T3 MOTION, INC. DISTRIBUTION AGREEMENT
THIS
AGREEMENT is made this (the “Effective Date”), by and between T3 Motion,
Inc., a Delaware limited liability company (“T3 Motion”),
and (“Distributor”) with reference to the following:
BACKGROUND
T3 Motion
is engaged in the business of providing a state of the art personal mobility
vehicle (the T3 Series), as described on Exhibit A attached. Distributor desires
to promote, market, sell and distribute T3 Motion’s T3 Series.
NOW
THEREFORE, in consideration of the premises and of the mutual agreements and
understandings below, the parties agree as follows:
1. APPOINTMENT OF DISTRIBUTOR AND
LICENSES GRANTED
1.1 Non-Exclusive Appointment in
the Service Area. T3 Motion appoints Distributor as a
non-exclusive Distributor in the Sales Territory, and Distributor accepts such
appointment. Distributor has the non-exclusive, non-transferable
right and license to promote, market, sell and distribute the T3 Series within
the Sales Territory during the Initial Term and any Renewal Term(s) (as defined
below). Distributor agrees that its status as a T3 Motion Distributor
depends upon its meeting, and continuing to meet, standards of performance
described herein, including minimum sales requirements, as set forth in Exhibit
C attached.
1.2 Restrictions. Distributor
shall not seek customers for the T3 Series outside the Sales Territory nor
establish or maintain any authorized branch or distribution center outside the
Sales Territory without T3 Motion’s prior written consent. During the
term of this Agreement, Distributor does not have the right to enter into a
redistribution agreement or license with respect to the T3 Series with any
entity whatsoever. T3 Motion retains the right to market, sell, and
distribute the T3 Series in the Sales Territory and to appoint other
Distributors in the Sales Territory.
1.3 Limited Trademark
License. Distributor is authorized to use the T3 Motion
trademarks, service marks and trade names (the “Marks”), as identified in
writing to Distributor, solely in connection with the promotion, sale and
marketing of the T3 Series. The writing contains T3 Motion’s
trademark policies and procedures that Distributor must follow. Any
unauthorized use or misuse of the Marks or any use which is not in compliance
with T3 Motion’s procedures is a breach of this Agreement. The Marks
are and shall remain the exclusive property of T3 Motion. Distributor
has no rights except for a limited license to reproduce the Marks as necessary
for Distributor to fully promote and market the T3 SERIES and T3 Products during
the Initial Term and any Renewal Term(s).
(a) Distributor
agrees that nothing in this Agreement gives it any right, title or interest in
the Marks (except the right to use the Marks in accordance with the terms of
this Agreement), and that the Marks are the sole property of T3 Motion and its
affiliates. Distributor shall not
directly or indirectly contest the validity or ownership of the Marks or T3
Motion’s right to license the Marks. Distributor agrees that any and
all uses by Distributor of the Marks and the goodwill arising therefore shall be
limited to the identification of Distributor as an authorized Distributor of T3
Products, and shall inure exclusively to the benefit of T3 Motion and its
affiliates. Distributor will not seek to register, re-register,
assert claim to ownership of, license or allow others to use, or otherwise
appropriate to itself any of the Marks or any ▇▇▇▇ or name confusingly similar
thereto, or the goodwill symbolized by any of the foregoing, except to the
extent this action inures to the benefit of, and Distributor has obtained the
prior written approval of, T3 Motion.
(b) The
obligations undertaken by Distributor pursuant to this Section shall
survive termination of this Agreement, and in the event of such
termination, Distributor agrees not to register or use any trademarks or trade
names that are the same as, or confusingly similar to, the Marks, and
Distributor will surrender or abandon its use or ownership of any trade name or
style containing any ▇▇▇▇ or trade name confusingly similar to that of T3 Motion
or any affiliate thereof.
1.4 Non-exclusive
License. T3 Motion reserves the right to promote and sell T3
Series products to present or future customers directly or through its
employees, subsidiaries, affiliates. Distributor has the right
to sell the T3 Series products and services of other customers. T3
Motion has the right to appoint and resell the T3 Series products to other
Distributors. Distributor must not resell the T3 Series products of
T3 Motion to any other Distributor of T3 Motion or to any other provider of T3
products and services.
