Tuesday, October 22, 2013


THIS AGREEMENT is made this ______ day of ______, 2---, by and between ______ [Name of ‎Company], with its principal place of business located at ______ [Address] (the "Company") and ______ ‎‎[Name of Distributor], ______ [Address] ______ (the "Distributor").‎

NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it is ‎agreed as follows:‎


‎1. Distribution Right. The Company hereby appoints and grants Distributor the exclusive and ‎non-assignable right to sell the equipment of the Company ("Equipment") listed in the then current "Price ‎List" (Exhibit "A" attached hereto) [omitted]. The distribution right shall be limited to customers who have ‎places of business in, and will initially use the Company's products in the geographic area set forth in ‎Exhibit "B" attached hereto.‎

‎2. Prices. All prices stated are FOB the Company's offices in ______ [Address]. Prices do not ‎include transportation costs which shall be borne by Distributor. Prices do not include federal, state or local ‎taxes applicable to the products sold under this Agreement. An amount equal to the appropriate taxes will ‎be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. ‎Distributor shall pay such amount to the Company unless Distributor provides Company with a valid tax ‎exemption certificate authorized by the appropriate taxing authority.‎

‎3. Terms. Terms are net cash upon delivery, except where satisfactory credit is established in ‎which case terms are net thirty (30) days from date of delivery. The Company reserves the right to revoke ‎any credit extended at the Company's sole discretion. Distributor agrees to pay such invoices when due ‎regardless of other scheduled deliveries. Invoices not paid within thirty (30) days of the invoice date will ‎have one and onehalf percent (1-1/2%) per month finance charge assessed against the unpaid balance ‎from the date of invoice until the date of payment.‎

‎4. Title to Equipment. The Company hereby reserves a purchase money security interest in each ‎unit of Equipment sold or to be sold under this Agreement and in the proceeds thereof, if Distributor shall ‎have sold or leased a unit(s) to another party prior to Distributor paying Company the purchase price for ‎such Unit as set forth herein, in the amount of such unit's purchase price. These interests will be satisfied by ‎payment in full. A copy of this Agreement may be filed with the appropriate uthorities at any time after ‎the signature by the Company as a financing statement in order to perfect the Company's security interest. ‎On the request of the Company, Distributor shall execute financing statement(s) and other instruments the ‎Company shall desire to perfect a security interest in the Equipment for its purchase price. Title to the ‎Equipment shall pass to Distributor upon receipt by the Company of payment in full for all amounts due ‎for such units of Equipment.‎

‎5. Competitive Equipment. Distributor agrees not to represent or sell other products which are ‎deemed to be competitive with the Company's Equipment unless agreed to by the Company by written ‎notice.‎


‎1. Sales. Distributor shall use its best efforts to promote the sale and distribution of the Equipment ‎and to provide adequate support, which efforts shall include the following:‎

‎(a) Establishing and maintaining appropriate, attractive and accessible premises and ‎facilities for the display and demonstration of Equipment;‎

‎(b) Provide an adequate, trained sales and technical staff to promote the sale and ‎support of the Equipment;‎

‎(c) Undertake promotional campaigns and canvas prospective users to stimulate the ‎sales of Equipment;‎

‎(d) Provide Company with forecasts every month of its probability requirements for the ‎next six months for Equipment and accessories, such forecasts to be in such manner and on ‎forms to be specified by Company and agreed to by Distributor.‎

‎2. Advertising. Company shall, upon request, assist the Distributor on all advertising, sales ‎promotion, and public relations campaigns to be conducted, including providing Distributor with ‎documentation of previous promotional campaigns conducted in connection with the Equipment, and ‎shall provide necessary technical information and assistance.‎

‎3. Training. Company shall furnish training of Distributor's sales and technical representatives at ‎various times and locations as shall be designated for this purpose by Company. Enrollment in training ‎courses shall be limited to a reasonable number of persons who shall be sufficiently qualified to take the ‎courses. Distributor shall pay the salaries and all travel and lodging expenses and subsistence of its ‎representatives.‎


‎1. Purchase Orders. Distributor shall order Equipment by written notice to Company. Each order ‎shall specify the number of units to be shipped, the type of units to be shipped (as identified by Company ‎model number designations indicated in the Price List) including all optional features, the desired method ‎of shipment and the installation site. Company shall indicate its acceptance of such release by returning a ‎signed copy to Distributor. Company agrees to ship units to Distributor as close as possible to the delivery ‎schedule set forth in each order as accepted by Company, unless Company otherwise indicates in writing. ‎Company shall not be required to honor any release which: (a) specifies a shipping date earlier than ‎Company's thencurrent delivery schedule for the date such release is received by Company and/or (b) ‎specifies a quantity to be delivered in any one month within the current delivery schedule which is greater ‎than one hundred percent (100%) of the total quantity shipped in the preceding sixty (60) day period.‎

‎2. Equipment Acceptance. The criterion for acceptance of Company Equipment by Distributor ‎shall be the successful operation of the Equipment using Company's standard test procedures and ‎diagnostic test programs applicable to the Equipment involved.‎

‎3. Shipment. All shipments of Equipment shall be made FOB Company's plant and liability for ‎loss or damage in transit, or thereafter, shall pass to Distributor upon Company's delivery of Equipment to ‎a common carrier for shipment. Shipping dates are approximate and are based, to a great extent, on ‎prompt receipt by Company of all necessary ordering information from Distributor. Distributor shall bear ‎all costs of transportation and insurance and will promptly reimburse Company if Company prepays or ‎otherwise pays for such expenses. Company shall not be in default by reason of any failure in its ‎performance under this Agreement if such failure results from, whether directly or indirectly, fire, explosion, ‎strike, freight embargo, Act of God or of the public enemy, war, civil disturbance, act of any government, ‎de jure or de facto, or agency or official thereof, material or labor shortage, transportation contingencies, ‎unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, ‎restriction, epidemic, or catastrophe, lack of timely instructions or essential information from Distributor, or ‎otherwise arisen out of causes beyond the control of the Company. Nor shall the Company at any time be ‎liable for any incidental, special or consequential damages.‎

‎4. Delay. Distributor may delay for a period of thirty (30) days upon giving the Company written ‎notice at least fifteen (15) days prior to the scheduled delivery date. In the event distributor delays delivery ‎for more than thirty (30) days with notification as set forth above, or for a period of more than five (5) ‎days written notice, Distributor shall pay to Company, as a service charge, an amount equal to 1/360th of ‎twentyfive percent (25%) of the Purchase Price for each day of such delay to be computed from the first ‎day of such delay through the termination of such delay.‎

‎5. Cancellation. Distributor may, at any time prior to the scheduled date of shipment, cancel any ‎or all Equipment on order upon giving timely written notice and upon payment of the following ‎cancellation charges for each unit cancelled. The cancellation charges, intended as liquidated damages ‎and not penalties, are as follows:‎

Number of Days Prior to Scheduled Date of ‎Shipment that Notice of Cancellation is Received ‎by Company:‎ Cancellation Charges Expressed as a Percentage of ‎Purchase Price:‎
  • ‎0-5 days‎ ‎%‎
  • ‎5-15 days‎ ‎%‎
  • ‎16-30 days‎ ‎%‎
  • ‎31 days or more‎ ‎%‎

‎1. Use of Company Name. Company expressly prohibits any direct or indirect use, reference to, ‎or other employment of its name, trademarks, or trade name exclusively licensed to Company, except as ‎specified in this Agreement or as expressly authorized by Company in writing. All advertising and other ‎promotional material will be submitted to Company at least two weeks in advance and will only be used if ‎Company consents thereto, which consent shall not be unreasonably withheld. Company hereby ‎authorizes and requires Distributor's use of the Company's insignia or lettering which will be on the products ‎at the time of the delivery. Company hereby authorizes the Distributor's use of the legend set forth below. ‎The Company shall submit to the Distributor in writing full particulars prior to any use of the authorized ‎legends, on stationery, invoices, promotion material or otherwise, and shall not proceed with such use ‎unless and until the Company's written approval shall have been received.‎

Authorized legend shall be the following:‎ [Name of Company]‎

If the authorized legend is used on any stationery, invoices, promotion material or otherwise by Distributor, ‎Distributor will, on termination of this Agreement, or upon request of Company, discontinue the use of ‎such legend on any stationery, invoices, promotion material or otherwise and thereafter will not use, either ‎directly or indirectly in connection with its business, such legend or any other names, titles of expressions so ‎nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public.‎

‎2. Patent Indemnity. Company agrees, at its own expense, to indemnify, defend and hold ‎harmless each Distributor and its customers from and against every expense, damage, cost and loss ‎‎(including attorneys' fees incurred) and to satisfy all judgments and decrees resulting from a claim, suit or ‎proceeding insofar as it is based upon an allegation that the Equipment or any part thereof furnished by ‎Company or any process which is practiced in the customary use of the Equipment is or has been ‎infringing upon any patent, copyright or proprietary right, if Company is notified promptly of such claim in ‎writing and given authority, and full and proper information and assistance (at Company's expense) for ‎the defense of same. In case the Equipment, or any part thereof, in such suit is held to constitute an ‎infringement and the use of said Equipment or part is enjoined, Company shall, in its sole discretion and at ‎its own expense, either procure for the indemnitee the right to continue using said Equipment or part or ‎replace or modify the same with nonperformance or capacity or affect its compatibility with the hardware ‎or firmware comprising the Equipment or the software utilized thereon.‎

‎3. Drawings and Data. The Company normally supplies all necessary data for the proper ‎installation, test, operation and maintenance of its Equipment. Portions of this data are proprietary in ‎nature and will be so marked. The Distributor agrees to abide by the terms of such markings and to be ‎liable for all loss or damage incurred by the Company as a result of the improper or unauthorized use of ‎such data. The Company retains for itself all proprietary rights in and to all designs, engineering details, ‎and other data pertaining to any Equipment specified in the contract and to all discoveries inventions, ‎patent rights, etc., arising out of work done in connection with the contract and to any and all Equipment ‎developed as a result thereof, including the sole right to manufacture any and all such products. The ‎Distributor shall not contact the Company's suppliers, or any other person, for the purpose of manufacture.‎

‎4. Title to Products and Documentation Package. Distributor acknowledges that the Equipment ‎and documentation listed in Schedule 1 are the property of Company, and that the products are being ‎made available to Distributor in confidence and solely on the basis of its confidential relationship to ‎Company, Distributor agrees not to print, copy, provide or otherwise make available, in whole or in part, ‎any portion of an original or modified Equipment Documentation Package or related materials.‎


‎1. Equipment Warranty. Company warrants that Distributor shall acquire Equipment purchased ‎hereunder free and clear of all liens and encumbrances except for Company's purchase money security ‎interest defined in Articles I, 4, above. Company further warrants all Equipment to be free from defects in ‎material or workmanship under normal use and service for a period of [e.g., ninety (90) days] from the ‎date of delivery. All repair covered by this warranty must be done at Company's factory, or other such ‎warranty repair facilities of Company as designated by Company unless Company specifically directs that ‎this service be performed at another location. Any defect corrected within ninety (90) days and found to ‎be within this scope of the warranty will be repaired by Company and all charges for labor and material, ‎will be borne by Company. If it is determined that either no fault exists in Company, or the damage to be ‎repaired was caused by negligence of Distributor, its agents, employees or customers, Distributor agrees to ‎pay all charges associated with each such repair. THIS CONSTITUTES THE SOLE WARRANTY MADE ‎BY COMPANY EITHER EXPRESSED OR IMPLIED. THERE ARE NO OTHER WARRANTIES ‎EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, HEREIN, INCLUDING ‎THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR ‎PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL OR ‎CONSEQUENTIAL DAMAGES AND DISTRIBUTOR'S REMEDIES SHALL BE LIMITED TO REPAIR ‎OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS.‎

‎2. Misuse of Equipment. Any tampering, misuse or negligence in handling or use of Equipment ‎renders the warranty void. Further, the warranty is void if, at any time, Distributor attempts to make any ‎internal changes to any of the components of the Equipment; if at any time the power supplied to any part ‎of the Equipment exceeds the rated tolerance; if any external device attached by Distributor creates ‎conditions exceeding the tolerance of the Equipment; or if any time the serial number plate is removed or ‎defaced. OPERATION OF THE EQUIPMENT THAT RENDERS THIS WARRANTY VOID WILL BE ‎DEFINED TO INCLUDE ALL OF THE POSSIBILITIES DESCRIBED IN THIS PARAGRAPH, ‎TOGETHER WITH ANY PRACTICE WHICH RESULTS IN CONDITIONS EXCEEDING THE DESIGN ‎TOLERANCE OF THE EQUIPMENT.‎


‎1. Availability. Spares, as used herein, shall be defined as Company's standard subassemblies ‎and parts used to fabricate and/or repair the Equipment manufactured by the Company. Company shall ‎make spares for purchase by Distributor for a period of not less than five (5) years after shipment of the ‎last unit to Distributor hereunder. Such spares will be available to Distributor at prices, terms and conditions ‎in effect at the time such spares are purchased. No provision in this Paragraph, or in any other part of this ‎Agreement, shall relieve Distributor of Distributor's responsibility to stock spares. Distributor is expected to ‎maintain an adequate inventory of spares to support the Equipment purchased hereunder.‎


‎1. Term. The term of this Agreement shall be for [e.g., five years] from the date hereof, unless ‎sooner terminated. Termination shall not relieve either party of obligations incurred prior thereto.‎

‎2. Termination. This Agreement may be terminated only:‎

‎(a) By either party for substantial breach of any material provision of this Agreement by ‎the other, provided due notice has been given to the other of the alleged breach and such other ‎party has not cured the breach within [e.g., thirty (30) days] thereof; or

‎(b) By the Company if: there is an unacceptable change in the control or management ‎of the Distributor; if the Distributor ceases to function as a going concern or makes an assignment ‎for the benefit of creditors; if a petition in bankruptcy is filed by or against the Distributor, ‎resulting in an adjudication of bankruptcy; or, if the Distributor fails to pay its debts as they ‎become due and provided due notice has been given by the Company to the Distributor and the ‎Distributor has not cured such breach within thirty (30) days thereof;‎

‎(c) By Company at the end of the third year of this Agreement, upon the Company ‎paying to Distributor the sum of $______ and having given to Distributor ninety (90) days ‎advanced written notice of its intention to so terminate;‎

‎(d) Upon termination of this Agreement all further rights and obligations of the parties ‎shall cease, except that Distributor shall not be relieved of (i) its obligation to pay any monies due, ‎or to become due, as of or after the date of termination, and (ii) any other obligation set forth in ‎this Agreement which is to take effect after the date of termination. Distributor shall have the right ‎to continue to purchase spare parts in accordance with Article VI.‎


‎1. Notice or Communication. Any notice or communication required or permitted hereunder ‎‎(other than Administrative Notice) shall be in writing and shall be sent by registered mail, return receipt ‎requested, postage prepaid and addressed to the addresses set forth below or to such changed address as ‎any party entitled to notice shall have communicated in writing to the other party. Notices and ‎communications to Company shall be sent to:‎ [Name and Address of Company]‎

Notices and communications to Distributor shall be sent to address shown on first page of this Agreement. ‎Any notices or communications to either party hereunder shall be deemed to have been given when ‎deposited in the mail, addressed to the then current address of such party.‎

‎2. Date of Effectiveness. Any such notice or communication so mailed shall be deemed delivered ‎and effective seventytwo (72) hours after mailing thereof in ...............‎


‎1. Relationship of Parties. The relationship between the parties established by this Agreement ‎shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Distributor ‎are expressly reserved to the Company. The Distributor shall have no right, power or authority in any way ‎to bind the Company to the fulfilment of any condition not herein contained, or to any contract or ‎obligation, expressed or implied.‎

‎2. Independence of Parties. Nothing contained in this Agreement shall be construed to make the ‎Distributor the agent for the Company for any purpose, and neither party hereto shall have any right ‎whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. The Distributor ‎specifically agrees that it shall have no power or authority to represent the Company in any manner; that it ‎will solicit orders for products as an independent contractor in accordance with the terms of this ‎Agreement; and that it will not at any time represent the Company in any manner; that it will solicit orders ‎for products as an independent contractor in accordance with the terms of this Agreement; and that it will ‎not at any time represent orally or in writing to any person or corporation or other business entity that it has ‎any right, power or authority not expressly granted by this Agreement.‎

‎3. Indemnity. The Distributor agrees to hold the Company free and harmless from any and all ‎claims, damages, and expenses of every kind or nature whatsoever (a) arising from acts of the Distributor; ‎‎(b) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (c) ‎arising from acts of third parties in relation to products sold to the Distributor under this Agreement, ‎including, but not limited to execution of liens and security interests by third parties with respect to any ‎such products.‎

‎4. Assignment. This Agreement constitutes a personal contract and Distributor shall not transfer ‎or assign same or any part thereof without the advance written consent of Company.‎

‎5. Entire Agreement. The entire Agreement between the Company and the Distributor covering ‎the Equipment is set forth herein and any amendment or modification shall be in writing and shall be ‎executed by duly authorized representatives in the same manner as this Agreement. The provisions of this ‎Agreement are severable, and if any one or more such provisions are determined to be illegal or otherwise ‎unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions ‎hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto. Any ‎provisions, terms or conditions of Distributor's Purchase Orders which are, in any way contradicting of this ‎Agreement, except those additional provisions specifying quantity and shipping instructions, shall not be ‎binding upon Company and shall have no applicability to the sale of goods by Company to Distributor.‎

‎6. Applicable Law. This Agreement shall be governed by the laws of the State of [Name of State] ‎and is accepted by Company at its Corporate Office in [Address of Company]. All payments hereunder ‎shall be made at Company's offices at ______. Company's rights granted hereby are cumulative and in ‎addition to any rights it may have at law or equity.‎

‎7. Separate Provisions. If any provision of this Agreement shall be held to be invalid, illegal or ‎unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be ‎affected or impaired thereby.‎

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly ‎authorized officers as of the date and year indicated above.‎


By:______________________ ‎(Authorized Officer)‎


By:______________________  ‎(Authorized Officer)‎


PRICE LIST AS OF ______, 2----

‎1. Order No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . [Price Per Unit]‎

‎2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .‎

‎3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .‎

‎4. Future Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ‎

Future orders are to be priced such that the Distributor will receive a distributors 35% discount from the ‎then current manufacturers list price for Equipment, together with the necessary components will be priced ‎on an order by order basis with the Distributor, receiving a 10% distributors discount on the price of each ‎unit ordered.‎



Subject to the provisions of sections ______ and ______ of this Agreement, the following country or ‎countries shall constitute the Territory:‎ ‎[Describe Geographic Areas]‎ _________________________________________ ‎

No comments:

Post a Comment

Related Posts Plugin for WordPress, Blogger...