AUTHORIZED DEALER AGREEMENT

Transcription

1 AUTHORIZED DEALER AGREEMENT This agreement is entered into as of the Acceptance Date (defined below), by and between TREBOR INDUSTRIES, INC. d/b/a BROWNIE S Third Lung, hereafter referred to as BROWNIE S, a Florida corporation and, hereafter referred to as DEALER. RECITALS 1. Underlying Facts/Recitals 1.1 BROWNIE S is engaged in business of manufacturing, developing, marketing, and distributing various sports diving equipment and consumer products bearing BROWNIE S product label (the Products ). 1.2 BROWNIE S has established a policy to sell Products through authorized DEALERs who are committed to the safe and successful marketing of the Products through extensive presale, point of sale education and services. 1.3 DEALER and BROWNIE S desire to enter into this agreement whereby DEALER will become an authorized DEALER for the Products on the terms and conditions set forth below. 2. Appointment as DEALER 2.1 BROWNIE S hereby appoints DEALER, and DEALER hereby accepts such appointment, as an Authorized DEALER for the sale of the Products in accordance with the terms and conditions set forth below. 2.2 DEALER acknowledges and agrees the foregoing appointment is a nonexclusive right to sell the Products, at the location(s) set forth below ( Authorized Location(s) ); BROWNIE S Internet policy allows only authorized DEALERs to advertise and promote our products online. 2.3 BROWNIE S has established a price for products based on the product value, the Best Price Guarantee. BROWNIE S acknowledges that DEALER alone is free to determine the price for which DEALER will advertise and/or sell the product(s). However, BROWNIE S announces that it may cease sales to DEALER should DEALER choose to advertise at a discount below the current Best Price Guarantee for any BTL product. For the purposes of this policy, advertisement includes ads and promotion placed with television, radio, newspapers, magazines, postcards, flyers or catalogs (including direct mail), computer media (including, but not limited to, internet web sites and 3 rd party auction sites) and in-store pricing announcements. 2.4 DEALER shall not, by virtue of this or any other agreement with

2 Page 2 of 6 BROWNIE S or under common law, acquire any rights in the name BROWNIE S, any derivation thereof, or any other trademark, service mark or copy-righted material of BROWNIE S (collectively the BROWNIE S MARKS ). DEALER may, however, use the BROWNIE S MARKS for sales, advertising and display purposes in accordance with policies and guidelines established from time to time by BROWNIE S. DEALER agrees that within ten (10) days after termination of this agreement, it will completely cease using the BROWNIE S MARKS including, without limitation, all display signs and materials, advertising, catalogs and other printed matter or samples in its possession or under its control containing or bearing the BROWNIE S MARKS or using such material in any other manner or in connection with any business conducted by DEALER. 2.4 DEALER acknowledges and agrees that DEALER is an independent contractor and will not perform any services under this agreement as an employee, agent or servant, of BROWNIE S. Except as specifically set forth in this agreement, BROWNIE S shall have no right to control or direct the method, details, or means by which a DEALER performs the services required under this agreement. Nothing contained in this agreement shall be deemed or constitute a partnership, joint venture or any other relationship between BROWNIE S and DEALER, and DEALER shall have no authority to make any commitment, enter into any contract, incur any liability or obligation on behalf of BROWNIE S or otherwise bind BROWNIE S in any respect. 3. General Duties of DEALER DEALER s appointment and continued status as an Authorized DEALER are subject to DEALER s compliance with each of the following terms and conditions throughout the term of this agreement. 3.1 DEALER shall use his best efforts to promote conscientiously and diligently, the sale of the Products on a full-time basis in a manner that will protect BROWNIE S and DEALER s reputations and goodwill. Specifically, DEALER shall maintain its business in a manner that assures (i) an attractive display and demonstration of the products in accordance with the marketing and distribution policies guidelines and campaigns established from time to time by BROWNIE S for its Authorized DEALERs and (ii) sufficient inventory of the Products at all times to meet current and anticipated consumer demand. 3.2 DEALER shall advertise in reasonable amounts to promote the sale of the Products to the greatest extent possible in the market area surrounding each Authorized Location; and cooperate with BROWNIE S and utilize all advertising and promotional campaign materials, brochures, catalogs, display signs ad other printed matter developed and produced by BROWNIE S for its Authorized DEALERs. 3.3 DEALER shall review the care and maintenance of the Brownie's system with the customer at time of delivery, to include assembly and start up procedures. 3.4 DEALER shall maintain adequate general liability insurance covering the acts an omission of its agents and employees and instructors in connection

