Manufacturer shall
furnish Distributor certificates of insurance for the insurance referred
to in Schedule D with Distributor endorsed as a named insured
thereunder, which insurance may not be decreased or canceled by
Manufacturer except on thirty (30) days prior written notice to
Distributor. The certificate of insurance shall not contain any form of
disclaimer of the insurance carrier's responsibility for a failure to
give notice.
6. SUPPLY PRICE AND DELIVERY
(a) The price payable by the Distributor to the Manufacturer for
the Product and the components thereof shall be as set forth in
Schedule B and may be adjusted on an annual basis to compensate
for increases in the Consumer Price Index as determined by
Statistics Canada.
(b) The Distributor shall be eligible for a 20% discount on the
prevailing price of the Product purchased from the Manufacturer
during the term of this Agreement; with the unit sales, of the
equivalent product sold directly into the Replacement Market of
the Territory by the Manufacturer, determining the unit quantity
of the purchased Product on which the aforementioned discount
shall be applied.
(c) All quantities of the Product supplied by the Manufacturer
to the Distributor pursuant to this Agreement shall be F.O.B.
factory. All risk in each quantity of Product supplied shall be
with the Distributor from the time it is placed F.O.B.
Vancouver. Notwithstanding any rule of law or equity to the
contrary, the property in each quantity of Product supplied
shall not pass to the Distributor and the sale of it shall not
be
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complete until such Product has been paid for in full.
The Distributor shall sign all instruments and do all acts that
the Manufacturer, acting reasonably, requires to effect,
perfect, register or record such retention of title and security
interest.
(d) The Distributor shall properly pay all taxes, levies,
tariffs, custom duties, brokerage fees, insurance premiums, and
other costs and levies charged, assessed or levied in connection
with the Product, the transport of the Product to the
Distributor, or the use of the Product by the Distributor.
(e) The Distributor shall inspect each delivery of the Product
within 120 days after delivery (the "Inspection Period"). The
Distributor shall be entitled to reject units of Product only if
the Product does not reasonably conform with the quality
warranted by the Manufacturer in Section 7(a). The Distributor
shall deliver written notice of rejection of any Product before
the expiration of the Inspection Period.
(f) Nothing in this Agreement shall be construed as restricting
the Distributor's freedom to set its own resale prices.
(g) The Distributor shall pay interest on all overdue amounts
owing from it to the Manufacturer hereunder at the rate of 12%
per annum calculated and compounded monthly from the date the
amounts became overdue.
(h) The Manufacturer or its designate shall give to the
Distributor weekly an invoice for purchases by the Distributor
and the Distributor shall pay all amounts owed by it to the
Manufacturer within 30 days after the date of such invoice.
(i) The Distributor shall not modify or tamper with the Product
except:
(i) as necessary to comply with local laws, which
compliance shall be the sole responsibility of the
Distributor; and
(ii) with the express permission of the
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Manufacturer.
(j) As between the Manufacturer and the Distributor, the
Distributor shall be solely responsible for paying all taxes,
charges, and contributions levied or otherwise required by
competent governmental authorities in respect of the Distributor
in connection with income earned as a consequence of this
Agreement or the relationship of the Parties to each other or to
the Manufacturer, including but not restricted to income taxes,
unemployment insurance premiums, pension, social security, and
worker's compensation contributions.
7. WARRANTY AND LIMITATION OF LIABILITY
(a) LIMITED WARRANTY. The Manufacturer hereby warrants
workmanship and materials of the Product sold hereunder to be
free from defects in material and/or workmanship under normal
use and service for a period of two (2) years from date of
manufacture by the Manufacturer or one (1) year from the date of
sale to the end user of the Product by the Distributor whichever
is less (the "Warranty Period"). The Manufacturer shall have the
right to determine whether to replace or repair all Product
under this limited warranty.
