EXHIBIT 10.1
DATED October 21, 1993
ALCOHOL SENSORS INTERNATIONAL, LTD.
- AND -
DIGITAL VEHICLE SECURITY SYSTEMS LIMITED
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EXCLUSIVE DISTRIBUTOR AGREEMENT
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INDEX TO CLAUSES
1 Interpretation
2 Appointment of Distributor
3 Testing and Acceptance
4 Supply of the Products
5 Product Warranty and Returns
6 Product Recall and Epidemic Fault
7 Delivery and Liquidated Damages for Late Delivery
8 Price and Price Changes
9 Payment Terms
10 Marketing of the Products
11 Support and Training
12 Product and Service Information
13 After Sales Service and Spares
14 Continuity of Supply
15 Intellectual Property, Trade Marks & Logo
16 Warranties and Liability
17 Title and Risk
18 Confidentiality
19 Duration and Termination
20 Consequences of ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
22 Nature of Agreement
23 Dispute Resolution and Proper Law
24 Notices and Service
25 Notification
26 Data
Schedule 1 Products/Specifications
Schedule 2 Territory
Schedule 3 Trade marks
Schedule 4 Prices
Schedule 5 National Highway Traffic Safety Administration Docket
Schedule 6 Distributor's Equipment
Schedule 7 Purchase Order
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EXCLUSIVE DISTRIBUTOR AGREEMENT
Date: October 21, 1993
Parties:
1 ALCOHOL SENSORS INTERNATIONAL, LTD., a corporation organised and
existing under the laws of the State of New York having its principal
place of business at ▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ("THE OWNER").
2 DIGITAL VEHICLE SECURITY SYSTEMS LIMITED a company incorporated in
England, the registered office of which is situated at Unit 1B
Saxeway Business Centre, Chartridge Lane, Chesham, Buckinghamshire,
HP5 2SH, England ("THE DISTRIBUTOR").
RECITALS
(A) The Owner owns all property, title, manufacturing, sales and marketing
rights in a breath alcohol ignition interlock device ("BAIID")
currently known as Sens-O-Lock and consisting of Series 1000, 2000 and
3000.
(B) The Distributor has considerable sales and marketing experience in the
Territory and wishes to act as the Owner's exclusive distributor for
BAIIDs therein.
Operative provisions:
1 INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
"Agreement" means the terms hereinafter contained, the Purchaser Order and all
Schedules.
"Approval Authority" means the appropriate department of H.M. Government or
other body (or equivalent department or Organisation in any country which
makes up the Territory) responsible for the granting for any type approval for
the Products or any similar products or responsible for the establishment or
testing criteria for any legally mandated Product or similar products.
"Associated Company" means any subsidiary for the time being of a party to
this Agreement or the holding company of such party or any subsidiary of any
such holding company; and the expressions "subsidiary" and "holding company"
shall mean (respectively) the holding of more than 5O% of the share capital in
a company or more than 5O% of the share capital of the company being held by
another company.
"Customer" means the purchaser of a Product from the Distributor.
"Delivery Date" means the date for delivery of the Product to the Distributor
as stated in the Purchaser Order.
"the Distributor" means Digital Vehicle Security Systems Limited.
"Distributor's Warehouse" means the warehouse at the Distributor's premises at
Chesham or such other place as shall be notified in writing to the Owner.
"Effective Date" means October 21, 1993 and is the date on which this
Agreement comes into force.
"Ex-Works" means delivery to Distributors carrier at ▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Final Customer" means the first end user of the Product.
"Force Majeure" means the occurrence of any of the following:
(i) Act of God, (ii) outbreak of hostilities, riot, civil disturbance, acts of
terrorism, (iii) the act of any government or authority (including refusal or
revocation of any licence or consent), (iv) fire, explosion, flood, fog or bad
weather, (v) theft, malicious damage, strike, lockout or industrial action of
any kind.
"Guarantee Period" means in relation to any Product the period of twelve
months immediately following the installation of the Product to the Final
Customer.
"Intellectual Property" means any patent, copyright, registered/ unregistered
design, trade ▇▇▇▇, know-how or other industrial or intellectual property
right subsisting in the Territory in respect of the Products, and applications
for any of the foregoing and for the avoidance of doubt shall include
semiconductor topography within the meaning of Section 2(l) of the Design
Right (Semiconductor Topographies) Regulations 1989.
"Invoice Value" means the sums invoiced by the Owner to the Distributor in
respect of any Products, less any value added tax (or other taxes, duties or
levies) and any amounts for transport or insurance included in the invoice.
"Material Change Of Ownership" means:
(a) any disposition of not less than 30% in nominal value of the equity share
capital of the Owner by a single transaction or series of related
transactions, or
(b) in relation to the Owner which is a subsidiary of another, any disposition
of more than 50% in nominal value of the equity share capital of the Owner or
such portion of the equity share capital conferring on that other company the
right to control the composition of the board of directors/officers of the
Owner by a single transaction or series of transactions, or
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(c) in relation to the disposition of the business and assets of the Owner,
the transfer of a substantial proportion of the business and assets of the
Owner relevant to the Owner's performance of its part of this Agreement.
"Products" means such of the products listed in Schedule 1 as are at the date
of this Agreement in the range of BAIID products manufactured by or for the
Owner or sold by the Owner and all future developments thereof and any similar
or competing products and such other BAIID products as may from time to time
be agreed in writing by the parties.
"the Product Specification" means the Product description, specification, date
and drawings attached hereto as Schedule 1.
"the Purchase Order" means the Purchase Order for Products issued by the
Distributor to the Owner as detailed in Schedule 7.
"Restricted Information" means any information which is disclosed by either
party to the other pursuant to or in connection with this Agreement (whether
orally or in writing, and whether or not such information is expressly stated
to be confidential or marked as such).
"Technical Information" means in relation to the Products any methods,
techniques, discoveries, inventions (whether patentable or not), formulae,
formulations technical and product specifications, equipment descriptions,
plans, layouts, drawings, computer programs, assembly, quality control,
installation and operating procedures, operating manuals, technical and
marketing information, designs, data know-how and other information.
"Territory" means the countries listed in Schedule 2.
"Trade Marks" means:
(a) the trade marks registered in the name of the Owner of which
particulars are given in Schedule 3; and
(b) such other trade marks as are used by the Owner on or in relation to
the Products at any time during this Agreement.
"Year Of This Agreement" means the period of 12 months from the date of this
Agreement and each subsequent consecutive 12 month period of this Agreement.
1.2 Any reference in this Agreement to "writing" or cognate expressions
includes a reference to telex, cable, facsimile transmission or
comparable means of communication.
1.3 Any reference in this Agreement to any provision of a statute shall
be construed as a reference to that provision as amended, re-enacted
or extended at the relevant time.
1.4 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
2 APPOINTMENT OF DISTRIBUTOR
2.1 The Owner hereby appoints the Distributor as its exclusive
distributor for the resale of the Products in the Territory as per
Schedule 2, and the Distributor agrees to act in that capacity,
subject to the terms and conditions of this Agreement.
2.2 Subject as provided in Clause 2.6, the Owner shall not:
2.2.1 appoint any other person, firm or company in the Territory
as a distributor or agent for the Products; or
2.2.2 supply to any other person, firm or company in the
Territory any of the Products.
2.3 The Distributor shall be entitled to describe itself as the Owner's
"Exclusive Distributor" for the Products, but shall not hold itself
out as the Owner's agent for sales of the Products or as being
entitled to bind the Owner in any way.
During the term of this Agreement the Distributor shall not
manufacture or distribute any products which compete directly with
the Products.
2.4 The Distributor shall be entitled to sell any of the Products which
it purchases from the Owner through sales agent(s) or sub
distributors).
2.5 This Agreement shall entitle the Distributor to:
2.5.1 the same priority of supply in relation to the Products as
that afforded to the Owner's other exclusive distributors;
and
2.5.2 be indemnified by the Owner against all reasonable and
foreseeable losses or costs suffered by the Distributor,
or any sales agent or sub distributor appointed by the
Distributor, if any of the Products are sold in or
supplied to the Territory by ASI or any Reseller appointed
by ASI. In the case of sales made by ASI Resellers, ASI
shall be allowed 30 days to rectify the situation; and
2.5.3 10% of the invoice value of any Product which is sold
outside the Territory by the Owner, or any vendor
appointed by the Owner, for delivery in the Territory
(providing such sales have been influenced by the sales or
marketing efforts of the Distributor and/or the
Distributor has agreed to support such Product); and
2.5.4 sell the Product either inside or outside the Territory as
in Schedule 2 for delivery outside the Territory without
accounting to the Owner or any vendor appointed by the
Owner for such sales or income PROVIDED THAT the
Distributor shall not be entitled to actively seek
customers outside the Territory.
2.6 The Owner hereby agrees to offer to the Distributor on the same terms
as those of this Agreement any future updates, improvements or
further series in or of the design of the Product which may be
developed sold or licensed by the Owner, and at the Distributor's
request, to introduce any of the same into the Products by amending
the Product Specification and, where appropriate, the product price.
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2.7 in the event that the Owner at the Distributor's request agrees to
undertake product development at the expense of and/or for the
exclusive use of the Distributor then the parties will enter into
bona fide negotiations to conclude a development agreement on terms
to be agreed. The supply of all products to the Distributor by the
Owner in accordance with a product specification arising from such a
development agreement will be subject to the terms of this Agreement,
and otherwise as agreed between the parties.
3 TESTING AND ACCEPTANCE
3.1 The Owner shall carry out all necessary testing to ensure that the
Product complies with National Highway Traffic Safety Administration
("NHTSA") published requirements . The Owner shall certify prior to
delivery that each Product meets the relevant requirements.
3.2 Acceptance of the Products shall not take place until the Distributor
receives the manufacturers certificate of conformity referred to in
Clause 3.1 above.
4 SUPPLY OF THE PRODUCTS
4.1 The Owner shall use its best endeavours to supply the Products to the
Distributor in accordance with the Purchase Orders.
4.2 The Owner shall continue the manufacture, or subcontract such
manufacture, of all or any of the Products throughout the term of
this Agreement and shall not be entitled to make any alterations to
the specifications of the Products (including but not limited to the
technical specifications, size, shape or colour of the Products)
without prior consultation with the Distributor and the giving of 90
days prior written notice to the Distributor.
4.3 Any material and substantial default by the Owner in relation to any
Purchase order (and providing such default is not cured within 45
days) shall entitle the Distributor to treat this Agreement as
terminated.
4.4 The Distributor shall, in respect of each Purchase Order be
responsible for:
4.4.1 ensuring the accuracy of the Purchase Order; and
4.4.2 providing the Owner with any information which is
necessary in order to enable the Owner to fulfil any
special and reasonable requirements of the Distributor and
for the Owner to comply with all labelling, marketing and
other applicable legal requirements in the Territory; and
4.4.3 obtaining any necessary import licences, certificates or
origin or other requisite documents, and paying all
applicable customs, duties and taxes in respect of the
importation of the Products into the Territory and their
resale in the Territory.
4.5 The Owner warrants it can supply 20,000 (TWENTY THOUSAND) Products per
month.
The Distributor agrees to provide the Owner with a "120 day rolling
forecast" of the Distributor's best estimates of their Product needs.
The Distributor shall acknowledge that said forecast is in fact a
valid purchase order tendered to the Owner by the Distributor, and
the Owner shall so notify the Distributor of its acceptance of said
purchase order in writing. The Owner and the Distributor further
agree that said forecast can be increased or decreased without
penalty by a mutually agreeable percentage, estimated to be 10% of
the total order placed. The Distributor shall so inform the Owner of
said adjustment in volume(s) on a best efforts basis within 61 or
more days prior to shipment. Necessary cost adjustments shall be
identified, and where mutually agreeable, made.
After the expiry of the 12 month period following the Effective Date
the Distributor shall supply to the Owner estimates of its purchases
for the Territory for the following 6 months. The Owner recognises
that because of the uniqueness of the Products, the lack of a
mandated market and the need for the Distributor to create a market
the figures supplied can only be estimates although the Distributor
will use reasonable efforts to ensure that such figures are accurate.
4.6 Immediately upon receipt of each Purchase Order the Owner shall
inform the Distributor in writing and unless the Distributor is
notified in writing to the contrary within 7 days of receipt of any
Purchase Order the Owner shall be deemed to have accepted the same.
The Owner shall use best endeavours to meet the delivery date(s)
specified in the Distributor's Purchase Order and time of delivery
shall be of the essence and accordingly the Owner shall indemnify the
Distributor against any losses or costs the Distributor may suffer as
a result of any delay in delivery. The relevant cost shall be limited
to the late delivery provisions set out in the letter of credit for
the late order.
4.7 The title to any consignment of the Products shall pass to the
Distributor upon delivery as long as full payment has been made to
the Owner.
4.8 Risk of loss of or damage to any consignment of the Products shall
pass to the Distributor from the time of delivery Ex-Works.
4.9 The Owner shall supply to the Distributor (at no cost to the
Distributor) on or before 18th October 1993 12 (TWELVE) fully working
pre-production devices. However, the Distributor understands that
these devices will not have data logging capability and do not meet
NHTSA guidelines for such devices.
4.10 The Owner will design, develop, produce, test to NHTSA standards and
deliver the Products to the Distributor in accordance with this
Agreement.
4.11 The Owner shall be deemed to have taken all necessary actions, to
have examined the Product Specification and to have carried out all
other work necessary to have satisfied itself with regard to the
requirements of this Agreement and the Distributor, and the
feasibility of manufacture of the Product.
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4.12 The Owner shall not be entitled to make any claim against the
Distributor for additional payments in respect of any liability,
costs and/or expenses arising out of any failure by the Owner to
acquaint itself thoroughly with details of the Products or of their
intended working conditions and requirements.
4.13 It is a condition of this Agreement that each Product shall on
delivery conform in all respects to the Product Specification, be of
merchantable quality, fit for the purpose for which it is supplied,
and manufactured with sound materials and workmanship and free from
defects all in accordance with the NHTSA guidelines as referenced in
Clause 6.2.
4.14 The Owner acknowledges and agrees to support and share equally the
costs incurred in obtaining any necessary approval from any relevant
Approval Authority for any BAIID products. The parties agree to
verify costs with appropriate and acceptable documentation.
4.15 The Owner undertakes and warrants that:
4.15.1 All of the Products to be delivered by the Owner shall
comply with the NHTSA safety guidelines and all other
relevant safety requirements, standards and regulations
issued by the relevant Approval Authority and applicable
to the Products at the date of delivery.
4.15.2 The Owner shall carry out all testing, examining of the
Products to eliminate any risk to health or safety
resulting from use of the Products or any part thereof for
the purpose for which they are designed.
4.15.3 Where conditions exist (which the Owner is or should
reasonably be aware of) under which the Product use will
or may give risk to health and safety, the Owner shall
bring such conditions to the attention of the Distributor
in writing and the Owner will provide free of cost to the
Distributor adequate information about such conditions and
the safeguards which should be observed to ensure that the
Products can be used and subsequently be disposed of
safely and without risk to health and safety.
4.16 The Distributor warrants that it is capable of achieving sales
equivalent to 1% of the number of passenger vehicles registered in
the Territory during the 24 month period following the commencement
of regular supplies of the Products.
4.17 The Owner shall effect and maintain written or computer records to
provide a permanent record of:
4.17.1 Product batch identity by indelibly stamping month and
year of manufacture onto the Product's outer cases to
provided a capability to trace the place and date of
Product manufacture and delivery to the Distributor.
4.17.2 Changes in manufacture method, equipment, materials or
personnel that may affect the appearance, performance,
quality or reliability of the Products.
5 PRODUCT WARRANTY AND RETURNS
5.1 The Owner warrants, exclusively and without limitation to
Distributor, with respect to production and manufacturing and
warranty of quality and reliability of the Products that all Products
supplied hereunder will be free of all defects in material and
workmanship and will perform in accordance with the Owner's published
specifications and expectations and the Specification for the
Guarantee Period.
5.2 The Distributor's remedy, for breach of this warranty shall include,
and be limited to the repair or replacement of any Products found to
be defective. In all cases, Owner's liability under this warranty is
subject to the following conditions:
5.2.1 The Distributor will direct its Customers to return faulty
Product to the Distributor's Warehouse. Products that
Distributor considers to be defective shall be returned at
Distributor's expense to Owner's designated facility for
examination and testing. The Owner will reimburse
Distributor for said costs provided Owner's testing and
examination discloses a manufacturing defect. Such Product
shall be despatched in consolidated monthly shipments.
5.2.2 The Owner shall not be liable under this warranty if its
testing and examination disclose that the Products have
been modified or altered in any material manner after
shipment by Owner;
5.2.3 The Owner shall not be liable under this warranty if its
testing and examination disclose that the alleged defect
in the Products does not exist or was caused by the
Distributor's or any third person's misuse, neglect,
improper installation or testing, unauthorized attempts to
repair, or any other cause beyond the range of their
intended use, including Acts of God;
5.2.4 The Owner shall not be liable under any warranty under
this agreement with respect to any Products that are not
returned in their original shipping container or a
functionally equivalent container, or that have not been
packaged for return shipment in the exact manner described
in the instructions set forth in the applicable user
manual; and
5.2.5 If the Owner's testing and examination do not disclose a
defect warranted under this agreement then in that event
the Distributor shall not be entitled to any credits or
reimbursement and shall dispose of devices in accordance
with Owner's instructions.
5.3 The Owner will inspect all such returned Product and maintain and
provide, following any request from the Distributor, comprehensive
records of fault analysis data. The Owner will either replace with
new Products or repair and refurbish the rejected Product to a
reconditioned state by replacement of the styled outer case and
carton and any component parts as necessary to ensure the operation
in full conformity to the Product Specifications. Such repaired and
refurbished Product shall be subject to the terms of this Agreement
(including but not limited to the Guarantee Period).
5.4 The Owner and Distributor agree that their technical representatives
will meet at least once every three months to review overall warranty
return levels and the proportion of faults which can be reasonably
attributable to defective manufacture.
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5.5 The Distributor and the Owner agree to work together to improve
Product documentation in Purchase Order to reduce unnecessary
Customer rejects.
6 PRODUCT RECALL AND EPIDEMIC FAULT
6.1 If any of the Products manufactured by the Owner are found to have a
critical defect (for example failure attributable to manufacturing or
not meeting safety requirements) the Distributor shall advise the
Owner as to whether it is necessary to undertake a Product recall
programme. The Distributor as agent for the Owner (and the Owner
hereby irrevocably appoints the Distributor as its agent for such
purposes) shall carry out the Product recall programme and the Owner
shall be solely responsible for all costs incurred by the Distributor
in the course of undertaking such programme including, but not
limited to all reasonable labour, material, travelling time,
transport, inspection, advertising, printing, mailing and
administrative costs in connection therewith. Such costs shall be
paid by the Owner to the Distributor on receipt of any written demand
from the Distributor and the Owner shall also pay any payments on
account reasonably requested by the Distributor. The Distributor
shall at all times properly, reasonably and diligently act to protect
the Owner's best interests and to ensure that all costs are kept to a
minimum level.
6.2 Where more than three successive delivery consignments of the Product
are rejected by the Distributor for the same reason or where the
Distributor's service indicates a defect rate in excess of eight per
cent (8%) during the first 12 months of this Agreement (and
thereafter four per cent (4%) of the delivered quantity during the
Guarantee Period, the Owner may be required by written notice by the
Distributor to suspend production of the Products and not to deliver
any Products already produced and ready for delivery.