3 Page 3 of 6 with the marketing, sale, use, and servicing of, and training and instruction for, the Products. BROWNIE S shall not be liable or responsible for any accidents, loss, injury or damage to any individual or Product attributable to the negligence of DEALER, its agents, employees and/or instructors in the connection with the sale, use, training, instruction, and/or servicing of the Products, and DEALER shall indemnify, defend, protect, and hold BROWNIE S, its partners, officers, directors, employees, agents, successors, and assigns, harmless from and against any and all claims, demands, actions, suits, obligations, liabilities, damages, losses, costs, and expenses, including attorney fees, of any kind or nature arising out of, or in connections with the negligence of DEALER, its agents, employees, and instructors or the breach or failure to perform any of DEALER s covenants or obligations under this agreement. DEALER s obligations under this paragraph shall survive any termination or expiration of this agreement. 3.5 DEALER shall promptly report to BROWNIE S each charge, complaint, claim, request or comment, of a substantial or repetitive nature, received by the DEALER from any customer or consumer relating to any Product. 3.6 DEALER shall not engage in any illegal, deceptive, misleading, or unethical advertising, promotions, or other practice as determined by BROWNIE S. 3.7 DEALER shall not sell or transfer the Products to any other entity which is not an Authorized Location, group, organization or individual whose purpose it is to resell such products without the prior written consent of BROWNIE S. 3.8 DEALER shall allow BROWNIE S representatives to enter the Authorized Location(s), at any time during normal business hours, for the purpose of determining whether DEALER is complying with the terms and conditions of this agreement. 3.9 DEALER shall pay, as and when due, all amounts payable to BROWNIE S in accordance with the terms and conditions of applicable orders, invoices and/or other written agreements between BROWNIE S and DEALER in effect from time to time. Should BROWNIE S incur expenses relating to the collection of monies due and unpaid, including but not limited to attorney s fees, court costs, and bank charges, DEALER agrees to reimburse BROWNIE S for said expenses DEALER shall familiarize all its personnel with the Medical Questionnaire and Contraindications to Diving forms located in the Brownie s Owner s Manual. DEALER further agrees that it will ensure every unit sold will have an appropriate Owner s Manual with it, and that the purchaser understands the presence and importance of the Medical Questionnaire and Contraindications to Diving forms contained therein. DEALER shall refer any uncertified customers to the Brownie's Online Training Program. 4. BROWNIE S Duties. It is the policy of BROWNIE S to develop, test and market safe, high quality, state of the art diving products through DEALERs who promote and sell BROWNIE S products. In furtherance of the foregoing policy, BROWNIE S shall perform the following obligations and duties throughout the term of this agreement:

4 Page 4 of 6 5. Term 4.1 Develop for distribution to all DEALERs advertising and promotional catalogs, manuals and other sales support materials. 4.2 Periodically conduct, at locations determined by BROWNIE S, sales clinics for DEALERs and their staff. 4.3 Maintain a sufficient number of factory sales personnel to maximize service to DEALER and its customers including (i) providing prompt, personalized responses to all DEALER and customer telephone calls and written inquiries and/or complaints and (ii) prompt processing and servicing of all warranty claims of BROWNIE S products. 4.4 Conduct business legally and maintain adequate levels of product liability insurance. (Note, DEALER is responsible for and must obtain their own product liability insurance and, in no event, will the DEALER be deemed an additional insured under BROWNIE S s insurance policies.) Subject to prior termination in accordance with Paragraph 6.1 or 6.2 of this agreement, the term of this agreement shall be for a period of one year commencing on the date of execution of this agreement by BROWNIE S (the acceptance Date ), and shall be automatically renewed for successive one year periods if not previously terminated by written notice from either party at least 30 days prior to the end of any term. 6. Termination 6.1 Termination without Cause. Either party may terminate this agreement at any time, without cause, by written notice to the other not less than thirty (30) days prior to the effective date of such termination. 6.2 Termination for Cause. BROWNIE S may terminate this agreement at any time by delivery of written notice to DEALER not less than (10) days prior to the effective date of such termination in the event the (i) DEALER breaches any representation, warranty or covenant under this or any other agreement between BROWNIE S and DEALER, (ii) BROWNIE S, IN ITS SOLE DISCRETION, DETERMINES THAT DEALER has failed to perform faithfully and diligently its duties and obligations under this or any agreement between BROWNIE S and DEALER, or (iv) the filing of a voluntary or involuntary bankruptcy petition with respect to the DEALER. 6.3 Accounting/Repurchase of Products. Upon termination or expiration of this agreement, all amounts due and payable to BROWNIE S under this or any other agreement between BROWNIE S and DEALER shall become immediately due and payable, and at any time BROWNIE S shall have the option, but not the obligation, to repurchase from DEALER any and/or all Products remaining unsold by DEALER as of such date, at the net prices at which such products were originally purchased by DEALER or at any reduced price agreed upon by the parties for obsolete or dated products. Promptly after receipt of written notice and termination of this Agreement, DEALER shall furnish BROWNIE S with an inventory of all Products in its