(b) EXEMPTED CASES. THE MANUFACTURER SHALL HAVE NO OBLIGATION
UNDER THIS SECTION TO REPAIR OR REPLACE THE PRODUCTS THAT ARE
FAULTY DUE TO:
(i) ERRORS IN DESIGN WHICH ARE SOLELY A RESULT OF
INFORMATION SUPPLIED TO THE MANUFACTURER BY THE
DISTRIBUTOR;
(ii) OPERATION OF THE PRODUCT BEYOND THE LIMITS
ESTABLISHED IN THE SPECIFICATIONS;
(iii) ADJUSTMENT ERRORS BY OPERATOR OR MAINTENANCE
PERSONNEL, INCORRECT OPERATION OF THE EQUIPMENT,
ALTERATION, MODIFICATION OR ADDITION TO THE EQUIPMENT
NOT AUTHORIZED BY THE MANUFACTURER, OR REPAIR OR USE OF
TOOLS OR TEST EQUIPMENT OTHER THAN THAT AUTHORIZED BY
THE MANUFACTURER PROVIDED MANUFACTURER HAS SUPPLIED
DISTRIBUTOR WITH ADEQUATE INSTALLATION, OPERATIONAL,
MAINTENANCE AND REPAIR INFORMATION FOR DISTRIBUTION TO
DISTRIBUTOR'S SUB-DISTRIBUTORS AND END-USERS
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OF DISTRIBUTOR'S EQUIPMENT;
(iv) SOLELY THE ACTS, OMISSIONS, OR NEGLIGENCE OF ANY
PARTY OTHER THAN THE MANUFACTURER, INCLUDING BUT NOT
RESTRICTED TO ACCIDENTS, DISASTERS, FIRES, FLOOD, WATER,
WIND, AND LIGHTNING;
(v) INSTALLATION ERROR (UNLESS THAT IS THE
RESPONSIBILITY OF THE MANUFACTURER) AFTER LOADING AT THE
F.O.B. POINT PROVIDED THAT MANUFACTURER HAS SUPPLIED
DISTRIBUTOR WITH ADEQUATE INSTALLATION, MAINTENANCE, AND
REPAIR INFORMATION FOR DISTRIBUTION TO DISTRIBUTOR'S
SUB-DISTRIBUTORS AND END-USERS OF DISTRIBUTOR'S
EQUIPMENT;
(vi) USE OF THE PRODUCT FOR OTHER THAN THE PURPOSE FOR
WHICH IT IS SUPPLIED;
(vii) OPERATION OF AN ASSOCIATED SYSTEM NOT SUPPLIED BY
THE MANUFACTURER;
(viii) FAILURE TO PROVIDE ROUTINE MAINTENANCE (UNLESS
SUCH TECHNICAL ASSISTANCE IS THE RESPONSIBILITY OF THE
MANUFACTURER); AND
(ix) NORMAL WEAR AND TEAR INVOLVING CONSUMABLE.
(c) SPECIFIC EXCLUSION OF OTHER WARRANTIES. EXCEPT AS TO TITLE
AND AS OTHERWISE SET OUT IN THIS AGREEMENT, THE WARRANTY SET OUT
IN SECTION 7(a) IS IN LIEU OF ALL OTHER WARRANTIES, AND THERE
ARE NOT OTHER WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY
KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW OR CUSTOM,
REGARDING THE PRODUCT OR ANY OTHER MATERIALS OR SERVICES TO BE
SUPPLIED HEREUNDER BY THE MANUFACTURER, INCLUDING, BUT NOT
LIMITED TO WARRANTIES, REPRESENTATIONS, AND GUARANTEES AS TO THE
MERCHANTABILITY, FITNESS FOR PURPOSE, DESIGN, CONDITION, OR
QUALITY OF PRODUCT AND SUCH OTHER MATERIALS AND SERVICES.
