Fill and Sign the Marketing Agreement Form

Distributorship and Marketing Agreement Agreement made this       day of       , 20       , by and between       , a corporation organized and existing under (Name of Manufacturer) the laws of the state of       , with its principal office located at (Name of State)       , referred to herein as a Manufacturer, and (Street Address, City, County, State, Zip Code)       , a corporation organized and existing under the laws (Name of Distributor) of the state of       , with its principal office located at (Name of State)       , referred to herein as Distributor. (Street Address, City, County, State, Zip Code) Whereas, Manufacturer constructs and manufactures       , (Names of Products) hereinafter referred to as the Products; and Whereas, Distributor is in the business of distributing products related to those manufactured by Manufacturer; and Whereas, Manufacturer desires to grant and Distributor desires to acquire, certain rights to market Manufacturer’s Products; Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. Distribution Rights. Subject to the terms and conditions set forth in this Agreement, Manufacturer hereby grants to Distributor the exclusive, non-transferable right to market and distribute the Products within       , manufactured (Describe Territory) or distributed by Manufacturer. During the term of this Agreement, Distributor shall have the first right of refusal at its option to expand the Territory in order to distribute the Products on an exclusive basis in       . Manufacturer shall give (Describe Territory) Distributor written notice and the terms under which it intends to permit distribution, or the terms of any offer or request from a third party for rights to distribute, any of the Products in any state not then included in the Territory. Distributor shall accept or reject such offer in writing within thirty (30) days after receipt thereof, and, if Distributor accepts such offer, the Territory shall be appropriately expanded. 2. Term. The term of this Agreement shall commence as of the date set forth above, hereinafter called the Effective Date and continue for one (1) year, whereupon the Agreement Distributorship and Marketing Agreement Page 1 of 9 shall expire unless both parties agree to an extension of the term hereof, which extension may be subject to additional terms and conditions. 3. Trademarks and Trade Names. During the term of this Agreement, Manufacturer grants to Distributor a limited license to reproduce trademarks and trade names of Manufacturer as necessary for the sole purpose of allowing Distributor to fully promote and market the Products pursuant to the terms of this Agreement. Any and all trademarks and trade names associated with the Products are and shall remain the exclusive property of Manufacturer. If, during the term of this Agreement, a trademark registration is to take place in the Territory, all rights shall belong to Manufacturer, who shall also bear the costs for such registration. Whenever Distributor employs any trademark of Manufacturer to be used in any form of printed material, Distributor shall place an asterisk immediately after and slightly above the first use of the trademark referring to a footnote reading Trademark of       . (Name of Manufacturer) Distributor shall deliver to Manufacturer all Distributor's promotion and advertising material for Manufacturer's review, prior to such promotion or advertising utilizing any of Manufacturer's trademarks or trade names. Distributor agrees not to use any promotion or advertising that Manufacturer's finds unsuitable in its reasonable discretion. 4. Authority. Distributor is an independent legal entity, and the relationship between Distributor and Manufacturer is entirely based on Distributor's purchasing and selling Manufacturer's Products for Distributor's own account. Distributor shall have no authority whatsoever to bind or represent Manufacturer in any respect. Nothing contained herein shall be deemed to create a partnership between the parties or the relationship of principal and agent. 5. Distributor Marketing Obligations. Distributor agrees to use its best endeavors to promote the sale of the Products in the Territory on the maximum possible scale by all usual means and to act loyally to Manufacturer in all matters involved in this Agreement. In addition, Distributor agrees to: A. Provide Manufacturer with all sales budgets on or before each       (Date) during the term of this Agreement, outlining the quantities of Products to be sold or purchased during the next calendar year; B. Advise Manufacturer of any inquiries which it receives from any prospective customer for the supply of Products outside the Territory; C. Keep Manufacturer informed of its price lists; D. Describe itself as a distributor for Manufacturer in the Territory in all commercial documents relating to the Products; E. Inform Manufacturer immediately of any changes in Distributor's organization or method of doing business which might affect the performance of Distributor's duties hereunder; and Distributorship and Marketing Agreement Page 2 of 9 F. Keep Manufacturer fully informed at all times of the market conditions, competitive products and prices, and other facts material to the marketing of the Products in the Territory. 6. Non-Competition. During the term of this Agreement, Distributor shall not, directly or indirectly, distribute in the Territory, Manufacturer products purchased from any person other than Manufacturer. In addition, Distributor shall not, directly or indirectly, manufacture or distribute in the Territory, products which compete with the Products under this Agreement, unless otherwise agreed by the parties hereto, nor shall Distributor seek customers for the Products outside the Territory nor establish or maintain any branch or distribution depot outside the Territory for the sale of the Products. 7. Prohibited Practices. Distributor agrees not to sell the Products by mail order or similar techniques. In addition, Distributor agrees not to pledge, in any manner, the credit of Manufacturer nor to receive any money on behalf of Supplier nor to make any contracts or commitments on behalf of Manufacturer nor to make any warranties or other representations regarding the Products other than those authorized by in writing. 8. Insurance. Distributor represents that it maintains and will continue to maintain sufficient insurance under Worker's Compensation, comprehensive general liability insurance, including errors and omissions insurance and property damage insurance, in amounts sufficient to cover potential claims against Distributor. 9. Sales and Commissions. Manufacturer shall, in its sole discretion, establish the prices to be charged to Distributor for each Product       . The current Distributor (the Distributor Prices) Prices are set forth in Schedule A attached hereto. Manufacturer shall have the right, in its sole discretion, to increase or decrease the Distributor Prices upon one month's written notice to Distributor. Distributor Price increases will not affect orders already accepted by Manufacturer. Price decreases shall apply to all products not delivered. 10. Distributor Orders. Distributor shall place written orders with Manufacturer on or before       , covering quantities to be delivered during the next month's period. The (Date) quantity ordered for delivery for the first month shall be firm. The quantity ordered for delivery for the second month shall be firm with respect to       percent. The quantity ordered for delivery for the third month shall be firm with respect to       percent. Payments shall be made in cash on delivery (C.O.D.). 11. Security Interest. Manufacturer reserves a purchase money security interest in the Products to secure Distributor's payment obligations. Such security interest is retained until Distributor's payment obligations are satisfied in full. Manufacturer may file this Agreement or financing statements pursuant to the Uniform Commercial Code or other applicable law to evidence or perfect Manufacturer's security interest. Distributor agrees to execute any additional documents Manufacturer deems necessary to perfect any such security interest. Upon payment of Distributorship and Marketing Agreement Page 3 of 9 the Distributor Price for each Product ordered, Manufacturer agrees to release such security interest. 12. Commission. Distributor shall be entitled to receive a commission (the Commission) for all Products distributed within the Territory. For each Product unit distributed by Distributor, the Commission shall be the difference between the amounts charged to the customer for such Product (exclusive of applicable taxes, if any) and the appropriate Distributor Price set forth in Schedule B. Distributor shall be responsible for any and all freight or shipping costs payable hereunder or under any agreement with a customer. If Manufacturer is required to refund monies to any customer, Distributor shall return to Manufacturer the Commission it has obtained on account of such sale. 13. Sales Quotas. During the initial one (1) year term, Distributor shall meet or exceed the quotas set forth in Schedule C attached hereto. For each annual extension term, Distributor shall meet or exceed the revised quotas established by Manufacturer by written notice thereof to Distributor thirty (30) days prior to each anniversary of the Effective Date. In the event that a quota is not met by Distributor, Manufacturer may terminate this Agreement effective upon the last day of the annual term for which the quota was not met. 14. Financing. Distributor, and not Manufacturer, shall be solely responsible for all risk of nonpayment for Products distributed on credit. 15. Taxes and Licensing. Distributor shall: A. Pay all customs, import, excise, sales, and other similar duties and taxes payable in respect of the Products shipped to Distributor. B. Obtain any licenses, authorizations, permissions, and other documents, and comply with all formalities in a state for the import, export, distribution, sale and/or other disposal of the Products in and from each state. 16. Delivery and Risk of Loss A. Manufacturer shall ship the Products ordered by Distributor within the normal shipping schedule established by Manufacturer from time to time, but cannot guarantee a specific shipment date. Accordingly, Manufacturer sole obligation to Distributor shall be to ship Products as promptly as reasonably practicable. B. Delivery shall be made F.O.B. Supplier's plant. Possession of and title to all Products ordered hereunder, excepting Manufacturer's security interest therein, shall be deemed to pass to Distributor upon delivery to the common carrier at the point of shipment. Distributor shall thereupon assume all risk of loss or damage, except for any loss resulting from the negligence of Manufacturer. Transportation charges and cost of insurance which may be incurred shall be added to the Distributor Price for each Product and shall be paid by Distributor. 17. Inspection. Distributor shall inspect all Products immediately upon arrival and shall, within seven calendar days of arrival, give written notice to the common carrier and Manufacturer of any claim for damages or shortages. Distributor shall give written notice to Manufacturer within       calendar days of arrival that any Product does not conform Distributorship and Marketing Agreement Page 4 of 9 (Number) with the terms of this Agreement. If Distributor fails to give any such notice, the Products shall be deemed accepted for all purposes of this Agreement. 18. Warranty and Limitation of Liability. Manufacturer’s sole warranty with respect to Products sold is set forth in Manufacturer's Standard Conditions of Sale. However, such warranty shall in any event expire       months from delivery to Distributor. Manufacturer makes (Number) no other warranties to Distributor or any customer or other third party, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. 19. Limitation of Liability. Under no circumstances shall Manufacturer be liable to Distributor or any Customer for any indirect, consequential, incidental, special or punitive damages arising out of or in connection with this Agreement or the operation of the Products, even if Manufacturer has been advised of the possibility of such damages. Notwithstanding the foregoing, under no circumstances shall supplier have any liability whatsoever for any claim arising from or relating to this Agreement or its performance in excess of the total distributor prices paid by Distributor hereunder during the       months immediately preceding the (Number) filing of such claim. 20. Termination. A. Manufacturer shall have the right to terminate this Agreement immediately upon notice to Distributor if: (i). Distributor becomes insolvent or party to any bankruptcy or receivership proceedings or makes an assignment for the benefit of creditors; or (ii). Distributor fails to comply with the confidentiality and ownership provisions of this Agreement. Either party shall have the right to terminate this Agreement upon       days prior written notice, if within such (Number)       day period a default or material failure of any of the provisions (Number) of this Agreement is not cured. B. Distributor expressly agrees that termination according to this Agreement shall not cause Manufacturer to reimburse or pay Distributor in any way for loss of profits, investments made or for like causes. Upon termination or expiration of this Agreement for any cause, Distributor shall immediately cease representing itself as a distributor of the Products. 21. Confidentiality and Proprietary Rights Distributorship and Marketing Agreement Page 5 of 9 A. Distributor acknowledges that in the course of dealings between the parties, Distributor will acquire information about Manufacturer, its business activities and operations, its technical information and trade secrets, all of which are highly confidential and proprietary to Manufacturer (the Confidential Information). Confidential Information shall not include information generally available to or known by the public, or information independently developed outside the scope of this Agreement. Distributor shall hold all such Confidential Information in strict confidence and shall not reveal the same except pursuant to a court order or equivalent arbitration tribunal order. The Confidential Information shall be safeguarded by Distributor with at least as great a degree of care as Distributor uses to safeguard its own most confidential materials or data relating to its own business. The provisions of this Paragraph shall survive the termination of this Agreement. B. Distributor acknowledges and agrees that the Products, including without limitation, the software used therein, the specific design and structure of individual Products and their interaction, the layout designs of semiconductor integrated circuits as well as other design rights and know-how related to the Products are and shall remain the sole and exclusive property of Manufacturer and shall not be sold, used, revealed, disclosed or otherwise communicated, directly or indirectly, by Distributor to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of the industrial or intellectual property rights in or to the Products, or any part thereof, or any aspect related to or trade secret involved with the Products is hereby transferred to Distributor. In addition, Manufacturer retains all rights to modifications and changes made to the product design or software construction. Distributor shall not adapt copyrightable aspects of the Products in any way or use them to create a derivative work. It is expressly understood that no title to or ownership of any aspect of the Products, or any part thereof is hereby transferred to Distributor. 22. Specific Remedies. If Distributor commits a breach of any of the provisions of the Agreement, Manufacturer shall have, in addition to all other rights in law and equity; A. The right to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach will cause irreparable injury to such party and that money damages will not provide an adequate remedy and B. The right to require Distributor to account for and pay Manufacturer all compensation, profits, monies, accruals, increments or other tangible benefits (collectively Benefits) derived or received as the result of any transactions constituting a breach of any of the provisions of this Agreement, and Distributor hereby agrees to account for and pay such Benefits. 23. Indemnification. Distributor agrees that it will sell, handle, store, transport and use, or apply the product in a safe and reasonable manner, and in strict conformance with Manufacturer’s specifications therefore, and that Manufacturer shall not be liable for any loss, Distributorship and Marketing Agreement Page 6 of 9 damage or injury to any person or property occurring after delivery of the product by Manufacturer to Distributor. Distributor agrees that it shall indemnify and hold Manufacturer harmless from and against all claims, damages, losses, and expenses, including legal fees, arising out of or resulting from the sale, handling, storage, transport, use or application of the product by Distributor, or its employees, agents, customers, or anyone for whose actions any of them may be liable. 24. Manufacturer Declaration. Manufacturer has no actual knowledge of any present claim by any third party that the import and/or sale of the Products may infringe any patent, registered designs, trademarks, copyright, or similar rights existing or registered in any of the countries in the Territory. Manufacturer declares to the best of its knowledge that the sale and use of the Products shall not involve infringement of any third party's intellectual property right. Manufacturer does not make any further warranty, either express or implied, under statutes or common law in respect of any patents, registered designs, trademarks, copyrights, or similar rights of third parties. 25. Force Majeure. A party to this Agreement shall not be responsible or liable to the other party if the first party is prevented, hindered or delayed by reasons of any force majeure circumstances to perform its contractual obligations according to this Agreement. In this clause, force majeure circumstances shall mean any war, riot, social disturbance, act of God, strike, lockout, trade dispute or labor disturbance, accident, breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen or materials or transportation, or any other circumstances whatsoever outside the control of the party. 26. Independent Contractors. Distributor acknowledges that it is not, and shall not hold itself out as, a joint venturer, franchisee, partner, employee, servant, representative or agent of Manufacturer. It is expressly agreed that the parties hereto are acting hereunder as independent contractors, and under no circumstances shall any of the employees of one party be deemed the employees of any other party for any purpose. This Agreement shall not be construed as authority for any party to act for another party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of another party except to the extent and for the purposes expressly provided for herein. 27. Non-Solicitation. Unless otherwise mutually agreed to by the parties in writing, each party agrees not to hire or to solicit the employment of any personnel of the other party. 28. Assignment. This Agreement and the rights granted hereunder may not be assigned by either party without the prior written consent of the other, except that Manufacturer may assign this Agreement without the written consent of Distributor to a parent company, subsidiary, affiliate or a purchaser of all or substantially all of Manufacturer's rights in the Products. 29. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. Distributorship and Marketing Agreement Page 7 of 9 30. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 31. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of       . (Name of State) 32. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 33. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 34. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 35. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 36. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 37. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 38. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. Distributorship and Marketing Agreement Page 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly authorized representative as of the date set forth above. (Name of Manufacturer) (Name of Distributor) By: By: (Signature of Officer) (Signature of Officer)             (Printed Name & Office in Corporation) (Printed Name & Office in Corporation) Distributorship and Marketing Agreement Page 9 of 9