5 Page 5 of 6 7. General Provision possession and shall immediately cease to use any BROWNIE S Marks in connection with DEALER s promotional advertising. 7.1 Attorneys Fees. If either party defaults under the terms of this agreement and the other party employs an attorney to enforce or interpret the terms of this agreement, whether or not legal proceeding are commenced, then such other party shall be entitled to recover from the defaulting party attorneys fees, costs and expenses incurred. 7.2 Notices. All notices, requests, demands and other communications under this agreement shall be in writing and shall be deemed duly given (i) on the date of delivery if personally delivered, (ii) on the business day after delivery by overnight courier, telegram or facsimile, or (iii) on the second business day after mailing if mailed by first class mail, postage prepaid, to the parties at their addresses set forth below, or such other address designated from time to time in writing by such party to all other parties. 7.3 Amendment and Waiver. This agreement may be amended only by a written agreement signed by all parties to this agreement. Waiver of any provisions of this agreement shall not be deemed or constitute a waiver of any other provisions. 7.4 Successors and Assigns. This agreement shall be binding upon and for the benefit of the parties and their respective heirs, beneficiaries, legal representative, successors and assigns. 7.5 Governing Law and Severability. This agreement has been entered into in and shall be governed by and constructed under the laws of the State of Florida. BY EXECUTION OF THIS AGREEMENT, DEALER SPECIFICALLY CONSENTS TO PERSONAL AND SUBJECT MATTER JURISDICTION OF ALL DISPUTES REGARDING THIS AGREEMENT IN THE STATE OF FLORIDA, UNITED STATES OF AMERICA. All proceedings with respect to this agreement shall be commenced and maintained only in the Seventeenth Judicial Circuit, Broward County, State of Florida, United States of America. If any provision of this agreement is invalid or contravenes Florida law or the laws of any other jurisdiction where this agreement is to be performed, such provision shall be deemed not to be part of this agreement, but only with respect to the jurisdiction in which it is invalid, and shall not affect the validity or enforceability of the remaining provisions. 7.6 Entire Agreement. This agreement represents the entire agreement between the parties with respect to the subject matter set forth above, and supersedes all previous oral and written agreements, communications, representations or commitments. 7.7 LIMIT OF LIABILITY. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR COMPENSATION OR REIMBURSEMENT OR DAMAGES ON ACCOUNT OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE

6 Page 6 of 6 OF BUSINESS GOODWILL OF EITHER PARTY OR ANY REASON WHATSOEVER. WITH RESPECT TO ANY ORDER, THE PERFORMANCE THEREOF, OR THE PRODUCTS COVERED THEREBY, BROWNIE S LIABILITY FOR NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED DEALER S PURCHASE PRICE OF THE PRODUCTS PERTAINING THERETO AND IN NO EVENT SHALL BROWNIE S BE LIABLE TO DEALER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. 7.8 Effectiveness of this Agreement. This agreement shall become effective only upon its execution and acceptance by an officer of BROWNIE S in its Fort Lauderdale, Florida headquarters. 7.9 No Assignment. DEALER may not assign all or any portion of its rights and obligations under this agreement to any third party, successor, or assign, without the prior written consent of BROWNIE S. Any such attempted or purported assignment or transfer without consent shall be null and void and terminate this agreement. I agree to the above Authorized DEALER Agreement provision. DEALER: By: (printed name) Signature Title: Date: Company/Business name: Address: Resale or Tax ID # Trebor Industries, Inc. d/b/a Brownie s Third Lung A Florida Corporation By: Signature Title: Date: