Exhibit 10.12
INTERNATIONAL DISTRIBUTION
AGREEMENT
between
CIRALIGHT GLOBAL, INC.
and
▇▇▇▇ ▇▇▇▇▇▇ & SONS, LTD
DATED: January 15, 2010
TABLE OF CONTENTS
Article 1 - Appointment of Distributor........................................2
Article 2 - Products..........................................................3
Article 3 - Territory.........................................................3
Article 4 - Prices and Payment Terms..........................................3
Article 5 - Security Interest.................................................5
Article 6 - Duties of Distributor.............................................5
Article 7 - Duties of Corporation.............................................7
Article 8 - Minimum Purchases.................................................9
Article 9 - Exclusivity......................................................10
Article 10 - Warranty........................................................11
Article 11 - Term and Termination............................................12
Article 12 - Manufacturing...................................................15
Article 13 - Distributor Fee.................................................15
Article 14 - Confidentiality.................................................15
Article 15 - Trademarks......................................................16
Article 16 - Indemnification.................................................17
Article 17 - Insurance.......................................................19
Article 18 - Force Majeure...................................................19
Article 19 - General Provisions..............................................20
Exhibit A - Products & Trademarks
Exhibit B - Company Price List
Exhibit C - Warranty
Exhibit D - Letter of Appointment
Exhibit E - Exclusions
[CIRALIGHT GLOBAL, INC. LOGO]
DISTRIBUTION AGREEMENT
(EXCLUSIVE TERRITORY)
THIS AGREEMENT made as of January 15, 2010 (the "EFFECTIVE DATE")
BETWEEN:
CIRALIGHT GLOBAL, INC., a corporation incorporated under the laws of
Nevada with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIRALIGHT GLOBAL,
- and -
▇▇▇▇ ▇▇▇▇▇▇ & SONS, LTD., a company organized under the laws of Israel
with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ Israel
(the "Distributor").
WHEREAS:
(A) The Corporation produces and sells Daylighting products, as more fully
described in Article 2.1 below (the "Products") bearing the trademarks
listed on Exhibit "A" hereto;
(B) The Distributor desires to obtain the sole and exclusive right to
promote, distribute, sell, service and install the Products in the
Territory (as hereinafter defined) subject to such limitations as are
set forth herein (if any);
(C) The Distributor has assured the Corporation that it possesses the
necessary technical and commercial competence and the ability to
structure the organization necessary to ensure efficient performance
of its contractual obligations hereunder and this agreement is entered
into in substantial reliance on the Distributor's representation of
that competence;
Ciralight Global, Inc.
International Distribution Agreement
(D) The Corporation is willing to sell the Products to the Distributor to
market, promote, distribute, sell, service and install in the
Territory (as hereinafter defined) under the terms and conditions of
this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 -APPOINTMENT OF DISTRIBUTOR
1.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
the Corporation grants to Distributor the sole and exclusive right to
promote, market, distribute, sell, service and install the Products in
the Territory. The Distributor hereby accepts such sole and exclusive
appointment and agrees to use its best efforts in the performance of
its contractual obligations and privileges during the term of this
Agreement and in the Territory, in accordance with the terms and
conditions of this Agreement.
1.2 LICENSE. Subject to the provisions of Article 15 hereof, the
Corporation hereby grants to Distributor the non-exclusive right and
license to use in the Territory, only for so long as this Agreement is
in force, the trademarks set forth on Exhibit A hereto, as it may be
amended from time to time (the "Trademarks") for the sole purpose of
promoting and selling the Products in the Territory, and for no other
purpose.
1.3 DISCONTINUATIONS; NEW PRODUCTS. Nothing in this Article 1 or elsewhere
in this Agreement shall preclude the Corporation from discontinuing
the sale of any Product which the Corporation reasonably concludes is
no longer profitable or otherwise feasible for the Corporation to
sell, provided the Corporation gives the Distributor at least ninety
(90) prior written notice of such discontinuation. If the Corporation
shall desire to market and sell any additional natural lighting and
related products (as opposed to traditional electric lighting
products) in the Territory, the Corporation shall so advise the
Distributor in writing, and the Distributor shall have thirty (30)
days from the date of such notice to determine whether it wishes to
have such new product, added to Exhibit "A" as a Product. If the
Distributor so declines, the Corporation may distribute the new
product itself or through another distributor or commission agent in
the Territory, without affecting the exclusivity of the rights granted
in this Agreement with respect to the Products covered at that time by
this Agreement.
1.4 Limitations. The Distributor shall buy and sell the Products in its
own name and for its own account. Each party is an independent
contractor, and not an employee, agent, joint venturer or partner of
the other.. Each party and its employees shall identify themselves as
such, and shall make clear the limitations of their authority to any
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potential or actual customers of the Products. Neither party may, in
any manner, accept any obligation, incur any liability, promise any
performance or pledge any credit on behalf of, or for the account of,
the other except those expressly permitted under this Agreement. Each
party shall pay any and all expenses and charges relating to their
performance of contractual obligations hereunder.
Article 2 - PRODUCTS
2.1 PRODUCTS. The Products covered by this Agreement shall include
Ciralight Daylighting products manufactured by the Corporation, as
more specifically set forth on Exhibit "A" attached hereto, as it may
be amended from time to time in accordance with the terms of this
Agreement.
2.2 The Corporation represents and warrants that Exhibit "A" covers all
the lighting systems which allow for the passage of sunlight via roof
and ceiling fixtures into non-residential interior spaces, which are
currently manufactured and/or dealt with by the Corporation. In the
event that the Corporation shall commence to manufacture or otherwise
deal with any new lighting products, same shall be offered to the
Distributor for sale in the Territory; If accepted by the Distributor
same shall be added to Exhibit "A" and be part of the Products covered
by this Agreement. If not so accepted the provisions of paragraph 1.3
above shall apply.
Article 3 - TERRITORY
3.1 TERRITORY. The territory covered by this Agreement shall be the
territory of Israel including Gaza Strip, the Golan Heights, the West
Bank and any territory controlled by the Palestinian Authorities (the
"Territory").
Article 4 - PRICES AND PAYMENT TERMS
4.1 The selling price to the Distributor for the Products will be the
Corporation's list price for International Distributors in effect at
the time of the Distributor's order. The Distributor shall submit
purchase orders for the Products to the Corporation in writing, which
purchase orders shall set forth, at a minimum: identification of the
Products ordered, quantity and requested delivery dates. Unless stated
otherwise, prices, shipments and risk of loss are FOB port of Los
Angeles (as such term is defined in Incoterms 2000). Title and risk of
loss pass to Distributor in accordance with the definition of FOB in
Incoterms 2000. The current list prices to be charged to Distributor
for Products (and the components set forth in Article 6.2 below) are
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set forth in Exhibit "B" attached hereto. Corporation shall not charge
Distributor for Products a price that is higher than the lowest price
charged by Corporation for such Products to other international
distributors.
4.2 Any increase in prices shall be effected by giving Distributor at
least ninety (90) days prior written notice. Any increase in prices
shall not affect any orders placed by Distributor prior to the
expiration of said period of ninety (90) days. Corporation shall not
increase prices more than once during each period of 6 (six) months
commencing initially on 1 January 2010. Increase in prices shall be
predicated primarily upon an increase in the costs of the components
and raw materials used in the production of the Products and in
proportion to the increase in the prices of such components and raw
materials
4.3 All payments due to Corporation hereunder (including interest) shall
be made in US Dollars. Payment pertaining to any and all orders placed
by Distributor according to this Agreement will be executed by
Distributor through wire transfer to Corporation's bank account, the
details of which will be communicated by Corporation to Distributor
from time to time, in 2 installments as follows:
a) Distributor will effect payment of 50% of the purchase price of
any order no later than five (5) days of the date in which
Corporation has accepted in writing such order and prior to the
shipment of any order.
b) Distributor will effect payment of 50% of the purchase price of
any order no later than forty (40) days of the date in which the
order has been accepted by Distributor's Frieght Forwarder.
4.4 In the event of any delay in payment of any amounts due to the
Corporation hereunder, the Corporation shall have the right to suspend
deliveries and may, at its option, terminate the order and hold the
Distributor liable for damages, provided that any such delay has not
been remedied by the Distributor within a period of 14 days following
receipt of a written notice from the Corporation advising the
Distributor of the relevant delay and requiring payment. In the event
that the Corporation does not receive any payment when due, the
Distributor shall pay to the Corporation, on any delay in excess of 7
days, as a late charge and not as a penalty, interest on the unpaid
balance from the due date until payment is actually received by the
Corporation, at the varying prime (sometimes called base) announced by
the Corporation's banker. The Corporation's right to such interest
shall be in addition to and not in lieu of all other rights and
remedies arising by reason of such non-payment. Any payment received
by the Corporation may be applied by the Corporation first to any
outstanding interest due and then to any outstanding balance owed by
the Distributor to the Corporation, as the Corporation in its sole
discretion shall determine. The Distributor shall make all payments in
accordance with the terms of this Agreement notwithstanding any claim
for any alleged fault, defect or irregularity in the Products.
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Article 5 - SECURITY INTEREST
5.1 SECURITY INTEREST. The Corporation shall retain title to the Products
and shall have a security interest in the Products sold to the
Distributor and all accounts receivable arising from the sale of such
Products, including their respective proceeds (for purposes hereof,
the "Collateral") until paid in full. The Distributor, upon the
Corporation's request, shall give, execute, file and/or record any
notice, financing statement, continuation statement, instrument or
document which the Corporation shall consider necessary to create,
preserve, continue, effect or validate the security interest in the
Collateral granted hereunder or to enable the Corporation to exercise
or enforce its rights hereunder. The Distributor hereby authorizes the
Corporation to file any financing statements, continuation statements
or other documents in any jurisdiction at any time it deems necessary
to protect and maintain the Corporation's interest in the Collateral,
with or without the Distributor's signature, and the Distributor
hereby specifically authorizes the Corporation as the Distributor's
attorney-in-fact to execute and file such statements on the
Distributor's behalf. In the event the Distributor intends to utilize
other warehouse facilities, change its business address or in any
other way to transfer the storage of the Products, or any records
relating to such Products, including accounts receivable, to any
location other than the address set forth above, the Distributor shall
notify the Corporation in writing at least thirty (30) days prior to
such change or transfer.
Article 6 - DUTIES OF DISTRIBUTOR
6.1 The Distributor, at its own cost and expense, shall use all reasonable
commercial efforts to develop and promote the sale of the entire line
of the Products in the Territory. This covenant to use all reasonable
commercial efforts shall include without limitation the following
obligations:
(a) SALES ORGANIZATION. Distributor shall establish and maintain a
sales organization of personnel who are fully trained and
knowledgeable about the Products.
(b) INVENTORY. The Distributor shall in regular consultation with the
Corporation, maintain an adequate selection and stock of the
Products as is necessary to fulfill customers' demands and to
guarantee requests for replacement under warranty, as set forth
in Article 10 of this Agreement, as determined by the Distributor
based upon its prior business operations and experience and upon
the fixed delivery times. Furthermore, Distributor shall maintain
sufficient excess inventory of parts within its inventory to
assure prompt replacement for Products under warranty. Subject to
the provisions of Article 10, Warranty, of this Agreement, and
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the terms of the actual Warranty, Corporation shall replace, free
of charge, inventory parts used to satisfy warranty issues within
30 days after Distributor replaces said problem part provided
that Distributor shall promptly return the problem part as a
condition thereof.
(c) MONTHLY REPORTS. Distributor shall deliver to the Corporation
within one month after the expiration of each calendar quarter a
written report in regard to operations of the Distributor for the
preceding calendarquarter.
(d) ADVERTISING AND PROMOTION. The Distributor agrees to conduct, at
its own expense, reasonable advertising and public relations
campaigns for Products and to attend trade shows and maintain
website awareness for Products and include Products in catalogues
and institutional advertising undertaken by Distributor.
Distributor agrees to consult with and cooperate with Corporation
in developing and implementing effective ways to market the
Products. Distributor will have the option to purchase
pre-printed promotional materials prepared and printed by the
Corporation or to create and print Distributor's own promotional
material using approved product images, text, slogans, logos,
videos and other promotional items in an approved manner. New
advertising and promotional materials created by Distributor
shall be submitted to the Corporation for its written approval
prior to the use of any such material, provided that failure of
the Corporation to reply to any request for its approval within a
period of 7 days after receipt of the request shall be deemed as
an approval for the relevant promotional material.
(e) LICENSES AND PERMITS. The Distributor agrees that it shall obtain
any and all licenses and permits which may be required under all
applicable law in order to perform the duties and obligations
hereunder.
6.2 Unless otherwise agreed in writing, Distributor shall purchase all
components related to the installation and operation of the Products
from Corporation and shall use only official and approved parts for
the Products. This shall include without limitation the domes,
mirrors, lenses, frames, mid-trays and sun tracking controllers.
Notwithstanding the foregoing, it is agreed that Distributor shall be
allowed to purchase lightwells security bars, light shades and curbs
from third party sources provided that these parts comply with and
follow all the specifications provided by the Corporation and samples
thereof are submitted to Corporation for its written approval, not to
be unreasonably withheld or delayed.
6.3 Distributor shall install the Products in accordance with the
Corporation's official installation manual and instructions furnished
to the Distributor by the Corporation. Installations performed by
unauthorized/uncertified personnel, not installed in accordance with
the official installation manual and instructions, or otherwise
improperly installed, may result in voiding all or a portion of the
Corporation's warranty for such Product.
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6.4 Distributor agrees to observe high standards of ethical conduct and
honestly represent the capabilities of the Products. Distributor
undertakes to comply with the rules of fair competition and all other
applicable laws and regulations prevailing in the Territory.