(d) SOLE REMEDY. IF THE PRODUCT SUPPLIED BY THE MANUFACTURER TO
THE DISTRIBUTOR IS DETERMINED BY THE DISTRIBUTOR TO BE DEFECTIVE
UNDER SECTION 7(a) DURING THE WARRANTY PERIOD, THEN THE
MANUFACTURER SHALL, AT ITS OPTION, EITHER REPAIR OR REPLACE THE
DEFECTIVE ITEM AT ITS OWN EXPENSE, PROVIDED THAT SUCH ITEM IS IN
FACT DEFECTIVE AND
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THAT IT IS RETURNED TO THE MANUFACTURER'S AUTHORIZED REPAIR
FACILITY INTACT WITHIN THE WARRANTY PERIOD WITH ALL
TRANSPORTATION, PACKING, AND APPLICABLE TAXES PREPAID BY THE
DISTRIBUTOR. THE MANUFACTURER SHALL USE ITS BEST EFFORTS TO
EFFECT SUCH REPAIRS AND REPLACEMENTS WITHIN 30 DAYS AFTER THE
ITEM IS RETURNED TO THE MANUFACTURER. THE MANUFACTURER SHALL
RETURN THE REPAIRED OR REPLACED ITEM, TRANSPORTATION AND PACKING
PREPAID. WHEN THE DISTRIBUTOR RETURNS PRODUCT THAT ARE NOT IN
FACT DEFECTIVE, THE MANUFACTURER SHALL BE ENTITLED TO CHARGE THE
DISTRIBUTOR A NOMINAL SERVICE FEE NOT EXCEEDING $10.00 PER ITEM.
(e) SEPARATE ENFORCEABILITY. PARAGRAPHS 7b, 7c, AND 7d, OF THIS
SECTION ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND SHALL
EACH BE INDIVIDUALLY ENFORCEABLE.
(f) The Manufacturer and the Distributor both hereby warrant
that they are sufficiently insured with respect to product
liability claims asserted by a third party.
8. MARKETING AND PRESENTATION OF THE PRODUCT
(a) The Manufacturer shall furnish to the Distributor such
information on the market for the Product in the Territory as
shall come to the attention of the Manufacturer from time to
time with a view to assisting the Distributor in sales of the
Product.
(b) The Distributor shall be responsible to the Manufacturer for
insuring that Product are properly repackaged and generally
comply with industry or the Distributor's standards.
(c) The Manufacturer warrants that information provided by it to
the Distributor on use and performance of the Product shall be
correct,
(d) The Distributor shall utilize its network of distributors in
the Territory in the sale of the Product and shall provide,
through its distributor network, appropriate after-sale service
for the Product.
(e) The Manufacturer and Distributor shall develop and make
available to each other:
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(i) product price and competitive information reasonably
requested by the other Party;
(ii) all standard advertising and promotional materials
that the Manufacturer makes available to other
distributors, of the Product pursuant to Paragraph 2(b);
and
(iii) mounting bracket designs required for new
installation configurations.
(f) During the Term of this Agreement, the Distributor covenants
and agrees that it shall provide copies of all material for
independent media advertising to the Manufacturer.
(g) The Manufacturer shall assist in the promotion of the
Product by providing marketing, technical or sales training
Personnel reasonably requested by the Distributor. There shall
be prior agreement as to who shall bear cost and expenses of
such Personnel.
(h) The Parties hereby agree that they do not have and shall not
acquire any rights to the trademarks or trade name of the other
and that neither party has any authority to use the trademarks
or trade names of the other in any manner whatsoever unless
authorized in writing by the other Party.
(i) The Distributor shall cooperate in obtaining all competitive
standard advertising and promotional materials that is available
from other distributors, purchasers or users of like products.
(j) The Distributor. hereby warrants and acknowledges that the
Manufacturer's Intellectual Property is the property of the
Manufacturer to the extent such intellectual property is listed
in Schedule A attached hereto and made a part hereof.
(k) The Distributor hereby agrees that it shall notify the
Manufacturer of any suspected infringement in the Territory by
any third parties of any of the Manufacturer's Intellectual
Property of which the Distributor becomes aware.
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(l) The Manufacturer and Distributor hereby agree to cooperate
on the development and manufacturing of special projects and
enhancement to the Product that are requested by the Customer
Market. The costs incurred for general improvements shall be
borne by Manufacturer. The costs incurred for customization of
the Product for particular customers in the Customer Market
shall be borne by Distributor. The costs incurred for any other
development of special projects or enhancements shall be
mutually agreed upon by the Parties prior to commencement.
(m) All improvements to the Product, regardless of the source,
including but not limited to the Distributor, the Distributor's
customers in the Customer Market special projects and
enhancement initiated by the Manufacturer, Distributor or the
Distributor's customers, are the property of both the
Manufacturer and the Distributor.
(n) The Distributor shall assist and cooperate with the
Manufacturer to set up mutually agreeable mine site locations
for continued product development field testing.
(o) During the Term of this Agreement and any renewal, the
Distributor covenants and agrees that it shall not:
(i) distribute products manufactured by other than the
Manufacturer which would compete with the Product;
(ii) misrepresent the Product or the policies of the
Manufacturer, whether by act or omission.
9. NO PARTNERSHIP/AGENCY
Except as otherwise expressly provided in this Agreement:
(i) the relationship of the Distributor to the
Manufacturer shall be that between independent
contracting Parties; and
(ii) (ii) nothing contained in this Agreement and no act
of the Parties in pursuance of this Agreement shall be
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construed as creating between the Distributor and the
Manufacturer the relationship of partnership, joint
venture, or agency;
(iii) neither the Distributor nor the Manufacturer shall
act or shall purport to be acting as the legal agent of
the other;
(iv) neither the Distributor nor the Manufacturer shall
enter or purport to enter into any Agreement on behalf
of the other or otherwise bind or purport to bind the
other or cause the other to incur liability in any
manner whatsoever; and
(v) all actions of the Distributor and Manufacturer
hereunder shall be entirely on and for their own behalf.
10. CONFIDENTIALITY
(a) As a consequence of this Agreement, the Manufacturer has
given and during the Term of this Agreement, shall continue to
give to the Distributor certain technical and commercial
information (namely, the Manufacturer's Confidential
Information) relating to the Product in order to assist the
Distributor in the development and commercial exploitation of
the Product, and the Distributor accordingly undertakes:
(i) to use the Manufacturer's Confidential Information
only for the purpose set forth in this Agreement and in
particular not to use the Manufacturer's Confidential
Information to develop any products other than the
Product without the Manufacturer's express written
authorization;
(ii) to use its best endeavor to keep confidential all
the Manufacturer's Confidential Information, except to
the extent disclosure is required to perform its
obligations under this Agreement;
(iii) to return to the Manufacturer on termination of
this Agreement all of the Manufacturer's Confidential
Information howsoever stored including information then
or therefore designated by the Manufacturer as
confidential and all copies thereof; and
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(iv) to ensure that its employees, servants,
contractors, and agents are aware of, and observe the
provisions of this Section during the Term of this
Agreement and thereafter.
(b) Without limiting the general restrictions on use contained
in the preceding Sections, the Distributor shall not copy the
Product or any of its components except as expressly permitted
or reverse engineer, decompile, disassemble, reconstruct,
decrypt, modify, update, enhance, supplement, translate or adapt
the Product and shall take all reasonable precautions so as not
to allow other parties to do so.
(c) Notwithstanding the undertakings set out in this section 10,
such obligations shall not extend to Confidential Information
that (i) was in the public domain at the time it was disclosed
or became part of the public domain after disclosure, including,
without limitation, disclosure in a US or foreign patent or
printed publication, or through unrestricted sale of product
embodying the same; or (ii) was known to Distributor at the time
of its disclosure or becomes known to Distributor without breach
of this confidentiality provision; or(iii) is independently
developed by Distributor; or (iv) is disclosed by Manufacturer
to a third party without restrictions on such third party's
rights to disclose or use the same; or (v) is disclosed pursuant
to the judicial order, a requirement of a governmental agency or
by operation of law; or (vi) is approved for release upon
Manufacturer's prior written consent; or (vii) is disclosed by
Manufacturer to Distributor after notification by Distributor to
Manufacturer that will not accept any further Confidential
Information in confidence; or (viii) is not labeled
conspicuously in the manner set out above.
11. EXCLUSIVITY
(a) Subject to the warranties, conditions and exceptions in this
Agreement, the Distributor has a right, on a nonexclusive basis,
to distribute, sell and market the Product in the Territory.
(b) In the event that the Manufacturer
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develops a new product specifically designed for the Customer
Market, the Distributor shall have the first right to accept or
reject a distribution agreement between it and the Manufacturer
for the new product.
12. TERMINATION
(a) In the event that this Agreement or any extension or renewal
hereof expires or is terminated for any reason:
(i) the Distributor shall take stock of the Product in
its possession and advise the Manufacturer of the number
of such Product and shall return any advertising
material received from the Manufacturer and
Manufacturer's Confidential Information then held by the
Distributor; and
(ii) the Manufacturer shall purchase from the
Distributor all Product, including parts and accessories
purchased by Distributor under this Agreement, then
unsold by Distributor, at a price which represents the
cost thereof to Distributor of purchase and delivery
into Distributor's warehouse or premises.
(b) If either party should default in the performance or
observance of any of it's obligations hereunder, then, in
addition to all other rights and remedies available to the
non-defaulting party, the non-defaulting party may suspend
performance and observance of any or all its obligations under
this Agreement, without liability, until the other party's
default is remedied, but this Paragraph shall not permit the
Distributor to suspend its obligation to make payments owing in
respect of the Product that has been accepted or deemed accepted
by the Distributor.
(c) Neither party shall be deemed to be in default for any delay
or failure to perform its obligations under this Agreement
resulting from acts of God, the elements, strikes, shortage of
parts, labor or transportation or any cause beyond the
reasonable control of such party.
13. ASSIGNMENT
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Neither Manufacturer nor Distributor shall assign, transfer, convey,
delegate or sub-contract this Agreement or any of the rights, duties or
obligations under this Agreement to a third party except as otherwise
set forth in this Agreement, without the prior written consent of the
other party, which consent shall not be unreasonably withheld, provided
however, Distributor may, without such consent, assign this Agreement to
a company division affiliated with Distributor.
14. AMENDMENTS AND APPLICABLE LAW
(a) No amendment, variation, or modification to this Agreement
or to any Schedule hereto shall be binding unless it is in
writing signed by both Parties and specifies the effective date
of the change.
(b) This Agreement constitutes the complete understanding
between the Parties and supersedes the Distribution Agreement
dated the 25th day of September 1991 and any prior communication
or agreement, whether written or oral.
(c) The failure by either party on one or more occasions to
exercise all of its rights under this Agreement shall not be
construed as a waiver of such right or rights.
(d) All of the terms of this Agreement shall be construed so as
to not infringe the provisions of any relevant guidelines or
law, but if any such stipulation does infringe any such
provision, the same shall be deemed to be void and severable. In
such event, invalid clauses shall be suitably amended to
maintain the economical intentions of the Parties hereto and all
other stipulations of this Agreement shall remain in full force
and effect unless the invalid stipulations cannot be replaced
and are of such essential importance for this Agreement that it
is reasonably to be assumed that this Agreement would not have
been concluded without the invalid clauses;
(e) This Agreement shall be construed and governed by the law of
the State of Illinois, USA.
15. NOTICES AND APPROVALS
(a) All notices, requests, consents and other documents
authorized or required to be given
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by or pursuant to this Agreement shall be given in writing and
either personally served or sent by pre-paid post, telex,
telegram, cable or facsimile to the address of the recipient set
out in this Agreement or such other address as one party may
notify the other party in writing;
(b) Notices and approvals given by the Manufacturer shall be
deemed to be duly given and authorized if they appear over the
signature of a Director or Manager of the Manufacturer or of any
other Person whom it has identified to the Distributor as
authorized to give notices and approvals on its behalf and sent
to the Distributor at its address for service of notices;
(c) Notices given by the Distributor shall be deemed to be duly
given and authorized if they appear over the signature of any
Director or Officer or Manager of the Distributor or other
Person whom it has identified to the Manufacturer as authorized
to give notices and approvals on its behalf and sent to the
Manufacturer at its address for service of notices;
(d) Notices, approvals and other communications hereunder shall
be deemed to have been received:
(i) if sent by telecommunication, on the date upon which
they were transmitted;
(ii) if delivered personally, or courier, at the time
and date upon which they arrived at the addressee's
address for service subject to the proof of delivery;
and
(iii) if by post or mail, three days subsequent to
posting subject to proof of mailing.
16. GENERAL
(a) The Parties agree to execute and deliver such further
instruments and assurances and do such further acts as may be
required to give effect to this Agreement.
(b) This Agreement supersedes all previous dealings,
understandings and expectations of the Parties and constitutes
the whole Agreement with respect to the transaction contemplated
hereby,
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and there are no representations, warranties, conditions, or
collateral agreements between the Parties with respect to such
transaction except as expressly set out herein. No amendment,
modification, supplement or other purported alteration of this
Agreement shall be binding on the Parties unless in writing
signed by them or on their behalf by their duly authorized
representatives.
(c) Subject to section 13 above, this Agreement shall be binding
upon and ensure to the benefit of the Parties hereto and their
respective lawful successors, heirs, executors, administrators
and permitted assigns, as the case may be.
(d) Time shall be of the essence of this Agreement and no waiver
by a party of any particular default or defect shall affect or
impair the rights of that party in respect of any subsequent
default or omission of the same or different kind, and where
such a waiver has occurred, time shall continue to be of the
essence without the necessity of specific reinstatement.
(e) All disputes, claims, controversies of any kind arising from
this Agreement (including the existence or continued existence
of this Agreement or the validity of this paragraph), which
cannot be settled amicably by the parties shall be submitted to
arbitration to the exclusion of any court. Such arbitration,
including the rendering of the award, shall take place in
Chicago, Illinois, USA in accordance with the rules of the
American Arbitration Association then in effect ("Rules"), which
shall administer the arbitration and act as appointing
authority. In the event of any conflict between the Rules and
this clause, the provisions of this clause shall govern. The
arbitration proceeding shall be conducted in English; therefore,
each arbitrator shall be fluent in the English language.
The arbitration court shall consist of three (3) arbitrators.
Each party shall select an arbitrator from a panel furnished by
the appointing authority. The two, in turn, shall choose the
third, presiding arbitrator, who need not be from the panel. If
the parties are unable to agree on any of the names proposed or
if the party appointed arbitrators are unable to agree
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upon the presiding arbitrator, the appointing authority shall
have the power to make the appointment from other members of the
panel.
The arbitrators shall interpret the contract in accordance with
the laws of the State of Illinois, USA
The award of the arbitrators shall be final and executory with
respect to all disputes, claims, or controversies arising under
this Agreement and submitted to arbitration pursuant to this
paragraph.
The costs of arbitration shall be decided by the arbitrators.
They shall likewise decide which party shall bear the same or if
all parties should share the same, then in what proportion.
The award of the arbitrator shall be enforceable by any court
having jurisdiction over the party against which the award has
been rendered, or where assets of the party against which the
award has been rendered can be located.
Each of the Parties hereby agrees to pay the amount of any
arbitrage award and/or of any costs of arbitration which the
arbitrators determine that it is required to pay within sixty
(60) days after the arbitrator's award has been notified to it.
All payments shall be made in US dollars.
The Parties agree that the provisions of this paragraph shall
continue in effect after the termination of this Agreement for
any reason whatsoever.
(f) The schedules, if any, referred to herein and attached
hereto shall constitute a part of this Agreement to the same
extent as if specifically included herein and are hereby
incorporated by reference.
(g) Unless otherwise stated herein, all amounts of money stated
herein are expressed in US dollars.
(h) This Agreement may be executed in any number of counterparts
with the same effect as if all Parties had signed the same
document. All counterparts shall be construed together and shall
constitute one and the same agreement. This
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Agreement may be executed by the Parties and transmitted by
facsimile transmission and if so executed and transmitted this
Agreement shall be for all purposes as effective as if the
Parties had delivered an executed original Agreement.
(i) Notwithstanding any provision to the contrary, Manufacturer
hereby agrees to indemnify Distributor and to hold it harmless
from any and all damages awarded against Distributor and all
reasonable expenses incurred by Distributor as a result of any
claim of trade secret, patent, copyright, or trademark
infringement asserted against Distributor by virtue of
Distributor's purchase or use of the Product as delivered by
Manufacturer. Manufacturer shall be given prompt notice of any
such claim and the right to control and direct the
investigation, preparation, defense and settlement of each such
claim and further provided Distributor shall fully cooperate
with Manufacturer in connection with the foregoing.
IN WITNESS WHEREOF the Parties hereto have hereunto set their hands on the day
and in the year first herein before written.
SIGNED, SEAL AND DELIVERED for )
and on behalf of: )
)
UNICOMM SIGNAL INC. by its )____________________________
duly authorized agents in the presence of:
)
)
)
_______________________________)
____________________________
SIGNED, SEALED, DELIVERED for )
and on behalf of: )
)
HAULPAK DIVISION OF KOMATSU )____________________________
DRESSER COMPANY by its )
duly authorized agents in the presence of:
)
)
_______________________________)
____________________________
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SCHEDULE A (REVISED MARCH 6, 1995)
PRODUCT DESCRIPTION
010.0400 - TIRE MAINTENANCE SYSTEM KIT
COMPRISING OF:
1 - 210.0012 MONITOR, W/EXP. MEMORY
1 - 210.0013 CABLE, POWER SUPPLY
6 - 200.0001 SENSOR, VALVE STEM MOUNT
6 - 263.0014 LITHIUM BATTERY
1 - 240.0015 ANTENNAE ROD & COIL
1 - 262.0013 CABLE, ANTENNA COAXIAL W/ANCHOR
1 - 264.0027 MOUNTING BRACKET, ANTENNA
2 - 265.0017 U-BOLT, ANT. MOUNT
1 - 210.0015 CABLE, PROGRAMMING
1 - 810.0002 HAULPAK APPLICATION DATA BOOK
ACCESSORIES:
010.0101 -SENSOR , W/BATTERY
010.0103 -FITTING, VALVE SUPPORT
010.0104 -LITHIUM BATTERY
010.0106 -CABLE, PROGRAMMING
010.0107 -ANTENNA KIT, CLAMP-ON
010.0109 -TMS DATA DOWNLOAD KIT
010.0150 -PROBE INSTALLATION KIT, MECH. DRIVE TRUCKS
010.0154 -SENSOR INSTALLATION KIT
010.0160 -PROBE INSTALLATION KIT, ELECTRIC DRIVE TRUCKS
010.0402 -TMS MONITOR KIT, W/ EXP. MEMORY
200.0008 -TEMPERATURE PROBE, 20" LEAD
200.0009 -TEMPERATURE PROBE, 40" LEAD
200.0010 -TEMPERATURE PROBE, 68" LEAD
SERVICE PARTS:
010.0110 -SEALING WASHERS, VALVE CORE HOUSING PACKAGE OF 20
210.0013 -CABLE, POWER SUPPLY
210.0018 -ANCHOR ASSEMBLY, SENSOR
210.0019 -HOSE ASSEMBLY, SENSOR INST. KIT
240.0015 -ANTENNA ROD & COIL
262.0012 -CABLE, TMS DATA DOWNLOAD
262.0013 -CABLE, ANT. COAXIAL W / ANCHOR
264.0027 -BRACKET, ANTENNA
264.0038 -SUPPORT BRACKET, 1 SENSOR
264.0039 -SUPPORT BRACKET, 2 SENSORS
265.0017 -U-BOLT
268.0033 -VALVE CORE HOUSING
268.0044 -COLLIE SPUD
268.0046 -PROBE SWIVEL CONNECTOR, ELECT. DRIVE TRUCKS
268.0048 -PROBE SWIVEL CONNECTOR, MECH. DRIVE TRUCKS
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SCHEDULE B (REVISED MARCH 6, 1995)
PRICING (US DOLLARS)
010.0400-TIRE MAINTENANCE SYSTEM KIT 2895.00
010.0101-SENSOR W/BATTERY 344.00
010.0103-FITTING, VALVE SUPPORT 3.00
010.0104-LITHIUM BATTERY 17.00
010.0106-CABLE, PROGRAMMING 20.00
010.0107-ANTENNA KIT, CLAMP-ON 95.00
010.0109-TMS DATA DOWNLOAD KIT 149.00
010.0150-PROBE INSTALLATION KIT, MECH. DRIVE TRUCKS 585.00
010.0154-SENSOR INSTALLATION KIT 250.00
010.0160-PROBE INSTALLATION KIT, ELECTRIC DRIVE TRUCKS 345.00
010.0402-TMS MONITOR KIT, W/ EXP. MEMORY 727.00
200.0008-TEMPERATURE PROBE, 20" LEAD 40.00
200.0009-TEMPERATURE PROBE, 40" LEAD 40.00
200.0010-TEMPERATURE PROBE, 68" LEAD 40.00
010.0110-SEALING WASHERS, VALVE CORE HOUSING
(PACKAGE OF 20) 3.00
210.0013-CABLE, POWER SUPPLY 5.00
210.0018-ANCHOR ASSEMBLY, SENSOR 24.00
210.0019-HOSE ASSEMBLY, SENSOR INST. KIT 16.50
240.0015-ANTENNA ROD & COIL 37.00
262.0012-CABLE, TMS DATA DOWNLOAD 24.00
262.0013-CABLE, ANT. COAXIAL W / ANCHOR 45.00
264.0027-BRACKET, ANTENNA 10.00
264.0038-SUPPORT BRACKET, 1 SENSOR 6.50
264.0039-SUPPORT BRACKET, 2 SENSORS 10.00
265.0017-U-BOLT (FOR ANT. BRKT.) 1.50
268.0044-COLLIE SPUD 6.00
268.0033-VALVE CORE HOUSING 11.00
268.0046-PROBE SWIVEL CONNECTOR, ELECT. DRIVE TRUCKS 9.00
268.0048-PROBE SWIVEL CONNECTOR, MECH. DRIVE TRUCKS 30.00
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SCHEDULE C
TERRITORIES
No Exceptions
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SCHEDULE D
INSURANCE
Occurrence Comprehensive General Liability Insurance with a combined single
limit of $5,000,000 for bodily injury, death and property damage. The coverage
is to include personal injury insurance with deletion of both contractual
liability exclusion and employee exclusion and shall contain a waiver of
subrogation for the benefit of Distributor. Certificates evidencing such
coverage, naming Distributor as an additional named insured and providing thirty
(30) days prior written notice to Distributor in the event of modification or
cancellation of coverage shall be provided to Distributor. The certificate of
insurance shall not contain any form of disclaimer of the insurance carrier's
responsibility for a failure to give notice.
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SCHEDULE E
Distributor's Standard Conditions
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