1.5 No Knowing Solicitation of
Other Parties’. During the term of this Agreement, T3 Motion
will not intentionally target Distributor’s customers (the “Customers”), nor
knowingly solicit Distributor’s Customers on the basis of any information
Distributor may provide, or which T3 Motion may naturally acquire through the
relationship of the parties, such as an T3 SERIES
address. Distributor will not intentionally target T3 Motion’s
Customers, nor knowingly solicit T3 Motion’s Customers on the basis of any
information that T3 Motion may provide, or which Distributor may naturally
acquire through the relationship of the parties. Neither party hereto
shall be liable to the other party for the unintentional solicitation of the
other party’s Customers.
1.6 Relationship Between
Parties. The relationship between T3 Motion and Distributor is
that of independent contractors and under no circumstance shall any of the
employees of one party be deemed to be the employees of the
other. This Agreement shall not be construed as authority for either
party to act for the other party in any agency or other capacity or to make
commitments of any kind for the account of, or on behalf of, the other party,
except to the extent, and for the purposes of, expressly provided
herein. Distributor acknowledges that it is not, and shall not hold
itself out as, a joint venture, franchisee, partner or employee of T3
Motion. The relationship created by this Agreement is not
intended by the parties to constitute the granting of a franchise to Distributor
by T3 Motion. Distributor expressly acknowledges and confirms
that it has not paid and will not pay any fee to T3 Motion in connection with
this Agreement and that none of the terms, conditions or amounts provided for in
this Agreement can be characterized to constitute such a fee.
2. PURCHASE AND RESALE OF T3 MOTION PRODUCTS
AND SERVICES
2.1 Sale of T3 Series
Products. Distributor shall purchase the T3 Series from T3
Motion and shall sell T3 Series Products to Distributor’s Customers subject to
all applicable T3 Motion tariffs, if any, now or hereafter filed with federal
and/or state authorities (“T3 Motion Tariffs”). Distributor can order from T3
Motion, and T3 Motion shall sell to Distributor, T3 Series products at the rates
described on Exhibit A.
2.2 No Proprietary
Interest. Neither Distributor nor any of Distributor’s
Customers shall acquire any proprietary interest in any specific T3 Series
product, which remain T3 Motion’s property.
3. PAYMENT FOR T3 MOTION
PRODUCTS
3.1 T3
Charges. Distributor shall promptly pay to T3 Motion all sums
due (“T3 Charges”) for the T3 products, which amounts shall be calculated and
paid as set forth in Exhibit A hereto. The schedule of T3 Charges provided in
Exhibit A shall remain in force for one year after the date of this
agreement. Thereafter, rates for the T3 Products and the purchase of
T3 Series will be renegotiated annually effective on the anniversary of the
Effective Date (the “Anniversary Date”).
3.2 Distributor’s Right to
Determine Prices for Distributor’s Customers. Distributor
agrees not to advertise or price the T3 Series products below what Distributor
paid T3 Motion for the T3 Motion products. Distributor shall
determine, at its sole discretion, the charges to ▇▇▇▇ and collect from the
Distributor’s Customers for the T3 Motion products provided under this
Agreement, subject, however, to any T3 Motion Tariffs. Distributor
shall bear all risks of non-collection from Distributor’s Customers, and shall
be obligated to make the payments specified in this Section regardless of
whether or not it has been paid by Distributor’s Customers.
4. DISTRIBUTOR’S
OBLIGATIONS
4.1 Distributor
Diligence. Distributor shall solicit the Customers for T3
Motion’s products for its own account and under its own trade
name(s). Distributor agrees to faithfully and diligently use its best
efforts to sell, promote and support the product in the Sales Territory by all
usual means and to act loyally to T3 Motion in all matters involved in or
related to this Agreement.
4.2 Ethical
Conduct. Distributor will conduct its business in an honest,
professional and ethical manner and will not commit any act or omission to act
which could adversely affect T3 Motion, its name, reputation or ability to
conduct business. Distributor will comply with the reasonable
requirements and practices established by T3 Motion for the processing of
service forms, credit applications, collections, fraud prevention and all other
administrative functions.
4.3 Unlawful
Use. Any attempt by Distributor to use T3 products for an
unlawful purpose will be a material breach of this Agreement. T3
Motion may, by written notice to Distributor, require Distributor to cancel the
right to use service of any Distributor Customer using or attempting to use
T3 Motion products for an unlawful purpose, and failure of Distributor to cancel
such Distributor Customer’s service shall be deemed a material breach of this
Agreement.
4.4 Distributor Warranty to
Customers. Distributor is responsible for all warranties,
express or implied, with regard to any T3 products provided by T3 Motion that
differ from T3 Motion’s limited warranty herein. The form of contract
between Distributor and the Distributor’s Customers shall include language
substantially similar to the following:
4.5 Distributor
Responsibility. Distributor is solely responsible for all
risks and expenses incurred in connection with its actions in the sale or use of
the T3 products or any other acts required of Distributor pursuant to this
Agreement. Distributor is solely responsible for any credit
verification, deposits, billing, collection, consolidation, billing or service
complaints, bad debts and fraudulent or illegal use by any Distributor
Customer.
4.6 Compliance with
Law. In performing its duties hereunder, Distributor shall
comply with all applicable federal, state and local laws, rules and regulations,
and with all applicable T3 Motion Tariffs, if any, for T3 products and policies
of T3 Motion communicated to Distributor, which are now or hereafter in
effect. Distributor shall have and maintain all necessary federal,
state or local governmental permits or certificates necessary for the
performance of its duties hereunder and the conduct of its business which
may include the necessity of filing a separate tariff to sell T3 Motion products
as a Distributor.
5. DUTIES OF T3
MOTION
5.1 T3
Products. T3 Motion shall provide T3 Products to Distributor’s
Customers, provided (a) T3 Products are generally available, and
(b) Distributor is not in breach of this Agreement.
5.2 Customer
Support. Subject to the terms and conditions of this
Agreement, once a Distributor Customer has been sold a T3 Motion product, T3
Motion shall continue to provide uninterrupted customer support for the duration
of this Agreement, provided that Distributor is not in material breach of this
Agreement.
5.3 No Other
Obligation. T3 Motion shall have no liability to Distributor
or any of Distributor’s Customers in connection with T3 Products or
equipment except as specifically set forth in this Agreement or otherwise
in T3 Motion’s Tariffs or in its Customer or T3 Products policies communicated
to Distributor.
6. T3 MOTION LIMITED
WARRANTY
6.1 Limited
Warranty. T3 Motion warrants that the T3 Products will operate
and conform to T3 Motion’s published specifications. The limited
warranty a T3 Series is 1 year or 2,500 miles from
purchase. Distributor will pass through T3 Motion’s standard limited
warranty to its customers. Distributor will not modify T3 Motion’s
standard limited warranty or make any other warranty with regard to T3 Products
without T3 Motion’s prior written consent.
6.2 Warranty
Exclusions. THIS LIMITED WARRANTY DOES NOT EXTEND TO CLAIMS
ARISING FROM MISUSE OF THE T3 PRODUCTS, CASUALTY LOSS OR DAMAGE,
OR USE OF THE T3 PRODUCTS FOR PURPOSES OTHER THAN THOSE FOR WHICH THE T3 SERIES
WAS DESIGNED. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH
ABOVE, T3 MOTION GRANTS NO WARRANTIES FOR THE T3 PRODUCTS, EXPRESS OR IMPLIED,
AND T3 MOTION SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF QUALITY,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Limited
Remedy. In the event that any T3 SERIES fails to perform in accordance with the
specifications, or is otherwise defective in materials or workmanship, T3 Motion
will repair or replace or refund the purchase price to Distributor, in T3
Motion’s discretion. Distributor is responsible for the
administration and handling of all warranty claims and returns to T3 Motion from
Distributor’s customers within the Service Area. For defective
T3 Products, Distributor and Distributor’s Customers’s sole remedy is credit and
reperformance of the product.
6.4 Return of T3
SERIES. In the event Distributor wishes to make a warranty
claim, Distributor shall notify T3 Motion in writing by telecopy of
Distributor’s desire to return an T3 SERIES, stating the reason for such
return. Distributor shall not return any T3 SERIES to T3 Motion
without first obtaining a Return Material Authorization (“RMA”) number from T3
Motion. Distributor shall send to T3 Motion, freight prepaid, on a
monthly basis, every month during the term of this Agreement, all returned T3
SERIES’s for which an RMA has been issued. As promptly as possible
but no later than forty-five working days after receipt by T3 Motion of a
properly returned T3 SERIES thereof, T3 Motion shall replace or repair, at its
sole discretion, the T3 SERIES. T3 Motion shall pay shipping charges
in connection with shipment of replaced T3 SERIES’s thereof to Distributor for
properly returned T3 SERIES’s; otherwise, Distributor shall be responsible for
shipping charges to T3 Motion. In the event that such repaired
or replaced T3 SERIES is shipped to Distributor together with an T3 SERIES
corresponding to a purchase order pursuant to this Agreement, shipping charges
in connection with such shipment shall be pro-rated between T3 Motion and
Distributor.
