DISTRIBUTORSHIP AGREEMENT
This agreement made as of the 28th day of Dec. 1995, by and between TRB
Systems Inc., having its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (hereinafter called "TRB") and ▇▇. ▇▇▇▇▇▇ ▇. and
Gira ▇. ▇▇▇▇▇▇▇ with their address at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇ hereinafter called DISTRIBUTOR).
The parties acknowledge that TRB owns or controls patents, trademarks,
tradenames and known-how relating to bicycles with variable speed lever
action drive and their manufacture in a variety of lines of lever drive
bicycles utilizing proprietary designs, such items hereinafter known as
the "Products" or "Bicycles". The parties further acknowledge that the
DISTRIBUTOR will be a part of a distribution system selling the Products,
and that a quality uniform program for the Product, including sales
procedures, and other business practices are necessary for the development
of the persons involved in the distribution and sales for development of
the Product. The DISTRIBUTOR acknowledges that a failure of performance
on its part might damage the total good will and development of the
Product.
In consideration of the foregoing, and of the mutual covenants, terms and
conditions hereinafter set forth, the parties hereto mutually agree as
follows:
ARTICLE ONE - PRODUCTS AND PRODUCTS BY APPOINTMENT
1.01 PRODUCTS: The products covered in this Agreement are all bicycle,
bicycle related and accessory products marketed by TRB, now and hereafter,
all products that TRB has and will develop in the future.
1.02 NATURE OF APPOINTMENT: The appointment of the DISTRIBUTOR shall
be exclusive as to the right to make sales of the Product of any type
in his Territory, subject to the right of TRB to make sales in the
Territory as follows:
a. Sales made by TRB to Dealers or Customers for delivery in the
Territory shall obligate TRB to pay the DISTRIBUTOR (if the DISTRIBUTOR
is not in default) an amount equal to the difference between the Product
Unit Price and the amount charged by TRB as the product Unit Price to
the Customer (i.e. the invoice amount less Service Cost and Taxes)
except infomercial sales by TRB. It is the intention that in such a
situation the DISTRIBUTOR will receive the same net profit as if he
had actually sold the Product himself except infomercial sales by
TRB.
b. If TRB makes a sale in the Territory for delivery outside of the
Territory there shall be no compensation due the DISTRIBUTOR.
c. In the event notice of termination is given to the DISTRIBUTOR
pursuant to the terms hereinafter provided, TRB or its agent may
sell any of the Product within the Territory without any financial
obligation to make payment to the DISTRIBUTOR after termination.
1.03 TERRITORY: The territory included in this Agreement will be those
geographic areas specified in Exhibit I.
ARTICLE TWO - PERFORMANCE
2.01 DISTRUBUTOR COMMITMENT: DISTRIBUTOR agrees to use its best efforts
to develop and expand the market for the Products within the Territory
and is required to purchase a minimum number of units of the product which
shall he sold only in the Territory during each twelve month period during
the term of this Agreement, as specified in Exhibit II.
2.02 DISTRIBUTOR PERFORMANCE REQUIREMENTS: The DISTRIBUTOR agrees to meet
or exceed the "Minimums" established in Exhibit II for the number of units
sold on a quarterly and yearly
173
basis for the term of this Agreement. These "minimum" requirements are
computed by TRB based on current statistical market data on the U.S.A.
domestic bicycle market.
Failure to meet these requirements may he construed by TRB as a breach by
the DISTRIBUTOR of a material part of this Agreement and result in one or
more of the following:
(a) The DISTRIBUTOR may lose all its rights and privileges under this
Agreement (see Termination, article 8.01).
(b) The DISTRIBUTOR, may lose its "exclusivity" to the territory and
all its rights and privileges under this Agreement as a result of
this exclusivity.
(c) The DISTRIBUTOR may he required to pay in full and in advance a
"security" deposit equal to as much as 25% of the total cost to the
DISTRIBUTOR for the yearly minimum number of units established in
Exhibit II. This deposit will he used by TRB to partially offset
any balance due the company if the minimum is not met.