6.5 Distributor is authorized to appoint resellers referred to as Dealers
and Sales Reps within the Territory under this Agreement. Dealers have
no rights or recourse to the Corporation. The Corporation requires
that Distributor provide pertinent information such as: Name, address,
and contact information of appointed Dealers and Sales Reps. The
Corporation agrees that information provided by Distributor shall be
used for record keeping purposes only and held confidential. for the
term so long as this agreement remains in effect and Distributor is
not otherwise in material breach hereof..
6.6 Distributor shall not utilize dealers or third party sales reps. All
sales people shall be employees of Distributor.
6.7 Except as expressly provided by this Agreement, any and all expenses
and /or charges connected with the fulfillment of the Distributor's
obligations and activity pertaining to this Agreement shall be
exclusively borne by the Distributor.
6.8 The Corporation's representatives may, upon prior written notification
and coordination with the Distributor, visit the Distributor's offices
at any reasonable time during normal business hours, in order to
assist in the improvement of the sales and marketing of the Products.
6.9 The Distributor agrees to provide the Corporation with regular
information as is necessary to keep the Corporation up to date
regarding sales of the Products, market trends, and the products and
advertising of competitors, to the extent same is available to the
Distributor. Upon the Corporation's request and at the Corporation's
expense, the Distributor shall furnish the Corporation with brochures,
advertising, illustrations and samples of competitors' products.
Article 7 - DUTIES OF CORPORATION
During the term of this Agreement, the Corporation shall provide Distributor
with the following:
7.1 Provide Distributor with branding and marketing material in English,
including artwork, logos, photos, written copy, product specifications
and other materials that can be used by Distributor to create
materials necessary to promote the Products.
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7.2 Assist Distributor with sales and installation training. Corporation
will provide Distributor with the most current installation materials
and updated Product information on a timely basis.
7.3 Provide Distributor with a listing as a Distributor for the Territory
on the Corporation's website.
7.4 Provide Distributor with ongoing communications regarding market
intelligence and other relevant information pertaining to the
Corporation's Products.
7.5 Provide a warranty for the Products in accordance with Article 10
herein. Corporation shall provide Distributor with 90 days advance
notice of any changes in the warranty terms and conditions offered by
the Corporation with respect to the Products, provided that such
change applies to all such Products sold by the Corporation and/or any
dealers and distributors of the Corporation. In the event Corporation
changes the warranty, as aforesaid, Distributor shall have 45 days
from said notice to determine whether to continue this agreement or at
its option may elect to discontinue this agreement upon 45 days notice
to Corporation. In the event the warranty provisions are changed, the
changes shall only apply to future purchases made after the effective
date of the change, and shall not be retroactive to prior purchases.
7.6 Corporation shall at all times have the right to contact purchasers of
the Products wherever located to determine their satisfaction with the
Products, the service and to make repairs to the Products as required
pursuant to applicable warranty terms. And to exercise its lien and
security interest in effect with respect to any Product sold but
unpaid for. Distributor shall maintain and provide contact information
for purchasers as requested by Corporation and in accordance with
policies set by corporation.
7.7 Corporation shall, in its sole discretion, as it deems necessary and
appropriate, defend its patents and rights against infringements and
violations within Distributor's territory.
7.8 Maintain sufficient Inventory of product and parts and/or capacity to
timely fulfill Distributor's orders which it has received and
confirmed and for which Distributor has paid and Corporation has
accepted payment of any amount required on account. Subject to the
terms and conditions of this Agreement, Corporation undertakes to
accept, confirm and fulfill all Products- related orders placed by
Distributor ("Distributor Purchase Orders") during any period during
the term of this Agreement commencing on the Effective Date of this
Agreement.
7.9 Lead time for the shipment of Distributor Purchase Orders shall be 15
days from the date of placement by Distributor of the Distributor
Purchase Order and acceptance thereof by the Corporation. Corporation
shall submit to Distributor a written Sales Order as acknowledgment
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and written acceptance of each Distributor Purchase Order within two
(2) business days of the receipt by Corporation of the relevant order
and after first establishing a delivery schedule therefor and
Distributor shall countersign each sales order to confirm acceptance
of the terms of the sale and delivery schedule once agreed upon..
7.10 Unless stated otherwise, prices, shipments and risk of loss for any
product purchased by Distributor from Corporation are FOB port of Los
Angeles . Subject to the conditions of Article 5, risk of loss pass to
Distributor in accordance with the definition of Ex Works in Incoterms
2000.
Article 8 - MINIMUM PURCHASES
8.1 The minimum purchases orders to be placed by Distributor during each
calendar year period during the term of this Agreement, commencing
with the 2011 year, are as follows:
(a) During the year of 2011 - purchase orders for two hundred fifty
(250) controllers of the Suntracker units.
(b) During the year of 2012 - purchase orders for Three hundred fifty
(350) controllers of the Suntracker units.
(c) During any calendar year thereafter, the minimum number of
purchase orders shall increase by five (5) percent per each
calendar year.
8.2 Either party shall be entitled to terminate this Agreement as provided
in Article 11 in the event that the quantity of Products ordered from
Corporation by Distributor in Territory has not reached the target as
set forth above (subject to the provisions of Article 8.3 below),
during each period, provided that any such termination shall be
effected by a written notice of sixty (60) days, to be delivered to
the other party, within thirty (30) days after the expiration of the
relevant calendar year, as aforesaid.
8.3 It is further agreed and understood that any orders for Products from
the Corporation, in excess of the relevant minimum purchase quantities
set forth above, shall be carried over to the following period/s and
shall be taken into account for the purpose of computing the relevant
minimum purchase quantities ordered from the Corporation during any
such subsequent period/s. Any quantity which is carried over to a
subsequent period, as aforesaid, shall be also taken into account in
calculating orders of Products in excess of the minimum purchase
quantities during such period, for the purposes of this Sub-Article
but such amount may only be carried forward for one subsequent period
and not more.
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8.4 For the sake of clarity, in the event of failure of Distributor to
comply with the minimum purchase quantities set forth above resulting
from any act, omission or breach of this Agreement by Corporation,
Corporation shall not be entitled to terminate this Agreement.
8.5 For the sake of clarity, it is agreed and understood that the
Corporation shall not be entitled to any damages and/or compensation
whatsoever, in the event that the Distributor fails to purchase the
minimum purchase quantities pursuant to the terms of this Article 8
and that the only remedy available to the Corporation with respect to
any such failure is the right to terminate this Agreement in
accordance with the terms set forth herein.
Article 9 - EXCLUSIVITY
9.1 During the term of this Agreement, the Distributor shall not, directly
or indirectly (by equity or management participation, beneficial
ownership, rendering of advice or consultation, contractual
arrangement or otherwise), solicit orders for, sell, distribute or
otherwise deal in, any products based on technology which is
competitive with the technology incorporated in the Products. For the
sake of clarity, only lighting products which incorporate a technology
competitive with the technology incorporated in the Products shall be
deemed competitive. Corporation agrees that passive skylights shall
not presently be considered as competitive products, but in the event
Corporation introduces new skylight products, whether passive or
active, which are added to the Products to be carried by Distributor,
then this provision shall apply to all such products carried by
Distributor, whether they be active or passive.