6.3 In the event of such suspended manufacture being required all stocks
of the Products finished and work in progress held by the Owner shall
be quarantined pending reinspection by the Distributor according to
any inspection procedure mutually agreed between the Owner and the
Distributor. The Owner shall remove and replace any stocks of
Products held by the Distributor or Customers with known good
batches, or adopt such other arrangements as may be mutually agreed
with the Distributor.
6.4 The Owner shall not, without prior written consent of the
Distributor, recommence manufacture or delivery of Products following
suspension of production pursuant to this Clause 6.
7 DELIVERY AND LIQUIDATED DAMAGES FOR LATE DELIVERY
7.1 Products ordered by the Distributor shall be delivered by the Owner
on an Ex-works basis to the Distributor's carrier.
7.2 The Owner shall give the Distributor not less than five (5) working
days notice of the readiness of each despatch for collection.
7.3 The Owner agrees that under this Agreement time is of the essence for
delivery of the Products by the delivery date specified in the
Purchase Order. In the event of any stoppage or delay in delivery,
the Owner will take all reasonable steps to overcome the stoppage or
delay and will inform the Distributor in writing immediately should
any stoppage or delay occur, the likely period of such stoppage or
delay, and when either ceases.
7.4 Subject to Clause 21 or provided that the Distributor does not
request a delay in delivery of the Products, if the Owner fails to
meet the delivery dates specified in the Distributor's Purchase Order
or any revised delivery dates agreed in writing, and if the
Distributor shall not exercise its right under this Agreement to
reject the Products so delivered late, then, provided that the
Distributor shall have notified the Owner of the late delivery within
10 days of the due date for delivery, the Owner shall pay to the
Distributor as and by way of liquidated damages in respect of such
late delivery an amount equal to one per cent (1%) of the Invoice
Value of all of the Products which the Owner is late in delivering,
for each complete week or part of a week between the Distributor's
required delivery date and the actual delivery date of the Product.
The liquidated damages due under this Clause may be satisfied (at the
absolute discretion of the Distributor) by the free issue of Products
(as may be specified by the Distributor) equivalent in value to the
amount of the liquidated damages which would otherwise have been
payable.
7.5 The Owner shall at its own expense maintain stocks of production
materials and components for the Products of an amount equivalent to
two month's forward Purchase Orders for the Products from time to
time.
7.6 Notwithstanding the provisions of Clauses 7.3 and 7.4 in the event of
there being three (3) consecutive late deliveries of consignments of
Products the Distributor shall have the right to cancel any
outstanding Purchase Order without further obligation on the part of
the Distributor to accept delivery and pay for, the whole or any part
of any unexecuted part of any Purchase Order.
7.7 Rejection of the Products for late delivery as aforesaid shall in no
way relieve either party from any other obligation under this
Agreement.
7.8 In the event of any delay in delivery as aforesaid, the Owner shall
use its best endeavours to overcome the reasons for such delay and
shall keep the Distributor fully informed of such reasons and the
likelihood of such delay continuing.
7.9 All the above terms shall be incorporated into any letter of credit
issued in accordance with Clause 9.
8 PRICE AND PRICE CHANGES
8.1 The price of the Product at the commencement of this Agreement shall
be as shown in the Purchase Order and Schedule 4 and shall be
Ex-Works. The Owner and the Distributor shall negotiate for new or
developed Product and such price shall be reasonable and, if
appropriate, be competitive with or relate to the Prices.
8.2 The Owner shall give the Distributor not less than 3 month's notice
in writing of any alteration in such list prices, and the prices as
so altered shall apply to all Products ordered on and after the
applicable date of the increase. Any increase shall not exceed more
than 2.0% of the then current price for the Product.
8.3 All prices for the Products are exclusive of any applicable United
States value added or any other sales tax, for which the Owner shall
be additionally liable.
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8.4 The Products shall be packed and sent by the method of transport
designated by the Distributor's Purchase Order in accordance with the
packing and transport requirements contained in the Product
Specification.
8.5 The price of the product shall be inclusive of packing.
8.6 The price for any additional types of the BAIID Products introduced
by the Owner that may subsequently be agreed to be included in the
Product Specification shall first be discussed and agreed between the
parties and confirmed in writing as an amendment to this Agreement
notwithstanding Clause 8.2.
8.7 In the event that during the period of this Agreement the Owner is
unable to supply at competitive prices and/or where falling market
selling prices are experienced by the Distributor then both parties
agree to consult on remedial action and future life of the Product.
8.8 All payments shall be made by the Distributor in sterling by transfer
to such bank account as the Owner may from time to time notify in
writing to the Distributor. The conversion rate for sterling shall be
deemed to be in accordance with the daily published rate in the Wall
Street Journal.
9 PAYMENT TERMS
9.1 The Distributor shall provide concurrent with its purchase order, of
the type and kind set out in Schedule 7, and 120 days prior to
delivery a letter of credit that shall be irrevocable, divisible,
assignable, and transferable upon delivery of the Products Ex-Works.
9.2 Any payment made shall be without prejudice to the Distributor's
rights under this Agreement and shall not relieve the Owner from any
of its other obligations.
9.3 The Distributor shall be entitled to offset amounts due by it to the
Owner with amounts due by the Owner to the Distributor or to any of
its Associated Companies.
10 MARKETING OF THE PRODUCTS
10.1 The Distributor shall diligently promote the sale of the Products
throughout the Territory and, subject to compliance by the Owner of
its obligations under Clause 4.1, to satisfy market demand therefor.
10.2 The Distributor shall be entitled to promote and market the Products
in the Territory in such manner as it may think fit, and in
particular shall be entitled to resell the Products to its customers
at such prices as it may determine
11 SUPPORT AND TRAINING
11.1 The Owner shall provide samples of brochures and advertising material
it may have in order to assist the Distributor in its development and
printing or manufacture of marketing and promotion materials, cost of
such materials shall be borne solely by the Distributor. In all
instances Distributor shall be solely responsible for such materials
without limitation used by or otherwise consumed by its organization
including but not limited to its dealers within the territory. Owner
may appoint a company to assist and/or develop point of purchase
products, systems or processes to increase awareness and aid in
training with regard to use and operation of the Products. The Owner
shall endeavour to answer as soon as possible any technical enquiries
concerning the Products which are made by the Distributor or its
customers.
11.2 During the first Year of this Agreement;
11.2.1 the Owner shall make available to the Distributor (at any
such time as may be mutually agreed and for a period not
exceeding 7 working days) the services of a suitably
qualified employee of the Owner to assist the Distributor
in the technical support of the Products; and
11.2.2 the Distributor shall be entitled to send to the Owner's
premises (at such time as may be agreed and for a period
not exceeding 7 working days) up to 6 suitably qualified
employees of the Distributor for training by the Owner in
matters relating to the Products and their marketing.
11.3 The services to be provided by the Owner pursuant to Clauses 11.1 and
11.2 shall be free of charge, but the Distributor shall remain liable
for all salaries and other employment costs of, and all travelling,
accommodation and other expenses incurred, by employees of the
Distributor who are sent to the Owner's premises.
11.4 In any case where employees of either party visit the premises of the
other for the purposes of this Agreement, the first mentioned party
shall:
11.4.1 procure that each such employee complies with all
security, safety and other regulations which apply to or
are in force at the other party's premises; and
11.4.2 indemnify the other party against any direct damage to
property of the other party which is caused by any act or
omission of any such employee at the other party's
premises.
11.5 The Owner shall provide similar support and training for developments
of the Product and any other BAIID product made the subject of this
Agreement. The period, location, extent and type of such training
shall be as agreed and recorded by both parties in writing.
11.6 The Distributor shall be solely responsible for the purchase of the
necessary equipment as defined in Schedule 6 in order to fulfil its
obligations under this Agreement.
8
12 PRODUCT AND SERVICE INFORMATION
12.1 The Owner agrees to supply the Distributor with the following
information to enable the Distributor to service the Product and
amend documents and manuals as maybe required:
12.1.1 Service manual and service information, including photo
positive/negatives of all technical diagrams and
photographs.
12.1.2 Such other information or data which the Distributor may
reasonably require to market and service the Products.
12.1.3 Software information and schematics.
13 AFTER SALES SERVICE AND SPARES
Spares Availability
13.1 For the purpose of the provision of an after sales service and spares
resource, the Owner undertakes:
13.1.1 to the extent they are available to maintain the
availability of equipment, components, tools, jigs and
fixtures or equivalent components, for use in the service
and maintenance of the Products for a period of seven (7)
years from the date of supply of the last Product to the
Distributor.
13.1.2 with best efforts to expedite delivery of spares for the
Products and to maintain adequate stocks and facilities
for marketing and distributing the same.
13.1.3 to maintain the availability of drawings and design data
of the Products to enable spares to be specified and
manufactured.
13.1.4 to maintain during the service life of the Products
service documentation and manuals, including comprehensive
parts lists and other such information and data which may
reasonably be necessary to service and maintain Products.
13.2 The Owner shall without charge to the Distributor, provide to the
Distributor in respect of each of the Products purchased by the
Distributor pursuant to the Agreement, the first 20 copies of the
technical service documentation.
14 CONTINUITY OF SUPPLY
14.1 To enable the Distributor to have a continuous source of supply of
the Products, it is agreed that in the event that:
14.1.1 the Owner intends to cease or ceases the manufacture or
supply of the Products, whether or not in breach of its
obligations under this Agreement; or
14.1.2 there is a Material Change of Ownership of the Owner (and
providing the Distributor can demonstrate to the
reasonable satisfaction of the Owner that the
Distributor's commercial interests have been adversely
affected); or
14.1.3 any of the events described in Clauses 19.2 and 19.3 occur
in relation to the Owner; or
14.1.4 the Owner fails to meet its obligations under this
Agreement consistently to supply Products in compliance
with the Product Specification or to supply the Products
on the required delivery dates;
then, and notwithstanding any other right of action which the
Distributor may have or may have exercised under this Agreement, the
Distributor shall have the right to exercise any or all of the rights
contained in Clause 14.2.
14.2 Subject to the payment by the Distributor of a mutually agreed
royalty the Distributor shall be entitled to exercise the following
rights:
14.2.1 The right to use the Technical Information of the Owner at
its own cost to provide the Distributor with such copies
of the Technical Information as may reasonably be
necessary for the purposes of enabling the Distributor to
manufacture or have manufactured and supply the Products.
14.2.2 The right to have a licence under the Owner's Intellectual
Property to manufacture, have manufactured and supply the
Products.
14.2.3 The right to require the Owner at the Owner's cost to
procure for the Distributor the right to use any Technical
Information of any other person and a licence under any
Intellectual Property, titled to which rests in such other
person, and in respect of which and to the extent that the
Owner has been granted rights and licences, for the
purposes of enabling the Distributor to manufacture, have
manufactured and to supply the Products.
15 INTELLECTUAL PROPERTY, TRADE MARKS & LOGO
15.1 The Owner hereby authorises the Distributor to register as the Owner
of the Trade Marks in the Territory and to use the Trade Marks on or
in relation to the Products for the purposes only of exercising its
rights and performing its obligations under this Agreement and the
Owner shall not so authorise any other person, firm or company
without the prior written consent of the Distributor
15.2 The Distributor shall be entitled with the permission of the Owner to
make any modifications to the Product's packaging (such modifications
to be the property of the Distributor and such permission not to be
unreasonably withheld).
15.3 The Distributor shall, at the expense of the Owner, take all such
steps as the Owner may reasonably require to assist the Owner in
maintaining the validity and enforceability of the Intellectual
Property of the Owner during the term of this Agreement.
9
15.4 The Distributor shall promptly and fully notify the Owner of any
actual or threatened infringement in or outside the Territory of any
Intellectual Property of the Owner which comes to the Distributor's
notice, and of any claim by any third party so coming to its notice
that the importation of the Products into the Territory, or their
sale therein, infringes any rights of any other person, and the
Distributor shall at the request and expenses of the Owner do all
such things as may be reasonably required to assist the Owner in
taking or resisting any proceedings in relation to any such
infringement or claim.
16 WARRANTIES AND LIABILITY
16.1 Subject as herein provided the Owner warrants to the Distributor that:
16.1.1 it owns all the Intellectual Property and all other
proprietary rights in the Products and that the Owner has
full right and authority to grant the rights given to the
Distributor under the terms of this Agreement; and
16.1.2 the Trade Marks of which registration particulars are
given in Schedule 3 are registered in the name of the
Owner and that it has disclosed to the Distributor all
trade marks and trade names used by the Owner in relation
to the Products at the date of this Agreement; and
16.1.3 there are no third party rights in the Territory which
would or might render the sale of the Products, or the use
of any of the Trade Marks on or in relation to the
Products, unlawful.
16.2 The Owner shall indemnify the Distributor against any and all losses
or costs incurred by the Distributor in the event of any breach of
the Owner's warranty in Clause 16.1.1 or any other warranty given by
the Owner in this Agreement.
16.3 The Owner shall indemnify the Distributor against product liability,
claims for loss or damage to property or injury or death to persons
arising from or caused by any manufacturing defect in any of the
Products.
16.4 The Owner shall be liable to the Distributor by reason of any
representation or implied warranty, condition or other term or any
duty at common law, or under the express terms of this Agreement, for
any foreseeable consequential loss or damage (whether for loss of
profit or economic loss) arising out of or in connection with any act
or omission of the Owner relating to the manufacture or supply of the
Products.
16.5 The Owner shall, at its own expense, defend any suit brought against
the Distributor in so far as based upon a claim that any of the
Products in the form as supplied by the Owner hereunder directly
infringes any Intellectual Property of any other person and shall
indemnify the Distributor against any final award of damages and
costs in such suit. This indemnity is conditional upon the
Distributor giving the Owner notice in writing as soon as possible of
any suit for infringement, full authority at the Owner's option to
settle or conduct the defence thereof and such reasonable assistance
at the cost of the Owner in the said defence. In the event that the
Products supplied hereunder by the Owner in the form as specified
above are in such suit held to constitute infringement and their use
is prohibited, the Owner shall, at its own expense either procure for
the Distributor the right to continue their use or shall replace
within a reasonable time period the infringing products by
non-infringing Products and such replacement Products shall comply
with any conditions issued by any Approval Authority at that time. In
the event that the Owner is unable, after using its best endeavours
to do so, to procure such right or replace such Products as
aforesaid, the Owner shall against return of such Products grant the
Distributor a credit or refund for the price paid by him thereof (at
the sole discretion of the Distributor) for the Invoice value.
16.7 The Distributor shall take all reasonable measures to ensure that its
contractors, subcontractors, agents, assigns, dealers,
representatives or any other third party appointed by the Distributor
("Resellers") properly and diligently carry out their
responsibilities (such measures to include but not be limited to
Reseller agreements which contain back to back provisions relating to
the terms of this Agreement) and the Distributor shall cooperate in
any reasonable action which the Owner might wish to take against such
Resellers for any breach of such agreements.
Neither the Owner nor the Distributor shall be responsible for any
acts or omissions of the Resellers.
The Distributor shall indemnify the Owner against any foreseeable
costs or expenses incurred by the Owner as a direct result of any
breach by the Distributor of the terms of this Agreement.
17 TITLE AND RISK
17.1 Acceptance of the Products shall not take place until the receipt by
the Distributor of the certification referred to in Clause 3.1.
17.2 Title in the Products shall pass to the Distributor on delivery
Ex-works the Owner.
17.3 If the Distributor goes into liquidation, other than for the purposes
of reconstruction or amalgamation, the property in the Products, for
which payment has not been made by the Distributor, shall revert to
the Owner.
17.4 The Owner shall be responsible for the safety and protection of any
materials or other property of the Distributor which may be issued to
the Owner in connection with this Agreement and shall indemnify the
Distributor against loss or damage thereto. The Distributor shall be
similarly liable for Owner's property issued to the Distributor.
17.5 The Owner shall clearly ▇▇▇▇ all such items so delivered as the
property of the Distributor, store them separately and shall submit
stock returns thereof as and when requested by the Distributor. The
Distributor shall be similarly liable for Owner's property issued to
the Distributor.
18 CONFIDENTIALITY
18.1 Except as provided by Clauses 18.2 and 18.3 both parties shall at all
times during the continuance of this Agreement and after its
termination:
18.1.1 use their best endeavours to keep all Restricted
Information confidential and accordingly not to disclose
any Restricted Information to any other person; and
10
18.1.2 not use any Restricted Information for any purpose other
than the performance of the obligations under this
Agreement.
18.2 Any Restricted Information may be disclosed by either party to:
18.2.1 any customers or prospective customers;
18.2.2 any governmental or other authority or regulatory body; or
18.2.3 any employees of the Distributor or the Owner or of any of
the aforementioned persons on a need to know basis,
to such extent only as is necessary for the purposes contemplated by
this Agreement, or as is required by law and subject in each case to
the parties using their best endeavours to ensure that the person in
question keeps the same confidential and does not use the same except
for the purposes for which the disclosure is made.
18.3 Any Restricted Information (or only part thereof if all the
Restricted Information is not needed) may be used by either party for
any purpose, or disclosed by either party to any other person, to the
extent only that:
18.3.1 it is at the date hereof, or hereafter becomes, public
knowledge through no fault of either party (provided that
in doing so neither party shall disclose any Restricted
Information which is not public knowledge); or
18.3.2 it can be shown by the receiving party, to the reasonable
satisfaction of the other, to have been known to it prior
to it being disclosed.
19 DURATION AND TERMINATION
19.1 This Agreement shall come into force on the Effective Date and,
subject as provided in Clauses 19.2 and 19.3, shall continue in force
for a fixed term of 5 years and thereafter unless or until terminated
by either party giving to the other not less than 12 months' notice
expiring on or at any times after the end of that period. SAVE THAT
if during the initial 5 year term any or all of the Products have
become mandated, or that substantial or material evidence can be
produced by the Distributor to show that any or all of the Products
are in the process of becoming mandated in any of the countries which
make up the Territory or if the Distributor achieves sales equivalent
to 1% of the number of passenger vehicles registered in the
Territory, this Agreement shall be automatically renewed on the same
terms as those specified in this Agreement for a further 5 years
following the expiry of the initial 5 year term.
The Distributor warrants that it has the resources and wherewith all
to properly and effectively sell in the Territory consistently with
this Agreement.
19.2 The Distributor shall be entitled to terminate this Agreement:
19.2.1 if the Owner is in breach of Clause 4.9; or
19.2.2 by giving not less than 90 days written notice to the
Owner (and providing the Distributor can demonstrate to
the reasonable satisfaction of the Owner that the
Distributor's commercial interests have been adversely
affected) if:
(a) there is at any times a Material Change of Ownership;
or
(b) the Owner at any time sells, licences, assigns or in
any way deals with the Intellectual Property; or
(c) if the Owner changes the manufacturer of the Products.
In addition to the above rights of termination the Distributor may
claim liquidated damages from the Owner limited to a maximum sum of
(pound)250,000 (TWO HUNDRED AND FIFTY THOUSAND POUNDS) PROVIDED THAT
the Distributor can show that deliberate steps have been taken to
damage the Distributor's commercial interests and as a result of such
steps damage has in fact been suffered by the Distributor.
19.3 Either party shall be entitled forthwith to terminate this Agreement
by written notice to the other if:
19.3.1 that other party commits any breach of any of the
provisions of this Agreement and, in the case of a breach
capable of remedy, fails to remedy the same within 30 days
after receipt of written notice giving full particulars of
the breach and requiring it to be remedied;
19.3.2 if the other shall convene a meeting of its creditors or
if a proposal shall be made for a voluntary arrangement
within Part 1 of the Insolvency ▇▇▇ ▇▇▇▇ or a proposal for
any other composition, scheme or arrangement with (or
assignment for the benefit of)its creditors or it the
other shall be unable to pay its debts within the meaning
of section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or if a trustee,
receiver, administrative receiver or similar officer is
appointed in respect of all or any part of the business or
assets of the other party or if a petition is presented or
a meeting is convened for the purpose of considering a
resolution or other steps are taken for a the winding up
of the other party or for the making of an administration
Purchase Order (otherwise than for the purpose of an
amalgamation reconstruction);
19.3.3 anything analogous to any of the foregoing under the law
of any jurisdiction occurs in relation to that other
party; or
19.3.4 that other party ceases, or threatens to cease, to carry
on business.
19.4 Any waiver by either party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent
breach of the same or any other provision thereof.
11
19.5 The rights to terminate this Agreement given by this Clause shall be
without prejudice to any other right or remedy of either party in
respect of the breach concerned (if any) or any other breach.
20 CONSEQUENCES OF TERMINATION
20.1 Upon the termination of this Agreement due to the default of either
party:
20.1.1 the Owner shall be obliged (if so requested by the
Distributor) to repurchase from the Distributor all or
part of any stocks of the Products then held by the
Distributor at their Invoice Value ; provided that:
(a) the Owner shall be responsible for arranging and for
the cost of, transport and insurance; and
(b) the Distributor may sell stocks for which it has
accepted Purchase orders from customers prior to the
date of termination, or in respect of which the Owner
does not repurchase within 30 days after the date of
any request from the Distributor (such sale shall be
without prejudice to the Distributor claiming from
the Owner the price stated in Clause 20.1.1) and for
those purposes and to that extent the provisions of
this Agreement shall continue in full force and
effect;
20.1.2 the Distributor shall at the Owner's expense within 30
days send to the Owner or otherwise dispose of in
accordance with the directions of the Owner all samples of
the Products and any advertising, promotional or sales
material relating to the Products and produced by the
Owner then in the possession of the Distributor;
20.1.3 outstanding unpaid invoices rendered by the Owner in
respect of the Products shall be payable subject to the
agreed payment terms as shall those invoices in respect of
Products delivered;
20.1.4 the Distributor shall cease or to make any use of the
Trade Marks other than for the purpose of selling stock
the Owner has not repurchased;
20.1.5 the Distributor shall be entitled (subject to termination
taking place due to the fault of the Owner) to receive a
payment from the Owner for compensation for loss of
distribution rights, loss of goodwill or any similar loss
the amount of such payment shall be the equivalent to the
Invoice Value of all Purchase Orders for the 12 month
period prior to termination or (pound)250,000 (TWO HUNDRED
AND FIFTY THOUSAND POUNDS) (whichever is the greater sum).
This payment shall be made immediately following receipt
of a written demand from the Distributor;
20.1.6 subject as otherwise provided herein and to any rights or
obligations which have accrued prior to termination,
neither party shall have any further obligation to the
other under this Agreement.
20.2 Notwithstanding termination of this Agreement, Clauses 5, 6, 7, 12,
13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24 and 25 shall survive and
continue to have full effect.
21 FORCE MAJEURE
21.1 If either party is affected by Force Majeure it shall forthwith
notify the other party of the nature and extent thereof.
21.2 Neither party shall be deemed to be in breach of these terms or
otherwise be liable to the other, by reason of any delay in
performance, non-performance, or any of its obligations hereunder to
the extent that such delay or nonperformance is due to any Force
Majeure of which it has notified he other party; and the time for
performance of that obligation shall be extended accordingly.
21.3 If a condition of Force Majeure affecting a party shall continue for
a period of 3 months or shall intermittently occur for 3 months in
any period of 6 months, then the other party shall have the right to
suspend the operation of this Agreement until the condition of Force
Majeure shall have ceased or is unlikely to resume, or at its option,
to terminate this Agreement forthwith.
22 NATURE OF AGREEMENT
22.1 Subject to any express agreement to the contrary, neither party may
assign, mortgage, charge or dispose of any of its rights hereunder,
or subcontract or otherwise delegate any of its rights and
obligations under this Agreement without the prior written consent of
the other (such consent not to be unreasonably withheld).
22.2 Save as expressly agreed, nothing in this Agreement shall create, or
be deemed to create, a partnership or the relationship of principal
and agent or employer and employee between the parties.
22.3 This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof, supersedes all previous
agreements and understandings between the parties with respect
thereto and may not be modified except by an instrument in writing
signed by the duly authorised representatives of the parties.
22.4 Each party acknowledges that, in entering into this Agreement, it
does not do so on the basis of, and does not rely on, any
representation, warranty or other provision except as expressly
provided herein, and all conditions, warranties or other terms
implied by statute or common law are hereby excluded to the fullest
extent permitted by law.
22.5 If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable the invalidity or unenforceability of such provisions
shall not affect the other provisions of this Agreement and all
provisions not affected by such invalidity or unenforceability shall
remain in full force and effect. The parties hereby agree to attempt
to substitute for any invalid or unenforceable provision a valid or
enforceable provision which achieves to the greatest extent possible
the economic legal and commercial objectives of the invalid or
unenforceable provision.
12
22.6 The waiver by either party of a breach or default of any of the
provisions of this Agreement by the other party shall not be
construed as a waiver of any succeeding breach of the same or other
provisions nor shall any delay or omission on the party of either
party to exercise or avail itself of any right power or privilege
that it has or may have hereunder operate as a waiver of any breach
of default by the other party.
22.7 The provisions of this Agreement, and the rights and remedies of the
other parties under this Agreement, are cumulative and are without
prejudice and in addition to any rights or remedies a party may have
at law or in equity; no exercise by a party of any one right or
remedy under this Agreement, or at law or in equity, shall (save to
the extent, if any, provided expressly in this Agreement, or at law
or in equity) operate so as to hinder or prevent the exercise by it
of any other such right or remedy.
23 DISPUTE RESOLUTION AND PROPER LAW
23.1 If any dispute is not resolved through negotiation the parties will
attempt in good faith to resolve the dispute through an ADR
Procedure. The Defendant shall be entitled to choose the country in
which the ADR procedure shall take place.
23.2 This Agreement shall be governed by and construed in all respects in
accordance with the Laws of England, and each party hereby submits to
the exclusive jurisdiction of the court selected by the Defendant.
24 NOTICES AND SERVICE
24.1 Any notice or other information required or authorised by this
Agreement to be given by either party to the other may be given by
hand or sent (by first class prepaid post, telex, cable, facsimile
transmission or comparable means of communication) to the other party
at the addressed referred to in Clause 24.4.
24.2 Any notice or other information given by recorded post pursuant to
Clause 24.4 which is not returned to the sender as undelivered shall
be deemed to have been given on the second day after the envelope
containing the same was so posted; and proof that the envelope
containing any such notice or information was properly addressed,
prepaid, registered and posted, and that it has not been so returned
to the sender, shall be sufficient evidence that such notice or
information has been duly given.
24.3 Any notice or other information sent by telex, cable, facsimile
transmission or comparable means of communication shall be deemed to
have been duly sent on that date of transmission, provided that a
confirming copy thereof is sent by first class prepaid post to the
other party at the address referred to in Clause 24.4 within 24 hours
after transmission. If notice is sent by fax or telex receipt of
transmittal must be retained.
24.4 Service of any legal proceedings concerning or arising of this
Agreement shall be effected by causing the same to be delivered to
the Company Secretary of the party to be served at its principal
place of business or its registered office, or to such other address
as may from time to time be notified in writing by the party
concerned.
25 NOTIFICATION
25.1 As soon as practicable after the execution of this Agreement the
parties shall procure that:
25.1.1 this Agreement is notified to the Commission of the
European Communities in accordance with Regulation 17 of
1962 of the Council of the European Communities; and
25.1.2 particulars of this Agreement are duly furnished to the
Director General of Fair Trading in accordance with the provisions of
the Restrictive Trade Practices ▇▇▇ ▇▇▇▇; and accordingly none of the
provisions of this Agreement other than this provision shall come
into force, and none of the parties shall give effect thereto, until
the date after both such steps have been taken.
26 DATA
26.1 In return for the supply free of charge to the Distributor of all
necessary data recovery equipment, know-how and training the
Distributor shall pay to the Owner 100. of any revenue received by
the Distributor for the sale of any data recovered from the BAIID
Products.
26.2 Such payments shall be made every calendar quarter in arrears (the
first quarter being January-March) and following receipt by the
Distributor of such revenue sums as cleared funds.
AS WITNESS the hands of the duly authorised representatives of the parties the
day and year first above written.
13
SCHEDULE 1
PRODUCTS/SPECIFICATIONS
Products
SENS-0-LOCK 1000, 2000 and 3000 series.
Specification
National Highway Traffic Safety Administration Docket No. 91-07,
Notice 2, Federal Register Vol. 57, No. 67, April 7, 1992.
------------------------------------------------------------------
SCHEDULE 2
TERRITORY
* Austria
* Armenia
* Bulgaria
* Belgium
* Czechoslovakia
* Denmark
* Finland
* France
* Germany
* Gibraltar
* Greece
* Hungary
* Irish Republic
* Italy
* Liechtenstein
* Luxembourg
* Netherlands
* Poland
* Portugal
* Romania
* Russia
* Slovenia
* Spain
* Sweden
* Switzerland
* Turkey
* United Kingdom
All EC territories listed above shall be subject to the exclusive
appointment provisions and term provisions contained in Clauses 2 and 19 of
the Agreement.
All the * territories shall be subject to the exclusive appointment
provisions in Clause 2 of the Agreement for a period of 12 months from the
Effective Date. Should the Distributor be able to demonstrate on or before
the expiry of such 12 month period (or a 6 month notice period of the
appointment of an exclusive distributor to the relevant territory following
the expiry of such 12 month period) that it has made or there is a
reasonable prospect of it making material sales into those territories, then
those territories shall be subject to the exclusive appointment provisions
and term provisions contained in Clauses 2 and 19 of the Agreement as from
the Effective Date.
The exclusive appointment to the * territories shall continue until the
proper expiry of a 6 month notice of the appointment of an exclusive
distributor to the relevant territory or the term in Clause 19 of the
Agreement (whichever is the earlier event).
-------------------------------------------------------------------------------
SCHEDULE 3
TRADE ▇▇▇▇▇
▇▇▇▇ Country Number Class Goods for which reg'd
Sens-O-Lock
14
SCHEDULE 4
PRICES
The following pricing shall be operative with regard to the Sens-O-Lock series
#1000, 2000 and 3000 with respect to the attached exclusive distributor
agreement:
The following prices are exworks (to the carrier from the manufacturers
facility).
The assumption utilized in the pricing shall be that a full container can
accommodate 6000 to ▇▇▇▇ ▇▇▇▇-▇-▇▇▇▇ devices together with packing and
packaging and shall be packed accordingly.
The pricing discounts will increase with the number of containers shipped to
the distributor in accordance with the following schedule:
All individual units shall be sold at $250 USD plus shipping.
1 to 4 containers 5% discount (or $12.50 USD) $237.50 USD per unit
(Sens-O-Lock device).
5 to 9 containers 8% discount (or $20.00 USD) $230.00 USD per unit
(Sens-O-Lock device).
10 or more containers 10% discount (or $25.00 USD) = $225.00 USD per unit
(Sens-O-Lock device).
Any partial containers ordered will be billed out at the discount prevailing
for that entire shipment (order).
-------------------------------------------------------------------------------
SCHEDULE 5
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION DOCKET
15
SCHEDULE 6
DISTRIBUTOR EQUIPMENT
The Sens-O-Lock Installation support package consists of the following:
A. P.C. COMPUTER SYSTEM (IBM COMPATIBLE) CONSISTING OF:
1 - 386 DX-33 PC System
2 - 4 MB RAM Memory
3 - 1.44 MB (3 1/211) Floppy ▇▇▇▇ ▇▇▇▇▇
▇ - ▇▇▇ ▇▇ Hard ▇▇▇▇ ▇▇▇▇▇
▇ - ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ - ▇▇▇ ▇▇▇ x 480 Monitor & Display Card
7 - 120 MB Tape ▇▇▇▇-▇▇ ▇▇▇▇▇
▇ - ▇▇▇▇▇ ▇▇▇▇
9 - Mouse or Track-Ball (Microsoft Compatible)
10 - 101-Keyboard (Enhanced)
11 - Printer, Dot Matrix
12 - Uninterruptable Power Supply (220/11OV/60 Hz)
13 - Power Auto-On Switch
14 - Noise and Surge Power Protector Plug Strip
15 - Interconnecting Cables
B. SOFTWARE
1 - MS Dos 5.0
2 - A.S.I. Proprietary Software TM (Sens-O-Lock) BAIID
3 - A.S.I. Systems Support Software Series)
C. EQUIPMENT
1 - Alcohol Breath Simulator
2 - Tamper Proof Tools
D. DOCUMENTS
1 - Installation Instructions
2 - Operation Instructions
--------------------------------------------------------------------------------
SCHEDULE 7
PURCHASE ORDER
16
SIGNED for and on behalf of Alcohol Sensors International, Ltd.:
Signed...............................................
Printed Name.........................................
Title................................................
SIGNED for and on behalf of
Digital Vehicle Security Systems
Limited
Signed...............................................
Printed Name.........................................
Title................................................
17