(d) The DISTRIBUTOR may he required to apply in full up to 100% of the
"unsold" minimum units established in Exhibit II on a quarterly
basis.
2.03 PLAN OF DEVELOPMENT: Simultaneously with the execution of this
Agreement, and with 120 days advanced notice each year thereafter,
the DISTRIBUTOR agrees to prepare and deliver to TRB a proposed sales
forecast by quarter for the twelve month period which sets forth an
estimate of a number of units of the Products which will be sold in
each area of the Territory.
Such sales forecast shall he used by the parties to determine the
number of units that will be ordered by the DISTRIBUTOR for such
period. Contrary wording not withstanding, TRB will not he obligated
to provide more units than expressed by the projection for the time
periods shown. It is acknowledged that in the event the DISTRIBUTOR
orders substantially less of the Product than shown by the projected
sales, TRB may consider it a substantial breach of this agreement.
In the event TRB fails to provide the "minimum" established in
Exhibit II, then the DISTRIBUTOR shall not he in breach if the minimum
requirements are not met.
ARTICLE THREE- TERM OF AGREEMENT
3.01 TERM: The appointment of the DISTRIBUTOR under this agreement
shall be effective
on the date first written above, and shall continue for a period of three
years unless previously terminated. This Agreement shall be renewable at
the option of the DISTRIBUTOR for another three year period provided the
DISTRIBUTOR has met all the requirements of the Agreement. Thereafter
this Agreement shall remain in force from year to year unless either
party shall give the other written notice of termination for cause,
of at least 90 days or unless either party breaches any material term
of this Agreement.
3.02 SURRENDER OF DISTRIBUTORSHIP: The first year of business is the
time period starting from the first date TRB launches the products by
infomercial or delivery of samples, brochures to distributor whichever
is earlier.
During the period of the first year of business the distributor reserves t
he right to surrender the distributorship to TRB, in return TRB agrees to
unconditionally refund entire sum of payment paid by the distributor
towards distributorship.
3.03 PAYMENT FOR DISTRIBUTORSHIP: Total price of distributorship of the
County of Orange, California is U.S. $100,000 (one hundred thousand dollars).
Terms of payment is as follows:
$40,000 First installment upon execution of agreement.
$30,000 Second installment within 180 days of the first installment.
174
$40,000 Third installment within 120 days of the second installment. This
payment includes the $10,000 for samples inventory and brochures.
ARTICLE FOUR - SALE AND PROMOTION OF PRODUCT
4.01 SUPPLY OF PRODUCTS: Subject to the terms of this Agreement, TRB agrees
to hold available and ship pursuant to DISTRIBUTOR'S purchase orders as
confirmed by TRB during the term of this Agreement, a sufficient quantity
of the Products to meet the DISTRIBUTOR'S requirements for the distribution
and resale thereof as specified in Exhibit II; provided, however, that in
the event that TRB is unable to fill any orders, or any part thereof,
within normal delivery dates because of strikes, walkouts, riots, civil
insurrection, interruption of service of usual shipping media, inability
to obtain materials or interruption of manufacturing processes within the
plant due to the destruction of, or damage to, TRB's facilities or the
facilities of any manufacturer from whom TRB subcontracts, or in the
event of unexpectedly heavy orders from the DISTRIBUTOR, or others,
or should TRB be unable to fill the order for any other reason, then TRB
shall be relieved of such obligation, subject to its good faith efforts
to complete the said orders as soon as is reasonable. It is expressly
agreed that TRB shall not be obligated to ship any orders if the
DISTRIBUTOR is in default, or if notice of termination of this
Distributorship for cause, has been given.
4.02 SAMPLES: TRB agrees to supply, at the DISTRIBUTOR'S expense, samples
of the Product in such quantity that the DISTRIBUTOR might reasonably
request to supply its own needs. TRB also agreed from time to time to
supplement such samples of Products.
4.03 MODELS AND SPECIFICATION: TRB agrees to advise the DISTRIBUTOR at
least 60 days prior to the discontinuance or substantial modification of
any specific design, specification and/or model, but it is expressly
understood that TRB shall have no liability under any circumstances
for any damages resulting from the discontinuance or modification of any
Products.
4.04 PRICES: The word price, as used herein, shall be made up of two
factors. First shall be the Product Unit Price, which shall be the
amount charged for the Bicycles or Products themselves. This shall
be as set forth on Exhibit II, attached. The second part shall be the
Service Fee which will be made up of shipping costs, charges for other
such expenses as TRB may have to pay or become obligated for as a
result of the DISTRIBUTOR'S order. The amount of the Service Fees will
be negotiated in good faith. The total of the two items will represent
the price. TRB reserves the right to thereafter alter or change the
total price, but agrees that the Product Unit Price will be consistent
with the Product Unit Prices charged other Distributors of similar
quantity on similar terms. TRB agrees to notify the DISTRIBUTOR thirty
(30) days in advance of any price change.
4.05 TERMS OF PAYMENT: Payment for good ordered by the DISTRIBUTOR shallbe
a confirmed irrevocable letter of credit, confirmed by a TRB designated U.S.
prime bank, payable upon presentation of documents (at sight L/C) or other
advanced payments acceptable to TRB. The letters of credit shall be
delivered with the orders.
4.06 SALES: The DISTRIBUTOR will actively solicit business and promote
the sales of TRB's Products within the Territory and provide the needed
personnel and facilities to accomplish this purpose. The DISTRIBUTOR
will be obligated to set up a Dealer Network to adequately serve his
Territory. Sales of the
175
Products within the Territory may be made in the DISTRIBUTOR'S name
but in any event, the DISTRIBUTOR shall be solely responsible
for all sales costs and handling charges incident
to such sales. The DISTRIBUTOR shall mall to TRB a copy of all
Sub-distributor and Dealer Agreements with the DISTRIBUTOR as soon as
the same date that they are signed. All such agreements must be in
writing and get approval from TRB.
4.07 PROMOTIONAL MATERIALS: The DISTRIBUTOR agrees to submit to TRB copies
of all promotional materials to be used by the DISTRIBUTOR in
connection with the resale of the Product in advance for approval by TRB.
TRB shall also supply DISTRIBUTOR promotional materials with TRB actual
cost.
ARTICLE FIVE - INFRINGEMENT AND TRADEMARKS
5.01 TRADEMARKS: The DISTRIBUTOR hereby acknowledges that TRB is the owner
of certain trademarks and patents and agrees that it shall not,
directly or indirectly, use such trademarks, or any marks confusingly
similar thereto, without prior written consent of TRB, except in
connection with the promotion, marketing and sales of the Products.
5.02 PRODUCT REGISTRATION: The DISTRIBUTOR shall promptly notify TRB of
any and all infringements of TRB's trademarks and patents of the Product
in the Territory that may assist TRB in taking such action against the
infringements as TRB in its discretion may decide, all expenses and costs
incident thereto being paid by TRB.
5.03 TITLE TO TRADEMARKS: The DISTRIBUTOR shall refrain from any act
or acts that may prejudice the validity of the title of TRB to the
trademarks. Upon termination of the Agreement, the DISTRIBUTOR will
not use at any time any bicycle, bicycle parts or any product or service,
of TRB or Trademarks, Tradenames or labels bearing any resemblance to the
Trademarks, Tradenames or Labels of TRB.
5.04 LABELS: All labels and promotional materials used by Distributor
shall be submitted to and approved by TRB prior to use. Such approval
will not be unreasonably withheld or delayed. All labels shall have to
meet the legal requirements of the Territory.
5.05 TRB warrants that it has legal title to the products and is
authorized to sell such products to DISTRIBUTORS.
ARTICIE SIX - PRODUCT IMPROVEMENT AND CONFIDENTIALITY
6.01 IMPROVEMENTS: The DISTIUBUTOR shall require each of his employees,
affiliates and or sub-distributors having access to technical information
and data relating to the Products or component parts thereof to enter
into an agreement with the DISTRIBUTOR (attached as Exhibit IV) whereby
such employees, affiliates and or sub-distributors agree to assign to the
DISTRIBUTOR the entire right, tide and interest in and to any and all
inventions relating to the Products, or relating to or useful in the
manufacture thereof, made by him whether during or within three years
after the course of his employment of engagement with the DISTRIBUTOR.
The DISTRIBUTOR shall promptly assign to TRB any invention or claim in
any patent or patent application covering the Products or any component
part thereof owned by TRB which is made or acquired by the DISTRIBUTOR,
its affiliates, employees or sub-distributors during the term of this
Agreement. TRB shall have the exclusive right and option to file and
perfect any and all patent applications embodying or arising out of such
invention or claim, in the Territory and elsewhere, in the name of TRB
and to that end shall have the right to receive and/or inspect all drawings,
plans, models, specifications and work sheets relating thereto and to
interview any and all of the DISTRIBUTOR'S employees or affiliates
having knowledge thereof.
6.02 CONFIDENTIALITY MEASURES: DISTRIBUTOR and its affiliates (or its
consultant) shall hold all proprietary information disclosed to it
under this Agreement in confidence at all times during and for
176
three years after the term of this Agreement and each party shall require
each of its employees and affiliates (or its consultant) having
access to know-how relating to the Product or component parts thereof
to enter into an Agreement (Exhibit IV) whereby each individual agrees
to hold such proprietary information in confidence at all times, and
agrees not to compete with TRB or the DISTRIBUTOR either during their
employment or engagement and for a three year period thereafter.
Other measures to be taken by the
DISTRIBUTOR to hold proprietary information in confidence shall be subject
to the review and approval of TRB. TRB shall have the specific right,
in the event of a violation or breach of this Section 6.02 by any of
the DISTRIBUTOR'S employees and/or affiliates (or its consultant) to
enforce the provisions of this Section; and to commence an action with
respect thereto, in the DISTRIBUTOR'S name and stead, if the DISTRIBUTOR
for any reason elects not to enforce such provision.
ARTICLE SEVEN - PRODUCT WARRANTIES
7.01 PRODUCT WARRANTY: TRB does not guarantee the sales of the Product
in the Territory and shall not accept any returns thereof except under the
following conditions:
(a) The DISTRIBUTOR shall notify 'I'RB in writing of any alleged
defects rendering Product unsaleable not later than 45 days from date of
discovery of the defect or from date when such defect should have
reasonable been discovered whichever is earlier, provided that in the
DISTRIBUTOR'S judgment the defect resulted from Company's processing
or packaging of the Product and not from mishandling in transport from
the Company's FOB point.
b) With TRB'S approval and at TRB's cost, the DISTRIBUTOR shall
promptly send TRB either one alleged defective unit or all the alleged
defective units and, or some other type of obvious evidence of deficiency
that TRB can examine and determine the DISTRIBUTOR'S complaint.
If the product is determined to be defective, TRB shall either replace
the Product found to be defective with the same quantity of Product in
good, saleable condition or supply replacement parts at a mutually agreed
upon cost to be borne by TRB, or issue a credit to the DISTRIBUTOR for
the invoice amount, within 60 days of receipt of evidence of defect.
Also, TRB reserves the right of requiring that the DISTRIBUTOR return
to TRB all of the unsaleable Products at TRB's expense as more fully
described in paragraph 8.01.
THIS WARRANTY SHALL BE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR
IMPLIED AND TRB MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR MERCHANTABILITY AND IN NO EVENT SHALL BE LIABLE FOR
SPECIAL OR CONSEQUENTIAL DAMAGES.
The provisions of the TRB Limited Warranty are attached as Exhibit V,
and incorporated in this agreement.
ARTICLE ElGHT - TERMINATION
8.01 TERMINATlON: This Agreement may be terminated by the written
notice of TRB should the DISTRIBUTOR cease to function as an ongoing
concern or to conduct its operation in normal course of business as a
DISTRIBUTOR without any proper reason, or should the DISTRIBUTOR
breach any material part of this Agreement, provided DISTRIBUTOR
has not cured said breach within 30 days of TRB sending written
notice to DISTRIBUTOR by express mail or other form of "next day"
delivery specifying the nature of the breach, the action required
to cure the breach and that distributor has 30 days from the sending
of said written notice to cure the breach. The termination of this
Agreement due to a breach does not relieve either party of any claims at
law which a party may have as result of such breach.
8.02 Upon the termination or expiration of this Agreement, as
provided herein, the DISTRIBUTOR shall cease all use of the name,
trademarks and labels of TRB. on termination, the DISTRlBUTOR's
customers, dealers and sub-distributors will become TRB's customers,
dealers and sub-distributors; and that "TRB" will automatically be
subrogated in place of DISTRIBUTOR in sub-distributor agreement, as
177
filed with TRB as provided in paragraph 4.06. Such substitution and
subordination shall exclude any liability of the DISTRIBUTOR to such
dealers or sub-distributors, which liability arose out of conduct
prior to the effective date of such termination or subrogation.
8.03 In the event of termination the DISTRIBUTOR will supply an
inventory of parts (including catalog numbers) of Bicycles and product,
to TRB within 15 days of such termination. TRB shall have 15 days
thereafter to notify the DISTRIBUTOR, which (if any) of such items
it will purchase. TRB may arrange to have a shipper or agent pick
up such material within 20 days thereafter. Payment will be due the
DISTRIBUTOR 20 days after such pick up. In the event that any of the
items previously purchased are not in their original unopened
containers of if they are in any way damaged, scratched or otherwise
not in condition to he immediately resold as new inventory, then
may deduct from the sums due the invoice price of such items or the
difference between the actual value of the items at such time and
the invoice value, whichever be the lower.
ARTICLE NINE - SERVICE
9.01 RESPONSIBILITY OF DISTRIBUTOR: The DISTRIBUTOR shall at all times
maintain a staff of adequately trained personnel to properly maintain the
mechanical integrity of the Product, service the Product when necessary
and to train service personnel in the DISTRIBUTOR's distribution chain.
The DISTRIBUTOR shall provide literature and maintain in adequate supply
of parts to properly support the sale and service of the Products and
shall conform to the sales and service policies of TRB and DISTRIBUTOR
shall provide TRB with service reports on a quarterly basis, such
reports shall be on a form provided by TRB and shall specify models
requiring service during the period, type of service, parts found
defective, reason service was required, date service was required,
date service was performed, product serial number, and name and address
of customer.
The DISTRIBITOR will be obligated to enforce, for the benefit of
all Dealer standard operational procedures and Dealer and Sub-Distributor
Agreements. All such agreements will reserve the right of TRB to
inspect the Dealer premises during regular business hours.
The DISTRIBUTOR will be responsible for answering customer and dealer
complaints, to make reasonable investigations, and where appropriate
to file reports thereof with TRB. The DISTRIBUTOR will establish and
enforce procedure to make sure its Dealers are adequately recording
to customer needs, complaints, and warranty work.
The DISTRIBUTOR will also file and maintain an up-to-do list of all
retail outlets and service facilities for the TRB Bicycle within
their Territory, together with such consents as may be necessary so
that TRB may use the same in its advertising.
The DISTRIBUTOR will cooperate in any product liability claim by keeping
full and accurate repair records, making reasonable investigations of
claim product defects, cooperating with TRB and its insurance carriers,
making a full disclosure to TRB and making available its records and
employees in the event of an investigation of claim and otherwise
reasonably aiding TRB in the defense of any product liability claims.
ARTICLE TEN - MISCELLANEOUS
10.01 ASSIGNMENT AND SUBLICENSING: The DISTRIBUTOR may not assign or
transfer this Agreement or any rights granted hereunder without the
written consent of, which consents shall not be unreasonable withheld.
However, it is contemplated under the terms of this Agreement that the
DISTRIBUTOR shall have the right to sell the products to TRB approved
sub-distributors and retail bicycle dealers within the DISTRIBUTOR's
territory.
10.02 INDEMNIFICATION AGREEMENT: The DISTRIBUTOR agrees to indemnify and
hold TRB harmless against any and all claims, losses, damages, or expenses,
including reasonable attorney's fees
178
incurred by TRB, which result from or arise out of any unauthorized
representation, warranty or guarantee made in connection with the sale,
resale or other disposition of the Products by the DISTRIBUTOR.
The DISTRIBUTOR shall carry product liability insurance
in the limits of $1,000,000.00, naming TRB as its interest may appear.
The DISTRIBUTOR shall deposit true copies of such insurance, together with
proof of payment of the premiums with TRB. In the event of a default by
the DISTRIBUTOR, TRB may give the DISTRIBUTOR 10 days notice to place such
insurance and deliver such policy. If it fails to do so TRB may apply as
the DISTRIBUTOR's agent, for such insurance and the DISTRIBUTOR shall pay
to TRB the premium due thereby, within 5 days of service of notice and
demand, or in the alternative TRB may treat failure to proceed such insurance
as a termination of the DISTRIBUTOR's rights under this agreement.
10.03 NO AGENCY: Nothing contained in this Agreement shall be construed
so far as to make either the DISTRIBUTOR or TRB the agent or partner to
the other, it being the intention of the parties that the DISTRIBUTOR will
act as an independent contractor.
10.04 ENTIRE AGREEMENT: This Agreement sets forth the entire Agreement
between the parties as to the subject mater hereof and merges all prior
discussions and writing between them. This Agreement may only be amended
by a writing signed by all parties hereto.
10.05 GOVERNING LAW: This Agreement shall be deemed executed in and
construed in accordance with the laws of the State of New Jersey, United
States of America.
10.06 NOTICES: Any notices or demand required by this Agreement
shall be in writing and delivered personally or mailed by certified
or registered mail, return receipt requested to the party entitled to
such notice or demand at the address set forth in this Agreement or
such other address as such party may notify the other in writing.
Such notice shall be deemed given on the earlier of receipt of five days
after posting.
10.07 The rights and benefits of this agreement shall accrue to the
DISTRIBUTOR and to TRB and to no other parties. It is the intention
that the execution of this agreement will create no third party
beneficiary rights or any other rights in any other party.
10.08 NO IMPLIED RIGHT: Nothing in this Agreement shall be construed
as conferring any right by implication, estoppel or under any patent,
patent applications or Trademarks, except as herein expressly provided.
10.09 SEVERABILTY: Should any provision of this Agreement or the
application thereof, to any extent, be held invalid or unenforceable,
the remainder of this Agreement and the application thereof shall not
be affected thereby and shall continue valid and enforceable to the
fullest extent permitted by law or equity.
10.10 ARBITRATION: In the event of a dispute of any kind or nature
arising under this agreement or the performance thereof, the party
claiming the dispute shall notify the other, by cable or by the next
day delivery service such as Express Mail, FEDEX, Airborne, UPS, and
etc. of the full details of the claim or dispute. In the event the
parties cannot settle the same within fifteen (15) days thereafter,
either party may demand arbitration. In the event of arbitration,
the arbitration will be conducted under the rules of the American
Arbitration Association of Essex County, New Jersey. Each party
agrees that the decision of the arbitrator will be binding and that
there will be no independent right to bring legal proceeding, except
the right to bring an action upon the arbitrator's award. The cost of
arbitration will be split equally between the parties and the arbitrator
will have the right to demand that a bond or deposit be posted to
cover the same. In the event that either party refuses or fails to cooperate
with the arbitration, the arbitrator shall proceed based upon such
information as the arbitrator may have, and his judgment shall be
binding as stated herein. The Agreement will be interpreted under
New Jersey State law and deemed executed there.
179
10.11 All terms used herein shall have meaning defined in the State of
New Jersey Chamber of Commerce publication "The Rules for New Jersey State
"Interpretation of Trade Terms."
10.12 The parties expressly agree that TRB will not be deemed doing
business in any jurisdiction other than New Jersey State, and nothing in this
agreement will be deemed to contravene that intention. Parties
acknowledge that the DISTRIBUTOR will have an ongoing relationship
and be part of a uniform sales procedure operating on a nationwide
basis. Parties acknowledge this agreement was negotiated and executed
in New Jersey, it shall only be enforceable in the courts of that state.
In addition they acknowledge that all payments called for hereunder will
be made in U.S. Dollars in New Jersey, United States of America.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date or dates hereinabove set forth.
DISTRIBUTOR TRB SYSTEMS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ By: /s/ ▇▇▇▇▇ ▇▇▇ /s/
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇, President
Witnessed: Witnessed:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ /s/ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ /s/
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
EXHIBIT I
Territory : The Orange County of The State of California
EXHIBIT II
YEARLY MINIMUM UNIT QUANTITIES REQUIRED: Subject to be reviewed after three
months after TRB launches products by infomercial or delivery of samples
and brochures whichever is first.
Year 1 : 1,500 TRB Bicycles
Year 2 : 3,000 TRB Bicycles
Year 3 and thereafter: 5,000 TRB bicycles
EXHIBIT III
DISTRIBUTOR PRICES
MODEL NO. F.O.B. TRB's warehouse in U.S.A.
These prices are for 1996 models only
180
And above prices are subject to currency fluctuation
APPENDIX IV
CONFIDENTIALITY AGREEMENT- PROPRIETARY INFORMATION
PRODUCT IMPROVEMENT AND CONFEDENTIALITY AGREEMENT
Gentlemen:
The following confirms an agreement between me and hereinafter referred to
as "Distributor" which is a material part of the consideration for my
employment or affiliation with Distributor:
1. I recognize that the distributor has entered into an agreement with
TRB SYSTEMS, hereinafter referred to as the "Company", which Company is
engaged in a continuous program of research, development and production
respecting its products, patents and know-how, hereinafter referred to as
"Proprietary Information".
2. I understand that my employment or affiliation with Distributor
creates a relationship of confidence and trust between me and the
Distributor with respect to any Proprietary Information.
3. In consideration of my employment or affiliation with the
Distributor from time to time, I hereby agree as follows:
(a) I understand and agree that I have no rights in any Proprietary
Information of the Company or the Distributor. At all times, both
during my employment or affiliation with the years, I will keep in
confidence and trust all Proprietary Information, and I will not use
or disclose any Proprietary Information or anything relating to it
without the written consent of the Distributor and the Company, except
as may be necessary in the ordinary course of performing my duties
with the Distributor. I will at all times fully and accurately document
any Proprietary Information or Inventions (as hereinafter defined)
developed by me so that at all times the Distributor shall have in
its possession descriptions and directions with respect thereto that
will enable the Distributor and its assigns to utilize such Proprietary
Information and Inventions to their full benefit.
(b) All documents, records, apparatus, equipment and other physical
property, whether or not pertaining to Proprietary Information,
furnished to me by the Distributor or produced by myself or others
in connection with my employment or affiliation shall be and remain
the sole property of the Distributor or its assigns and shall be returned
to it immediately as and when requested by the Distributor. Even if the
Distributor does not so request, I shall return and deliver all such
property upon termination of my employment or affiliation by me or by the
Distributor for any reason and I will not take with me any such property or
any reproduction of such termination. I will keep all information relating
to the Proprietary
Information confidential during my employment or affiliation and for three
years thereafter.
(c) I will promptly disclose to the Distributor or any persons
designated by it, all improvements, inventions, ideas, formulas,
processes, techniques, know-how and data, whether or not patentable,
made or conceived or reduced to practice or learned by me, either
alone or jointly with others during the term of
181
my employment or affiliation (all said improvements inventions, formulas,
processes, techniques, how-how and data shall be hereinafter collectively
called "Inventions").
(d) I agree that all Inventions which I developed in whole or in part,
either alone or jointly with others utilizing equipment, supplies,
facilities or Proprietary Information of the Distributor or its
assigns or during my period of employment or affiliation with the
Distributor shall be the sole property of the Distributor and its
assigns, and the Distributor and its assigns shall be the sole owner of
all patents and other rights in connection therewith. I hereby assign to
the Distributor and its assigns any rights I may have or acquire in such
Inventions. I further agree as to all such Inventions to assist the
Distributor and its assigns in every proper way (but shall not bear
the expenses involved) to obtain and from time to time enforce patents
on said Inventions in any and all countries, and to that end I will
execute all documents for use in applying for and obtaining such
patents thereon and enforcing same, as the Distributor or its assigns
may desire, together with any assignments thereof to the Distributor or
person designated by it.
My obligations to assist the Distributor or its assigns in obtaining of
and enforcing patents for such Inventions in any and all countries
shall continue beyond the termination of my employment or affiliation
for a period of three years, but the Distributor or its assigns shall
compensate me at a reasonable rate after such termination for time
actually spent by me on such assistance.
In the event that the Distributor is unable for any reason whatsoever
to secure my signature to any lawful and necessary document required
to apply for or execute any patent applications with respect to such
an Invention (including renewals, extension, continuations, divisions
or continuations in part thereof), I hereby irrevocable designate and
appoint the Distributor and its duly authorized officers and agents,
to its assigns, as my agents and attorneys-in-fact to act for and in
my behalf and instead of me, to execute and file any such application
and to do all other lawfully permitted acts to further the prosecution
and issuance of patents thereon with the same legal force and effect as
if executed by me.
(e) I represent that my performance of all the terms of this Agreement
will not breach any agreement to keep in confidence any proprietary
information acquired by me in confidence any proprietary information
acquired by me in confidence or in trust prior to my employment or
affiliation with the Distributor. I have not entered into, and agree
I will not enter into any agreement either written or oral in conflict
with the obligations set for in this Agreement.
(f) I represent that I did not learn during my prior employment of
affiliation any ideas or information which the Distributor indicated
were considered confidential and proprietary or which were disclosed
to me in a manner which should have made me realize they were so
considered.
If I cannot make the representation provided in (f) I approve, I will
check the following box:
() I cannot make the representation in paragraph (f) above.
If I checked the above box, I hereby represent that I will not make use of
any such confidence and proprietary information or ideas during my
employment or affiliation with the Distributor unless such information or
ideas during my employment by the Distributor are or become publicly
available for reasons other than actions on my part.
4. This Agreement shall be effective as of the first day of my
employment or affiliation with the Distributor.
5. This Agreement shall be binding upon me, my heirs, executors,
assigns, and administrators and shall insure to the benefit of the
Company, its successors and assigns.
Date this 28 day of December, 1995
182
Accepted and Agreed to:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
wp\10006\disagree
APPENDIX V
TRB TRANSBAR-POWER BICYCIE
TRB SYSTEMS INC. (TRB) warrants its bicycle to be free of any defects in
workmanship or material under normal use (excluding organized competitive
events, stunt riding, bicycle motocross or any similar activities) as
expressly provided under this warranty.
Each TRB Bicycle will be fully assembled by the selling Authorized
TRB Dealer at the time of purchase. Your TRB Dealer will provide a free
checkup within 30 days of the date of original purchase. This checkup
does not entitle the purchaser to rights other than those otherwise granted
by the terms of this warranty.
TRB warrants the replacement of any frame or fork due to defects and/or
workmanship. This warranty shall remain in effect for the duration of the
original ownership.
All other components are warranted against failure or defects arising
from normal use for l year from the date of purchase. (Tires, Tubes, Brake
Shoes and ales are excluded from this warranty.)
All warranty claims should be presented through the-dealer from whom the
bicycle was purchased or to any other authorized TRB dealer. Shipping and
labor charges are not included in this warranty.
NOTICE: This warranty does not cover deterioration, damage, failure due
to normal wear and tear, exposure, mis-use, abuse, alteration, negligence,
improper assembly, improper maintenance or defects or damage caused by
improper repair or by the installation of parts other than genuine TRB
parts or equivalents.
TRB's obligation under this warranty is in lieu of all other warranties
express or implied, including the implied warranty of fitness of particular
purpose and merchantability. In no event shall TRB be liable to the
purchaser of its bicycles or to third parties for incidental or
consequential damage including but not limited to personal injury.
TRB does not assume or authorize any person to assume on its behalf any
other obligation other than those included in this warranty.
TRB SYSTEMS INC. - CUSTOMER SERVICE DIVISION
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
183