9.2 Corporation undertakes, not to, directly or indirectly, appoint any
other party as distributor and/or sub-distributor, including
distributors in additional territories, and/or agent and/or dealer
and/or sales representative and/or licensee for the marketing,
distribution or sale of Products in Territory, nor shall it sell or
distribute any Product in Territory or to any customer located in
Territory, other than a House Customer (as defined below) or through
Distributor, nor shall it sell or transfer any Products to any person
and/or entity outside Territory for use or resale within Territory,
except with the prior written consent of Distributor.
9.3 Corporation undertakes, not to, directly or indirectly, engage in the
sale of products similar or competitive to Products in Territory.
9.4 Provided that Corporation shall have received notice thereof, and been
given an reasonable opportunity to effect a cure, then in the event
that any dealer or distributor of Corporation from outside the
Territory is involved in the marketing, sale or distribution, directly
or indirectly, of the Products within Territory, Corporation, upon the
second such occurrence shall forthwith revoke such dealer's or
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distributor's appointment in the relevant territory. If Corporation
shall fail to comply with the aforesaid, it shall bear the sole
responsibility for the compensation of any and all losses caused,
directly or indirectly, to Distributor as a result of such marketing,
distribution or sale of Products in Territory. The aforesaid shall not
apply to any sporadic sales of Products in the Territory by third
parties that purchased same from said dealers or distributors,
provided that the relevant dealer or distributor did not know and
should not reasonably be expected to know that such Products are
purchased from it with the intention of reselling same within the
Territory. Without derogating from the aforesaid, any sales of
Products within the Territory by any such dealer or distributor shall
be deemed as a sale by the Distributor solely for the purpose of
computing the minimum purchase orders placed by the Distributor for
the purposes of this Agreement. The foregoing shall not apply to House
Customers.
9.5 Corporation undertakes to promptly advise Distributor, in writing, of
and refer to Distributor every inquiry, leads, prospects and related
information, which are directed to Corporation or which Corporation
receives regarding potential purchasers of any Product within
Territory and refer all such potential purchasers to Distributor with
the exception of House Customers, if applicable.
9.6 EXCLUSIONS. Notwithstanding anything in this Agreement, Corporation
may sell Products to certain House Customers, which are listed in
Exhibit C, and which shall be excluded from this Agreement. House
Customer shall mean a subsidiary, franchisee or company owned facility
in the Territory of a multinational company that operates in at least
8 countries outside the Territory. The Corporation may from time to
time add House Customers to the said Exhibit C subject to
Distributor's prior written consent which shall not be unreasonably
withheld. The Distributor shall not be responsible with respect to any
sales or servicing of Products by the Corporation to any such House
Customers.
Article 10- WARRANTY
10.2 THE CORPORATION WARRANTS TO THE DISTRIBUTOR EACH PRODUCT SOLD BY IT TO
BE FREE FROM DEFECTS IN , MATERIAL AND WORKMANSHIP, WHEN PROPERLY
INSTALLED AND MAINTAINED UNDER NORMAL USE AS MORE SPECIFICALLY
PROVIDED IN THE WARRANTY, A COPY OF WHICH IS ATTACHED AS EXHIBIT "C."
CORPORATION SHALL NOT BE LIABLE UNDER WARRANTY IF THE PROBLEM IS
CAUSED BY IMPROPER INSTALLATION
10.3 PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE
DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY THE CORPORATION'S
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DECISION, BE REPLACED OR REPAIRED, OR, AT THE CORPORATION'S OPTION,
CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT
DISTRIBUTOR NOTIFIES THE CORPORATION IN WRITING OF SUCH DEFECT WITHIN
THIRTY (30) DAYS OF DISCOVERY AND DISTRIBUTOR RETURNS SUCH PRODUCTS IN
ACCORDANCE WITH THE CORPORATION'S INSTRUCTIONS. NO PRODUCTS MAY BE
RETURNED BY THE DISTRIBUTOR WITHOUT THE CORPORATION'S PRIOR WRITTEN
AUTHORIZATION.
10.4 THIS WARRANTY DOES NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECTED
TO MISUSE, ABUSE, NEGLIGENCE OR ACCIDENT BY THE DISTRIBUTOR OR THIRD
PARTIES. THE WARRANTY SHALL BE VOID IF THE SEAL OF THE GPS CONTROLLER
UNIT IS BROKEN.
10.5 EXCEPT AS SET FORTH ABOVE AND WITHOUT DEROGATING FROM THE PROVISIONS
OF ARTICLE 16 BELOW (INDEMNIFICATION), THE CORPORATION MAKES NO OTHER
WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE PRODUCTS,
EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THAT OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. FAILURE TO MAKE ANY
CLAIM IN WRITING, OR WITHIN THE WARRANTY PERIOD SET FORTH IN EXHIBIT C
, SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THE PRODUCTS AND AN
ADMISSION BY THE DISTRIBUTOR THAT THE PRODUCTS FULLY COMPLY WITH ALL
TERMS, CONDITIONS AND SPECIFICATIONS OF DISTRIBUTOR'S PURCHASE ORDER.
WITHOUT DEROGATING FROM THE PROVISIONS OF ARTICLE 16 BELOW
(INDEMNIFICATION), THE CORPORATION SHALL NOT BE LIABLE UNDER THIS
WARRANTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS
RESULTING FROM INABILITY TO USE THE PRODUCTS, INCREASED OPERATING
COSTS OR LOSS OF SALES, OR ANY OTHER DAMAGES. TO MAKE A CLAIM UNDER
THIS WARRANTY, DISTRIBUTOR MUST NOTIFY THE CORPORATION IN WRITING
WITHIN THE WARRANTY PERIOD.
10.6 THE FOREGOING CONSTITUTES THE DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY
AND THE CORPORATION'S SOLE OBLIGATION WITH RESPECT TO PRODUCTS
FURNISHED HEREUNDER.
Article 11 - TERM AND TERMINATION
11.1 The duration of this Agreement shall be for a period of from the
Effective Date. Thereafter, this Agreement shall be automatically
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renewed, at the same terms and conditions, for additional, successive
periods of one (1) year each, unless terminated by either party in
accordance with the provisions of Article 11.2 - 11.34 below.
11.2 This Agreement may be terminated at any time by the Corporation
immediately upon written notice to the Distributor in the event that
after the date hereof:
(a) Distributor breaches its covenants of exclusivity set forth in
Article 9 hereof;
(b) The Distributor fails to comply with the applicable laws and
regulations in the Territory, pursuant to section 6.7 above, and
such failure has or may have a material adverse affect on the
distribution and sale of the Products pursuant to this Agreement;
(c) The Distributor fails to achieve the minimum purchase
requirements set forth in Article 8 hereof (and subject to the
terms of said Article);
(d) The Distributor fails to comply with the price and payment term
provisions set forth in Article 4 hereof, unless such failure has
been remedied by the Distributor within a period of 14 days
following receipt of a written notice from the Corporation; or
11.3 Anything in section 11.1 or 11.2 above to the contrary
notwithstanding, in the event that the Corporation breaches any of its
delivery obligations herein contained, the Distributor shall be
entitled to forthwith terminate the relevant order/s and any other
outstanding order/s or this Agreement as a whole.
11.4 Anything in section 11.1 or 11.2 above to the contrary
notwithstanding, this Agreement may also be terminated at any time by
either party immediately upon written notice to the other party in the
event that after the date hereof:
(a) Either party shall suspend or discontinue its business, or shall
make an assignment for the benefit of, or composition with,
creditors, or shall become insolvent or be unable or generally
fail to pay its debts when due, or either becomes in any
jurisdiction a party or subject to (voluntarily or involuntarily)
any liquidation or dissolution action or proceeding with respect
to itself, or to any bankruptcy, , insolvency or other proceeding
for the relief of financially distressed debtors is commenced
with respect to it, or a receiver, liquidator, custodian or
trustee shall be appointed for it, or a substantial part of its
assets (and with respect to any involuntary action or proceeding,
an order entered in the proceeding is not dismissed within thirty
(30) days) or it shall take any action to effect or which
indicates its acquiescence in any of the foregoing;
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(b) A change in control of Distributor takes place. For the purposes
of this agreement, "control" shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interest, by contract or
otherwise);
(c) The other party attempts to assign this Agreement or any rights
or obligations hereunder without the prior written consent of the
other party; or
(d) The other party materially breaches any provision of this
Agreement and fails to cure such default within thirty (30) days
of receipt of written notice thereof, with the exception of the
reasons for default set forth in 11.2 above, the occurrence of
which give the Corporation the right of immediate termination.
11.5 PROCEDURE UPON TERMINATION. Upon termination of this Agreement by the
Corporation in accordance with the terms hereof, the Corporation is
entitled to restrict or cease deliveries of the Products to the
Distributor, including deliveries on orders already received at the
time of the notice of termination. Also upon termination of this
Agreement, the Distributor shall cease to have any rights, liabilities
or obligations hereunder, with the exception of the Distributor's
obligations under Article 10 and Article 15, which obligations shall
survive termination and with the exception of the Distributor's rights
under Articles 14 and Article 16, which shall survive termination.
Notwithstanding the foregoing, except in the event of termination by
the Corporation pursuant to Section 11.4(a) above, the Corporation is
required to make the Products available to the Distributor in such
quantities so as to enable the Distributor to maintain the
Distributor's own delivery commitments existing before the effective
date of termination, subject to proof being given by the Distributor
to the Corporation that it was under unconditional contractual
obligations at the time it received notice of termination to make
deliveries which it can not fulfill from its inventory. After any
notice of termination is given, the Corporation may modify the terms
of payment for any subsequent shipment.
11.6 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement, all of the Distributor's rights with respect to the
Trade-marks shall immediately cease, provided, however, that the
Distributor may utilize the Trademarks to sell any Products remaining
in inventory or otherwise delivered after the said expiration or
termination for a period of six (6) months from the date of
termination.
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Article 12 - MANUFACTURING
12.1 Distributor shall not manufacture or produce Products covered by this
Agreement unless otherwise agreed in writing. Notwithstanding the
aforesaid, Distributor shall be entitled to manufacture the
"LIGHTWELL" and "CURBS" that are auxiliary to the SUNTRACKER of the
Products. For the sake of clarity, said "LIGHTWELL" and "CURBS" as
well as security bars and lightshades, may be acquired from third
party sources provided that these parts comply with and follow all the
specifications provided by the Corporation and samples thereof are
submitted to the Corporation for its written approval which shall not
be unreasonably withheld or delayed. Nothing in this Agreement shall
preclude the Corporation from contracting with manufacturers in the
Territory to supply components to Distributor or to other Territories.
Article 13- DISTRIBUTOR FEE
13.1 In consideration for being granted the exclusive right as the
Distributor for the Territory, Distributor shall pay to Corporation a
Distributor Fee in the amount of $10,000.00 payable $5,000 upon
execution of the Agreement and $5,000 at the start of the sixth month
following the Effective Date. One-half of the entire amount of the
above Distribution Fee shall be set off and deducted at the rate of
$100 per unit from the amounts payable to the Corporation by the
Distributor for the purchase of Products pursuant to the terms of this
Agreement
Article 14 - CONFIDENTIALITY
14.1 CONFIDENTIAL INFORMATION. During the term hereof and thereafter, each
party agrees to keep secret all Confidential Information of the other
and to take all steps and institute any internal secrecy procedures
which may be necessary to maintain the secrecy of the Confidential
Information of the other and further agrees that it shall not use the
Confidential Information except in connection with the performance of
its obligations under this Agreement. Upon termination of this
Agreement, each party shall immediately cease to use the Confidential
Information of the other and shall return to the other all documents
and copies in its possession or control which in any way embody or
evidence the Confidential Information. As used herein, the term
"Confidential Information" shall mean all information disclosed to a
party or otherwise acquired by a party in connection with the other
party Agreement, concerning or relating in any way to the markets,
customers, Products, procedures, plans, operating experience,
marketing strategies, organization, employees, financial conditions or
plans or business of the other party, its subsidiaries or Affiliates,
provided that same is marked as "Confidential" at the time of
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disclosure or should otherwise reasonably ought to be treated as
confidential given its nature and the circumstances of its disclosure,
except for such knowledge or information which: (i) is or later
becomes publicly known under circumstances involving no breach of this
Agreement by the receiving party; (ii) was already known to the
receiving party at the time it received the information or knowledge;
(iii) is made available to the receiving party by a third party
without secrecy obligation and without breach of its obligations to
the disclosing party; or (iv) the receiving party is required by law
to divulge.
Article 15 - TRADEMARKS
15.1 During the term of this Agreement, the Distributor shall have the
limited, non-exclusive , royalty-free right to use the Trademarks in
connection with the promotion and sale of Products in the Territory,
provided however that the Distributor obtain the Corporation's prior
written consent to use the Trademarks in catalogues, promotional
materials, and advertising materials, a mock up or example of which is
first submitted to the Corporation and provided further that failure
of the Corporation to reply to any request for its consent within a
period of 7 days after receipt of the request and the mock-up or
sample shall be deemed as an approval for the relevant use included in
such request.
15.2 Use of the Trademarks shall conform to the following requirements:
(a) The Distributor shall not use the Trademarks in any manner other
than as set forth in Section 15.1 above without the prior written
approval of the Corporation.
(b) The Distributor shall not put or retain the Trademarks in the
Distributor's own name or any business name;
(c) The Distributor shall not use the Trademarks in any manner which
suggests an affiliation with the Corporation other than that of
distributor of the Products;
(d) The Distributor shall not add to, or use with, the Trademarks,
any other trade name, trademark, symbol or device without the
prior written approval of the Corporation, except for
Distributor's own trademarks and subject to (c) above.
(e) The Distributor shall employ any symbol or notice with the
Trademarks which the Corporation advises is necessary, from time
to time, to identify and protect the interest of the Corporation
in the Trademarks.
(f) The Distributor shall apply no other trade name or trade name,
nor any labels, signs or markings of any kind to the Products
without the prior written consent of the Corporation. The above
shall not be interpreted as preventing the Distributor from
applying its own trade name and markings to the packages or any
other materials distributed by it together with the Products in a
manner that is not misleading.
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15.3 The Distributor hereby acknowledges that the Corporation (or Licensors
of the Corporation) are the sole owners of the Trademarks and the
goodwill pertaining thereto and that nothing contained herein shall
constitute an assignment of the Trademarks or grant to Distributor any
right, title or interest therein, except the right to use it as set
forth in this Article 15. The Distributor agrees that it will not
contest the Corporation's (or the Corporation's Licensors') ownership
of the Trademarks, either during or after the term of this Agreement.
15.4 The Distributor shall notify the Corporation in writing of any
infringement of the Trademarks in the Territory, of any applications
or registrations for the Trademarks or marks similar to the Trademarks
within the Territory, of any suit or proceeding or action of unfair
competition involving the Trademarks in the Territory, promptly after
it has notice thereof.
15.5 The Distributor agrees that, upon the termination of this Agreement,
it shall have no interest in or right to use the Trademarks in any
manner or for any purpose whatsoever, except for the limited right to
sell its then remaining inventory of Products bearing the Trademarks.
15.6 If the Distributor acquires any rights to the Trademarks for any
reason, it undertakes to promptly return such rights to the
Corporation immediately and without expense to the Corporation.
15.7 The Corporation represents and warrants to the Distributor that (i) it
is the registered owner of the Trademarks and/or is the sole
authorized licensee of such Trademarks in the Territory, pursuant to
valid license agreements and (ii) it has the right, power and
authority to enter into this Agreement and to grant to the Distributor
the rights granted hereby; and (iii) that the promotion, marketing,
distribution and sale of the Products by the Distributor herein shall
not infringe or violate the intellectual property or other rights of
any third party.
Article 16 - INDEMNIFICATION
16.1 Distributor shall indemnify, defend, and hold harmless the
Corporation, its employees, officers, directors, agents, and
representatives (each of the foregoing hereinafter referred to as
"Indemnified Party") of, from, and against any and all claims,
penalties, demands, causes of actions, damages, losses, liabilities,
costs, and expenses including reasonable attorneys' fees, of any kind
or nature whatsoever, arising out of or in any manner directly or
indirectly related to Distributor's breach of any of its obligations
under this Agreement, except to the extent attributable to the
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negligence or willful misconduct of the Corporation, its employees,
officers, directors, agents, and representatives.
16.2 The Corporation shall indemnify, defend, and hold harmless
Distributor, its employees, officers, directors, agents, and
representatives (each of the foregoing hereinafter referred to as
"Indemnified Party") of, from, and against any and all claims,
penalties, demands, causes of actions, damages, losses, liabilities,
costs, and expenses including reasonable attorneys' fees, of any kind
or nature whatsoever, arising out of or in any manner directly or
indirectly related to the Corporation's breach of any of its
obligations or warranties under this Agreement except to the extent
attributable to the negligence or willful misconduct of Distributor,
its employees, officers, directors, agents, and representatives.
16.3 Notwithstanding anything contained herein, the Corporation or
Distributor, as the case may be (hereinafter referred to as
"Indemnifying Party") shall not have any liability under the indemnity
provisions of this Agreement with respect to a particular matter
unless a notice setting forth in reasonable detail the breach or
default which is asserted has been given to Indemnifying Party within
the applicable statute of limitations and, in addition, if such matter
arises out of a suit, action, investigation, claim or proceeding, such
notice is given reasonably promptly after the Indemnified Party shall
have been given notice of the commencement of a suit, action,
investigation, claim or proceeding.
16.4 Upon receipt of notice of any suit, action, investigation, claim or
proceeding for which indemnification might be claimed by an
Indemnified Party, Indemnifying Party shall be entitled promptly to
defend, contest or otherwise protect against any such suit, action,
investigation, claim or proceeding at its own cost and expense.
Indemnifying Party shall have the right to settle or compromise any
such suit, action, investigation, claim or proceeding, without the
consent of the Indemnified Party; provided that such settlement or
compromise does not require Indemnified Party to pay any money and
requires the claimant to unconditionally release Indemnified Party
from all liability with respect to such claim or litigation.
Indemnified Party shall have the right, but not the obligation, to
participate at its own expense in a defense thereof by counsel of its
own choosing, but Indemnifying Party shall be entitled to control the
defense unless Indemnified Party has relieved Indemnifying Party from
liability with respect to the particular matter. In the event
Indemnifying Party undertakes the defense of such matters, Indemnified
Party shall not be entitled to recover from Indemnifying Party any
legal or other expenses incurred by Indemnified Party in connection
with the defense thereof.
16.5 For the sake of clarity, it is further agreed that any termination of
this Agreement by Corporation, other than pursuant to the provisions
of Sections 11 above, shall be deemed a material breach of this
Agreement by Corporation, and shall entitle Distributor, without
derogating from any other or additional remedy available to
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Distributor pursuant to this Agreement and/or any applicable law, to
receive from Corporation full compensation for any and all damages,
expenses and losses incurred by Distributor, directly or indirectly,
including loss of profits, as a result of such termination
Article 17 - INSURANCE
17.1 Corporation and Distributor shall each obtain and keep in force, at
its sole expense, product liability insurance providing adequate
insurance against any claims and suits involving product liability
arising out of, or with respect to, the transactions contemplated by
this Agreement, in an amount not less than One million dollars
($1,000,000.00) combined single limit on bodily injuries and/or
property damage. Within thirty (30) days after the date of this
Agreement, each party shall submit to the other a certificate of
insurance naming each other as an additional insured and providing
that any cancellation or material change or alteration which reduces
coverage or any benefits accruing to the other party shall become
effective only upon thirty (30) days prior notice to the other party.
The requirements of this Article are acknowledged by each party to be
a material term of this Agreement.
Article 18 - FORCE MAJEURE
18.1 Neither party hereto shall be liable to the other for delay in any
performance or for the failure to render any performance under this
Agreement when such delay or failure is a direct result of any present
or future statute, law, ordinance, regulation, order, , act of God,
earthquake, epidemic, explosion, lockout, boycott, general strike,
general labor unrest, riot, war, or similar catastrophic occurrence.
Any such event may be relied upon by either party only if: (i) it
directly prevents such party from fulfilling its material obligations
under this Agreement; and (ii) it arises without the fault or
negligence of such party; and (iii) such party could not have
reasonably foreseen such event at the time of signature of this
Agreement; and (iv) such party made all reasonable efforts to avoid or
overcome the effect of the event on it fulfillment of said obligations
under this Agreement.
18.2 In the event of any such delay or failure, the affected party shall
send written notice by telefax or telex of the delay or failure and
the reason thereof to the other party within fourteen (14) calendar
days from the time the affected party knew or should have known of the
Force Majeure in question.
18.3 The provisions of this Article shall not be applicable to any
obligation involving the payment of money.
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Article 19 - GENERAL PROVISIONS
19.1 GOVERNING LAW. This Agreement and all sales and commission
transactions pursuant hereto shall be governed by the laws of the
State of California, United States of America, but without reference
to the choice of law provisions thereof.
19.2 NOTICES. Any notice, request, demand, waiver, consent, approval or
other communication required to be given pursuant to this Agreement
(each, a "Notice") shall be in writing to the Party's respective
addresses as set forth in the Preamble of this Agreement, or to any
other address, if to Corporation to the Attention of ▇▇. ▇▇▇ ▇▇▇▇▇▇
and if to Distributor to the Attention of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, as either
Party may designate by giving a written notice to the other, and be
deemed effectively delivered:
(a) If delivered personally, upon the date of delivery;
(b) If registered mailed, within 7 working days from the dispatch
thereof;
(c) If delivered by Federal Express or other similar services 3
working days from the dispatch thereof;
(d) If delivered by facsimile, within 24 working hours from the
dispatch thereof.
(e) All Notices are to be given or made to the parties at the
addresses appearing on the first page hereof, or to such other
address as any party may designate by a Notice given in
accordance with the provisions of this Section 19.2.
(f) A courtesy copy of such notices shall be sent to counsel, as
follows:
If to Corporation's Counsel: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇
19.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with Exhibits
hereto, contains the entire agreement and understanding of the parties
hereto with respect to the matters herein set forth, and all prior
negotiations and understandings relating to the subject matter of this
Agreement are merged herein and are superseded and canceled by this
Agreement. This Agreement may not be modified except in writing,
signed by both of the parties hereto.
19.4 TIME OF ESSENCE. Time is of the essence for the performance of each
and every covenant and the satisfaction of each and every condition of
this Agreement.
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19.5 WAIVER. The failure by the Corporation to require the performance of
any term of this Agreement or the waiver by the Corporation of any
breach under this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the Distributor hereto.
19.6 ASSIGNMENT. Neither party shall assign its rights nor delegate the
performance of its duties or other obligations under this Agreement,
including any claims arising out of or connected with this Agreement,
without the prior written consent of the other party.
19.7 ARBITRATION. Except with respect to equitable remedies provided
herein, including, without limitation, injunction relief, all claims,
demands, disputes, controversies, differences or misunderstandings
arising out of or relating to this Agreement, or the failure or
refusal to perform the whole or any part thereof, shall be referred to
and finally resolved by arbitration to be administered by the
International Centre for Dispute Resolution, a division of the
American Arbitration Association ("AAA"), in accordance with its
International Arbitration Rules then obtaining (the "IA Rules"). The
arbitration shall be conducted before one arbitrator to be selected by
agreement of the parties or, if no agreement can be reached, in
accordance with the IA Rules. The arbitration shall be conducted using
the English language for all purposes. Either party hereto may
initiate the arbitration by serving a written demand for arbitration
on the other party, which demand shall contain a description of the
nature of the dispute. All hearings of the arbitration shall take
place in Orange County, California, United States of America.
The initial fees and costs of the arbitration shall be borne equally
and paid timely by each party hereto. Failure by a party to pay said
fees and costs to the AAA timely shall constitute a material default
under this Agreement. The award shall be final and binding upon the
parties, and the parties agree to be bound by the terms of the award
and to act accordingly. The judgment upon any award may be entered in
and enforceable by any court having jurisdiction over the party
against whom the award has been rendered or wherever the assets of the
party are located. Any award for costs shall include attorney fees and
costs to the prevailing party, and attorney's fees and costs shall
also be recoverable in any action to enforce the award.
The parties hereto, and each of them, hereby submit themselves to the
jurisdiction of the state courts of the State of California and the
United States Federal District Court in California in any proceeding
for the enforcement of the award rendered by the arbitrator, and agree
that judgment upon such award may be entered in any court, in or out
of the State of California, having jurisdiction thereof. The
arbitrator shall rule in accordance with the laws of California,
without giving affect to the rules of conflict of laws thereof. The
parties to the proceeding shall have reasonable rights of discovery in
accordance with the Civil Rules of Federal Procedure used in the
United States District Court.
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Nothing contained herein shall prevent either party from applying to
any court of law in order to obtain injunctions or any equivalent
remedy, against any other party, in order to restrain the breach of
any restrictive covenants pursuant to this Agreement.
19.8 LETTER OF APPOINTMENT. A Letter of Appointment, in the form attached
hereto as Exhibit "D" shall be furnished by Corporation to Distributor
concurrently with the signature of this Agreement. Distributor shall
be entitled, at its sole discretion, to show such letter to any person
in order to evidence Distributor's appointment hereunder. Upon the
termination of this Agreement, the Letter of Appointment shall
automatically terminate forthwith and shall not be utilized any
further by Distributor.
19.9 The terms and conditions herein contained, constitute the entire and
only contract between the Parties hereto with respect to the subject
matter hereof and shall supersede all previous communications,
representations and/or agreements, either written or oral, between the
Parties in respect of such subject matter. No modification of terms
and conditions of this Agreement shall be binding unless agreed upon
in writing and signed by both Parties.
19.10 Each Party hereby warrants, confirms and undertakes that:
(a) It has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
therein;
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and this
Agreement constitutes a valid, legal and binding agreement of
such party, enforceable against it in accordance with its terms;
(c) Neither the execution and delivery of this Agreement by it nor
the consummation of the transactions contemplated hereby will (i)
violate, or result in a default under any note, agreement,
contract, understanding, arrangement, restriction or other
instrument or obligation to which it is a party or by which it
may be bound; or (ii) violate any order, award, injunction,
judgment or decree to which it is subject.
19.11 SEVERABILITY. In case any one or more provisions contained in this
Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and other
applications thereof shall not in any way be affected or impaired
thereby.
19.12 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the successors, permitted
assigns, heirs, executors, administrators and any other entity
surviving the merger or acquisition of any of the parties hereto or
their assets.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
CIRALIGHT GLOBAL, INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CEO
▇▇▇▇ ▇▇▇▇▇▇ & SONS, LTD.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
23
EXHIBIT "A"
PRODUCTS AND TRADEMARKS
PRODUCTS:
SuntrackerOne & related components
SuntrackerTwo & related components
TRADEMARKS AND SLOGANS
Ciralight
Ciralight Global
Leading the Daylighting Revolution
Daylight on, lights off
SuntrackerOne
SuntrackerTwo
Smart Skylights
Intelligent Skylights
EXHIBIT "B"
PRICE LIST
CIRALIGHT GLOBAL, INC.
DISTRIBUTOR PRICE LIST
Distributor Retail
Part # Description Price Price
------ ----------- ----- -----
BASE SUNTRACKER UNITS
2200 SUNTRACKERTWO Base Unit 4'x4' (Single Mirror) - includes the Dome
Assembly, Mid Tray Assembly, Single Mirror Assembly and the GPS
Suntracking Controller $ 675.00 $ 950.00 *
2100 SUNTRACKERONE Base Unit 4'x4' (Triple Mirror) - includes the Dome
Assembly, Mid Tray Assembly, Triple Mirror Assembly and the GPS
Suntracking Controller $ 775.00 $1,050.00
ADDITIONAL REQUIRED COMPONENTS WITH OPTIONS OFFERED
4500 BOTTOM LENS - CUSTOMER TO CHOSE STYLE OF CEILING LENS
4510-ST Lens, Pyramid - Prismatic Acrylic 4'x4' $ 57.00 $ 75.00 *
4520 Lens, Pyramid - Prismatic Polycarbonate 4'x4' $ 83.00 $ 105.00
4530 Lens, Drop Diffuser Low Ceiling Design 4'x4' $ 118.00 $ 145.00
4540 Lens, Flat Acrylic 4'x4' $ 25.00 $ 35.00
4550 Lens, Flat Polycarbonate 4'x4' $ 44.00 $ 55.00
4700 LIGHTWELLS - CLIENT TO CHOSE DESIRED LIGHTWELL
4710-ST 24' Regal, White Lightwell 4'x4' $ 107.00 $ 135.00 *
4715 36' Regal, White Lightwell 4'x4' $ 129.00 $ 154.00
4720 48" Regal White Lightwell 4'x4' $ 141.00 $ 169.00
4725 60" Regal White Lightwell 4'x4' $ 153.00 $ 183.00
4730 72" Regal White Lightwell 4'x4' $ 182.00 $ 218.00
4740 24" Polished Aluminum Lightwell 4'x4' $ 143.00 $ 171.00
4745 36" Polished Aluminum Lightwell 4'x4' $ 181.00 $ 217.00
4750 48" Polished Aluminum Lightwell 4'x4' $ 235.00 $ 281.00
4755 60" Polished Aluminum Lightwell 4'x4' $ 289.00 $ 346.00
4760 72" Polished Aluminum Lightwell 4'x4' $ 346.00 $ 414.00
REPLACEMENT PARTS AND ACCESSORIES:
4100-A DOME ASSEMBLY - COMPLETE $ 256.00 $ 370.00
4200-A MID TRAY ASSEMBLY - COMPLETE $ 99.00 $ 142.00
4300 SINGLE MIRROR ASSEMBLY - ALL PARTS $ 68.00 $ 105.00
4310 Single Mirror (Standard) $ 55.00 $ 79.00
4320 Single Mirror Bracket $ 10.00 $ 15.00
4325 Single Mirror Post 3" $ 3.50 $ 7.00
4330-A Single Mirror Bolt Package $ 3.00 $ 5.00
4350 TRIPLE MIRROR ASSEMBLY - ALL PARTS $ 173.00 $ 255.00
4360 Triple Mirror $ 153.00 $ 221.00
4370 Triple Mirror Bracket $ 12.00 $ 19.00
4375 Triple Mirror Post $ 5.00 $ 10.00
4390-A Triple Mirror Bolt Package $ 3.00 $ 5.00
4400-A GPS CONTROLLER ASSEMBLY - COMPLETE $ 295.00 $ 426.00
4800 CURBS
4810 Standard R6.5 Curbs 4'x4' $ 285.00 $ 375.00
4900 MISCELLANEOUS
4910 Burglar Bars 4'x4' $ 220.00 $ 285.00
4920 Louvres/Shade System $ 400.00 $ 455.00
Prices are subject to change
EXHIBIT "C"
PRODUCT WARRANTY
[CIRALIGHT GLOBAL, INC. LOGO]
CIRALIGHT SMART SKYLIGHT DAYLIGHTING SYSTEM
MANUFACTURER'S LIMITED WARRANTY
Ciralight Global, Inc. ("CGI"), is pleased to offer a limited warranty on the
SunTrackerOne and SunTrackerTwo Ciralight Smart Skylights as more specifically
outlined below ("PRODUCTS"). Ciralight Global, Inc. warrants its products and
parts against defects in, materials, workmanship including failure to operate
within its indicated specifications i.e. failure of its mirrors to face the sun
at +/- 10 degrees at any time during daylight. In addition, CGI warrants the
skylight against leaking as part of the Dome warranty provided that the
lightwells and curbs, if not acquired from CGI, meet with CGI's approval, and
further provided that the products are installed in accordance with CGI's
written specifications. The parts under warranty and details thereof are as
follows:
Part Description Types of Warranty Duration
---------------- ----------------- --------
Acrylic Dome & Frame Manufacturer's Defect 10 years
Mirror Assembly Manufacturer's Defect 10 years
GPS Controller Manufacturer's Defect 10 years
Flat Lens Manufacturer's Defect 10 years
Bottom Lens Manufacturer's Defect 10 years
Ciralight Global, Inc. will repair or replace (at its option) any product and/or
any of its parts, or, at CGI' selection, give credit for the original purchase
price. Any such repair or replacement shall be made by CGI, within 60 (sixty)
days of the receipt from the Distributor or the end user of notification and
description of the defect and prompt verification thereof by CGI or for valid
claims made under Warranty, CGI shall bear all normal transportation and/or
shipment costs from and to the Distributor or the customer, as the case may be,
including but not limited to costs of installation of the replaced product, or
its parts, at the facilities of the Distributor or the end user whichever
applies.
Each of the warranty periods set forth above commences on the date the Product
has been shipped by CGI.
In the event the seal to the GPS Controller Unit case is broken, the warranty on
the GPS Controller Unit is void.
This warranty does not apply to repairs, roof leakage, or replacements
necessitated by any cause beyond the control of CGI, including, but not limited
to, any malfunction, defect or failure caused by or resulting from unauthorized
service or parts, improper maintenance, operation contrary to furnished
instructions, shipping or transit accidents, modification or repair by the user,
abuse, misuse, neglect, accident, fire, flood, or other Acts of God or beyond
the control of CGI.
In no event shall CGI be liable for any consequential damages arising from
ownership, installation or use of this product, or any delay in the performance
of its obligations under this warranty due to circumstances beyond its control.
All requests for services should be directed to Customer Service through e-mail
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, fax to (▇▇▇) ▇▇▇-▇▇▇▇ or by calling
▇▇▇-▇▇▇-▇▇▇▇.
EXHIBIT "D"
LETTER OF APPOINTMENT
Ciralight Global, Inc.
Letter of Appointment
January 15, 2010
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ & Sons (1995) Ltd.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ Israel
Dear Roei:
It is our pleasure to welcome you to Ciralight Global, Inc. as an authorized
Distributor. We are confident in your ability to market, sell and represent our
product line within your territory successfully.
This Letter of Appointment authorizes you to be the Exclusive Distributor for
Ciralight Global, Inc. for the territory of the Israel, under the terms and
conditions of our dealership agreement dated January 15, 2010.
We look forward to working with you and look forward to your success.
Sincerely,
/s/ ▇▇▇▇ Brain
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▇▇▇▇ Brain
Chief Financial Officer
Ciralight Global, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ * ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ *▇▇▇-▇▇▇-▇▇▇▇ * Fax ▇▇▇-▇▇▇-▇▇▇▇
www.ciralightglobal,com
EXHIBIT "E"
EXCLUSIONS
Firestone Building Products
Ikea
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