6.5 Warranty
Exclusion. T3 Motion shall not be liable for any failure of T3
Products caused by or resulting from (a) any incompatibility of Distributor’s
Customers’ equipment or (b) any act or event beyond the reasonable control of T3
Motion, including but not limited to geographic or climatic conditions, wind,
fire, flood, act of God, riot, war, strike or labor dispute, governmental acts
or orders or any other similar or dissimilar act or event not within the
reasonable control of T3 Motion.
6.6 Limitations of
Liability.
(a) T3
MOTION SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES
WHETHER OR NOT T3 MOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION SURVIVES THE FAILURE OF ANY EXCLUSIVE
REMEDY.
7. INDEMNITIES AND INSURANCE
7.1 By
Distributor. Distributor shall indemnify and hold harmless T3
Motion, its officers, directors, agents, employees, successors and assigns, from
and against any and all losses, claims, actions, proceedings, liabilities,
obligations, damages, costs or expenses (including reasonable attorneys fees)
(“Claims”) arising out of or resulting from (i) any breach by Distributor of
this Agreement or (ii) the acts or omissions of Distributor, its
employees or agents. T3 Motion shall notify Distributor of any such
Claims and T3 Motion may undertake the defense thereof or require Distributor to
do so. Should T3 Motion request Distributor to undertake such defense
and Distributor in fact undertakes such defense, T3 Motion can, at its election
and at its sole cost, also participate in the defense thereof.
7.2 By T3
Motion. T3 Motion shall indemnify and hold harmless
Distributor, its officers, directors, agents, employees, successors and assigns,
from and against any and all Claims arising out of or resulting from (i)
any breach by T3 Motion of this Agreement or (ii) the gross negligence of T3
Motion. Distributor shall notify T3 Motion of any such Claims, and
Distributor may undertake the defense thereof or require T3 Motion to do
so. Should Distributor request T3 Motion to undertake such defense
and T3 Motion in fact undertakes such defense, Distributor can, at its election
and at its sole cost, also participate in the defense thereof.
7.3 Required
Insurance. With respect to performance hereunder, Distributor
shall maintain at all times during the term of this agreement the following
insurance coverage and any additional insurance and/or bonds required by
law: (1) Workers’ Compensation Insurance in compliance with the laws
of the state in which the work is to be performed, (2) Commercial Liability
Insurance under a comprehensive general liability form, which includes
coverage for personal injury and property damage with policy limits of not less
than $1,000,000 per occurrence. If the Commercial Liability
Insurance is Claims-made coverage, the retroactive date must be prior to or
coincident with the inception date of this Agreement and shall not be advanced
during the term of this Agreement.
7.4 Indemnification. T3
Motion further agrees, at T3 Motion’s own expense, to defend or at T3 Motion’s
option, to settle, any claim, suit or proceeding brought against Distributor or
Distributor’s customers on the issue of infringement of any United States
patent, copyright or trademark by the T3 products sold hereunder or the use
thereof (including breach of any license agreement relating to the T3
products). T3 Motion shall have sole control of any such action or
settlement negotiations, and T3 Motion agrees to pay all losses, costs, claims,
expenses, damages or judgments entered against Distributor or Distributor’s
customers on such issue in any such suit or proceeding defended by T3
Motion. Distributor agrees that T3 Motion, at T3 Motion’s sole
option, shall be relieved of the foregoing obligations unless Distributor or
Distributor’s customer notifies T3 Motion within a reasonable period in writing
of such claim, suit or proceeding. T3 Motion shall not be liable for
any costs or expenses incurred without T3 Motion’s prior written
authorization.
(a) Remedies. If
the use or sale of the T3 Products is or is likely to be enjoined as a result of
any claim or proceeding alleging infringement, or to settle any such claim, T3
Motion may at its own expense:
(i) obtain
for Distributor the right to use or sell the T3 products at no additional cost
to Distributor;
(ii) modify
the T3 products so that it is functionally equivalent but non-infringing;
or
(iii) replace
the T3 products with functionally equivalent but non-infringing T3
products.
(b) Limitation. Notwithstanding
the provisions of subsection (a) above, T3 Motion assumes no liability for; (i)
infringements covering any assembly, combination, method or process in which any
of the T3 products may be used but not covering the T3 products when used alone;
(ii) infringements involving any marking or branding not applied by T3 Motion or
involving any marking or branding applied at the request of Distributor; or
(iii) infringements involving the modification of the T3 products, or any part
thereof, unless such modification was done by T3 Motion or under T3 Motion’s
authority.
(c) Entire
Liability. THE FOREGOING PROVISIONS OF THIS SECTION STATE
THE ENTIRE LIABILITY AND OBLIGATIONS OF T3 MOTION AND THE EXCLUSIVE REMEDY
OF DISTRIBUTOR AND DISTRIBUTOR’S CUSTOMERS, WITH RESPECT TO ANY ALLEGED
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE PRODUCTS OR ANY PART THEREOF.
8. T3 MOTION RIGHT OF FIRST
REFUSAL
8.1 Right. As the parties
agree that it is in the best interests of T3 Motion, of Distributor, and the
Distributor’s Customers to keep the Distributor Customer base on T3 Motion’s T3
SERIES product, Distributor grants to T3 Motion the right of first refusal on
any proposed sale of its Distributor Customer base acquired pursuant to this
Agreement. Accordingly, if Distributor desires at any time during the
term of this Agreement to sell all or part of Distributor’s Customer accounts
subscribed hereunder, it shall first secure a written bona fide offer from a
third party to acquire such accounts. T3 Motion shall then have
the right of first refusal to match any bona fide written offer to purchase
those accounts, as provided below.
8.2 Process. Within
thirty days after Distributor’s receipt of any bona fide written offer to
acquire rights in Distributor’s Customer accounts, Distributor shall provide T3
Motion a copy of such offer. T3 Motion shall be provided timely
access to all pertinent records pertaining to Distributor’s Customers, including
accounts receivable and aged balance, in order to evaluate its
option. Within thirty days after receipt of notice, T3 Motion shall
notify Distributor in writing of its desire to meet the terms and conditions of
the offer or, if any part of the offer is non-cash, to make an equivalent cash
payment. If the parties cannot agree as to the cash equivalency of
the offer,
the matter shall be submitted to binding arbitration, the costs of which shall
be evenly split between Distributor and T3 Motion.
8.3 Acceptance or
Rejection. If T3 Motion exercises its right to purchase, the
parties will endeavor to conclude the purchase as soon as
practicable. Pending the closing, the parties will use their best
efforts to avoid any interruption of T3 Products to Distributor’s Customers and
will do nothing to adversely affect Distributor’s Customer account
base. If T3 Motion rejects such offer, or fails to accept within the
thirty-day period, Distributor shall be free to sell its Distributor Customer
accounts upon terms no less favorable to Distributor than are contained in the
offer submitted to T3 Motion. If Distributor does not accept the
offer, which is at least as favorable to Distributor as that submitted to T3
Motion (as far as terms that can be satisfied by the payment of money and only
as to Distributor’s Customer accounts), then the provisions of this Section
shall apply to all subsequent offers for the purchase of Distributor’s Customer
accounts.
8.4 Non-Solicitation by
Distributor. In the event of any assumption or purchase by T3
Motion of Distributor’s Customer accounts under this Section, neither
Distributor nor any principal, director, owner, employee, agent, majority
stockholder, nor any affiliate or successor corporation or successor entity
shall solicit the Distributor Customer accounts, insofar as they remain on T3
Motion customer.
8.5 Non-Solicitation by T3
Motion. In the event of any sale by Distributor of its
Distributor Customer accounts to another party, after T3 Motion’s prior refusal
to purchase under this Section, neither T3 Motion nor any principal,
director, owner, employee, agent, majority stockholder, nor any affiliate or
successor corporation or successor entity shall solicit the former Distributor
Customer accounts, insofar as they remain a T3 Motion customer, for a period of
one year following the third parties assumption or purchase of
Distributor’s Customer accounts.
8.6 Exclusion. The
provisions of this Section shall not apply in the event of an acquisition of
Distributor which does not involve or require the transfer of Distributor’s
Customers from T3 Motion’s product.
8.7 Transfer to Proprietary T3
Products. The provisions of this Section shall not apply in
the event Distributor transfers Distributor Customer accounts to its own T3
products.
9. CONFIDENTIALITY
9.1 Definition. “Confidential
Information” as used herein means any idea, concept, design, method,
application, process, technology, know-how, technique or material to the extent
that such is not generally known by or to the public, or modifications,
improvements or extensions thereof, whether or not reduced to tangible form,
relating to the business of T3 Motion.
9.2 Duty. During
the term of this Agreement, Distributor shall not disclose any Confidential
Information to any third party, including but not limited to Distributor’s
Customers. Distributor acknowledges that during the course of
performance under this Agreement, certain of its respective agents, employees
and/or representatives may receive Confidential Information belonging to T3
Motion and Distributor agrees that the only agents, employees or
representatives
who will
receive the Confidential Information will be those who have a need-to-know such
Confidential Information and those who unavoidably come in contact with the
Confidential Information while on Distributor’s
premises. Distributor expressly agrees to instruct its agents,
employees and representatives who may receive Confidential Information to
safeguard the Confidential Information from disclosure and treat such
Confidential Information as confidential. If Distributor fails to so
instruct any agent, employee or representative who may receive Confidential
Information in accordance herewith it shall be deemed to have materially
breached this Agreement.
9.3 Exceptions. Notwithstanding
anything to the contrary contained herein, Distributor may disclose (a) any
information generally available or known to the public; (b) any information
already known or available to the Distributor prior to the disclosure of such
information; (c) information which becomes part of the public domain by
publication or otherwise through no fault of Distributor; or (d) information
required by law to be disclosed to a court or tribunal; provided, however, that
if Distributor is required to disclose such information to a court or tribunal
it shall give notice of the proceeding to T3 Motion in accordance herewith to
allow T3 Motion to seek an appropriate protective order or waive compliance with
this Agreement.
9.4 Return. Any
and all written information or materials exchanged by the parties hereto
pursuant to this Agreement shall be returned along with all copies of the same
to the other party upon request of such party.
9.5 Equitable
Remedies. Distributor agrees that the Confidential Information
disclosed hereunder is of a special and unique kind, the protection of which is
essential to the operation and competitive position of T3 Motion, and that if
there is a breach by Distributor of the obligations hereunder, T3 Motion would
have no adequate remedy at law. Therefore, in addition to any other
remedies which may be available at law, Distributor agrees that T3 Motion shall
be entitled to seek injunctive relief, specific performance or other equitable
relief or any or all of the above, as may be provided under the laws of and in
any judicial forum in the State of California or the United States of America,
for any violation of this Agreement.
10. TERM AND
TERMINATION
10.1 Term and
Renewal. Unless otherwise terminated in accordance with other
provisions of this Agreement, (a) the initial term of this Agreement shall
begin on the Effective Date and shall continue for one year (the “Initial
Term”), and (b) the term shall automatically renew after the Initial Term for
consecutive renewal terms of one year each (each, a “Renewal Term”) commencing
on the Anniversary Date of the Effective Date, unless terminated by either party
by written notice delivered at least ninety days prior to the end of the initial
term or any renewal term.
10.2 Monetary
Default. If, within ten days after receiving a notice of
payment default from T3 Motion, Distributor shall not have cured such default,
T3 Motion shall have the right to suspend or terminate this Agreement, effective
immediately upon delivery of a suspension or termination notice in
writing.
10.3 Material
Breach. If either party commits a material breach of this
Agreement (other than a monetary default) and has not cured such breach within
twenty days or such time as is reasonably necessary after written notice
thereof, the other party may terminate this Agreement, effective immediately
upon delivery of a termination notice in writing.
10.4 Insolvency. Either
party may terminate this Agreement upon thirty days’ written notice if the other
party (a) becomes insolvent, bankrupt or makes an assignment for the benefit of
creditors; (b) applies for or consents to the appointment of a trustee or
receiver, or a trustee or receiver is appointed for the other party; or (c)
bankruptcy, insolvency or liquidation or other proceedings are commenced by
or against the other party, and such appointment or proceedings are not
discharged or dismissed within sixty days after such appointment or
commencement.
10.5 Termination by T3
Motion. This Agreement may be terminated by T3 Motion at any
time upon thirty days’ prior written notice if (a) Distributor ceases doing
business in the ordinary course; (b) if Distributor fails to comply with the
confidentiality and ownership provisions of this Agreement; (c) if Distributor
or an Affiliate of Distributor (or one of its principals, officers, directors or
employees):
(i) has
made any material misrepresentations or omissions in its application to
establish its relationship with T3 Motion, submits false or fraudulent reports,
forms or certifications to T3 Motion, or is convicted or pleads no contest to
any felony or other crime, which conviction or plea may adversely affect the
reputation of T3 Motion or its Affiliates or the goodwill associated with T3
Motion’s Trademarks;
(ii) attempts
to make an unauthorized assignment of this Agreement or receives a notice
of violation of the terms or conditions of this Agreement or any license,
approval, certification or permit required by Distributor or its employees in
the conduct of Distributor’s business and fails to correct such violation or to
terminate the employment of the responsible employee(s) within the time period
specified in such notice if any, or within thirty days after receipt of such a
notice, whichever comes first;
(iii) fails
to satisfy the minimum performance standards as set forth in Exhibit C for
two consecutive calendar quarters, but only after a review and T3 Motion
undertakes reevaluation. T3 Motion, in its sole discretion, shall be
entitled to terminate immediately once such a review and reevaluation has been
completed; and
(iv) is
acquired in whole or in substantial part by, or is merged with, a third party,
or sells all or substantially all of its assets to a third party.
10.6 Effect of
Termination. Immediately upon the termination of this
Agreement Distributor shall cease distributing T3 Motion’s T3 Products except to
those Customers prior to the termination date with Distributor for T3 Motion’s
T3 Products. T3 Motion expressly agrees to provide T3 Products for
such Distributor Customers after the termination of this Agreement provided that
Distributor is not in material breach of the Agreement. Termination
regardless of cause or nature shall be without prejudice to any other rights or
remedies of the parties. Termination of this Agreement for any cause
shall not release either party from any liability which, at the time of
termination, has already accrued to such party, or which may accrue
with
respect
to any act or omission prior to termination or from any obligation which is
expressly stated herein to survive termination. Upon expiration or
termination of this agreement for any reason, the parties agree to continue
their cooperation in order to effect an orderly termination of their
relationship. Distributor shall immediately cease representing itself as a
Distributor of T3 Products for T3 Motion and stop utilizing T3 Motion’s
Trademarks. Distributor agrees that it will comply with any duties
which T3 Motion reasonably requires of Distributor to affect an orderly
termination.
10.7 Automatic
Termination. This Agreement shall terminate automatically and
without liability or further obligation on the part of either party to the other
if T3 Motion’s or it’s providers (“Service Providers”) licenses or other
authority to operate are revoked, suspended or not renewed; provided, however,
that if such revocation, suspension or non-renewal does not apply to all of T3
Motion’s facilities, then this Agreement shall terminate only as to those
facilities for which licensing or other authority does not exist.
10.8 Termination Due to
Government Action. This Agreement shall be terminated by T3
Motion upon ten days’ prior written notice if any governmental regulatory agency
promulgates any rule, regulation or order which (a) in effect or
application prohibits or substantially impedes T3 Motion from fulfilling its
obligations in providing T3 Products and/or services in the Service Area; or (b)
materially or adversely affects T3 Motion’s ability to conduct business in the
Service Area upon the terms and conditions acceptable to T3 Motion.
11. NOTICES
11.1 Any
notice or demand given or made hereunder shall be written and served in the
following manner:
(a) If
given to T3 Motion, notice shall be addressed to T3 Motion at:
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: VP
Sales & Marketing
(b) If
given to Distributor, notice shall be addressed to Distributor
at:
(c) All
notices may be served by registered or certified U.S. mail or by any regular
delivery service that provides receipt and evidence of
delivery. Notices shall be deemed to be given two days after the date
of registration or certification with the U.S. Postal Service or on the date of
actual delivery if served by any other method.
(d) Either
party can change its address for notice purposes in the manner provided
herein.
12. MISCELLANEOUS
12.1 This
Agreement and the terms of Exhibit A hereto shall apply in all Sales Territories
served by T3 Motion, subject to all local laws and regulations.
12.2 Each
party hereto represents and warrants to the other that it has (a) all necessary
power and authority to enter into and perform this Agreement in accordance with
its terms, and (b) all necessary authorizations from federal, state and
local governmental entities.
12.3 The
waiver, express or implied, by either party, of any rights or of any failure to
perform or of any breach by the other party shall not constitute or be deemed a
waiver of any other right hereunder or any other failure to perform or breach by
the other party, whether of a similar or dissimilar nature.
12.4 If
any part of this Agreement is found to be in violation of any federal, state or
local law, rule, regulation, ordinance, order or judgment, such portion shall be
stricken from the Agreement and be of no effect, and the balance of this
Agreement shall continue in effect until it otherwise terminates or
expires. Moreover, in the event that any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
12.5 In
the event that any of the T3 Products provided hereunder or the charges made
therefore at any time become subject to any federal, state or local regulation
or tariff, then the terms and conditions of this Agreement including the charges
set forth in Exhibit A, shall be deemed amended to conform to any conflicting
terms and conditions in effect under such regulation or
tariff. All non-conflicting terms and conditions of this Agreement
shall remain valid and effective.
12.6 This
Agreement incorporates by reference the standards for non-discriminatory service
established by Federal agencies and binds Distributor to adhere to those
standards in all practices and activities undertaken pursuant to this
Agreement.
12.7 All
claims or disputes between T3 Motion and Distributor arising out of or relating
to this contract, or breach thereof, shall be decided in accordance with the
commercial arbitration rules of the American Arbitration Association then in
effect unless the parties mutually agree otherwise. Notice of
the demand for arbitration shall be filed in writing with the other party in
reasonable time after the dispute has arisen. The award rendered
by the arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction
thereof. The party prevailing in such arbitration shall be entitled
to recover its reasonable attorney’s fees and costs.
12.8 If
either party commences an action against the other party for the breach or
alleged breach of this Agreement or for its enforcement, the prevailing party
shall be entitled to recover, in addition to damages, its reasonable attorneys’
fees and costs from the other party.
12.9 This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
12.10 No
rights or obligations hereunder shall be assigned or delegated, in whole or in
part, by Distributor to any other person, firm or corporation without the
written consent thereto by T3 Motion, which consent shall not be unreasonably
withheld. T3 Motion shall be entitled to assign its interest
hereunder without the consent of Distributor, provided T3 Motion’s assignee is
capable of performing T3 Motion’s obligations under the terms of this
Agreement.
12.11 The
validity, construction and performance of this Agreement shall be governed by
and interpreted in accordance with the laws of the State of
California.
12.12 Headings
to articles and sections of this Agreement are to facilitate reference only, do
not form a part of this Agreement, and shall not in any way affect the
interpretation hereof.
12.13
This Agreement may be executed by the parties in counterparts, each of which
shall be deemed an original and both of which together shall constitute the one
and the same instrument. When executed, this Agreement and the
Exhibits hereto shall constitute the entire Agreement of the parties and
supersede all prior agreements, written or oral of every sort, and may not be
amended except in writing and signed by authorized representatives of each
party.
(Signature page
follows)
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by a person with full power and authority to bind such
party.
“T3
Motion”
By:_____________________________
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Vice
President, Sales & Marketing
“Distributor”
By:____________________________
Name:
Title: Owner
EXHIBIT
A
T3
MOTION DISTRIBUTION PRICE LIST
|
T3
Motion Product
|
Description
|
Distribution
Price
|
List
Price
|
Limit
Markup
From
List Price
|
|
Vehicle
Package
400
Series Model
|
1.
T3 Series Vehicle
2.
Yelp Horn
3.
Vehicle Charger
4.
Qty 2 Type B Power Modules
5.
Pannier Bar
6.
Safety Helmet
|
|
|
|
|
Type
B Power Module
|
25
Mile Range (Li-Poly) Battery
|
|
|
|
|
Vehicle
Cover
|
T3
Series Cover
|
|
|
|
|
Pannier
Bag
|
Soft
Storage Bag
|
|
|
|
|
Vehicle
Charger
|
110V
Dual Charging System
|
|
|
|
|
Utility
Trailer
|
Flat
Bed Trailer
|
|
|
|
|
Note: 1.
Manufacturing Representative is paid commission from T3 Motion directly.
Distributor is not
responsible for Manufacturing Representatives commission under current
contract terms.
2. Shipping and Handling is TBD based on volume orders. Shipping and
Handling should
be passed onto customers.
3. Product part numbers are defined in product nomenclature
reference sheet.
4. Discounted pricing will result in a renegotiated price between
Distributor and T3 Motion.
|
||||
EXHIBIT
B
Sales
territory
EXHIBIT
C
DISTRIBUTOR
PERFORMANCE REQUIREMENTS
MONTHLY VOLUME
PURCHASE: