Exhibit 10.9
[TVI Corporation Letter
head]
April 3, 2002
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RE:
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Distributor
Agreement
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Dear Bob:
When countersigned below, this
Letter Agreement will confirm our formal agreement regarding the
terms whereby Fisher Safety, a division of Fisher Scientific
Company LLC., Inc. (referred to herein as
“Distributor”) agrees to act as the non-exclusive agent
for TVI Corporation (referred to herein as “TVI”) for
the sale and distribution of TVI’s line of integrated soft
shelter systems for use in the hospital, military, and public
safety markets (collectively referred to herein as the
“Products”) to end user customers (referred to herein
as “End Users”).
1. Relationship of the
Parties. The relationship between TVI and Distributor shall be
that of seller and buyer and nothing in this Agreement shall be
construed as establishing a partnership or fiduciary relationship
of any kind between the parties.
2. Prices. The minimum prices
payable for the Products are listed on Exhibit A attached hereto,
as amended from time to time. Any prices on Exhibit A are subject
to increase from time to time by TVI, provided that no change in
prices shall be effective with respect to any Orders already
accepted by Distributor or TVI. In addition to the minimum prices
listed on Exhibit A, as amended from time to time, Distributor
shall also collect any sales, use, value added or other taxes or
governmental charges attributable to the sale and distribution of
the Products. Prices are FOB Glenn Dale, MD, and distributor pays
all shipping and insurance related costs.
3. Submission of Orders .
Distributor shall submit all orders for any of the Products
(“Orders”) in writing to TVI at least thirty
(30) days in advance of the requested delivery date. If TVI is
unable to satisfy any Order within the time required or is
otherwise unable to accept the order, it shall notify Distributor
within five (5) business days after receipt of the Order.
Distributor understands and agrees that any terms and conditions on
its purchase order form will be superceded by this Letter
Agreement, and in the event such terms and conditions conflict with
the terms and conditions of this Letter Agreement, the terms and
conditions of this Letter Agreement shall control.
4. Payment . The payment for
all Products ordered by Distributor from TVI, and all other charges
payable by Distributor, shall be due net thirty (30) days from
the date of shipment by TVI. Distributor shall pay interest on all
payments for payment received more than thirty (30) days after
the date of shipment at the lesser of ONE AND ONE-HALF
PERCENT(l-l/2%) PER MONTH, or the maximum rate permitted by
applicable law. Distributor shall make payment to TVI for all
Orders, regardless of whether or not Distributor has received
payment from the End User.
5. Termination . Either party
shall have the right to terminate this Agreement if the other party
breaches a material term of this Agreement, and fails to cure such
a breach within sixty (60) days from receipt of written notice
from the non-breaching party. In addition, either party may
terminate this Agreement for convenience upon sixty (60) days
prior written notice to the other party. In the event of
termination of this Agreement for any reason, Distributor will pay,
within 60 days of any such termination, TVI for all Orders that
have been submitted to TVI prior to such termination. Upon receipt
of payment for all Orders, TVI shall ship to Distributor all
applicable Products. Neither Party shall incur any liability
whatsoever for any damage, loss, or expense of any kind suffered or
incurred by the other arising from or incident to any terminations
or expiration of this Agreement.
7. Use of TVI Trademarks.
During the term of this Agreement, Disturber may use TVI’s
names, marks, logos, designs, and other brand designations used by
TVI in connection with the Products (collectively, the “TVI
Trademarks”), on a nonexclusive basis solely in connection
with its bona fide marketing and promotion of the
products pursuant to this Agreement. Such use must comply with
TVI’s trademark use policy, which may be
Product Innovation and
Leadership Since 1977
www.tvicorp.com
updated from time to time in TVI’s sole
and absolute discretion; provided, however, that notice of any
updates or other changes to such use policy are provided to
Distributor within a reasonable period in advance of their
effective date and such changes do not negatively impact the rights
granted to Distributor under this Agreement. All right, title and
interest to the TVI Trademarks, and the goodwill pertaining to
Distributor’s use of the TVI Trademarks, are reserved and
shall at all times vest and remain in TVI.
8. Intellectual Property
Rights. TVI shall retain all right, title and interest in the
Products, and Distributor will not obtain any rights in the
Products as a result of its responsibilities hereunder.
9. Product Warranty. The
warranty with respect to the Products is as described in the
warranty agreement provided with each Product (“Warranty
Agreement”). This is the only warranty offered by TVI with
respect to the Products. TVI does not warrant that the Product will
meet the requirements of any Customer. THE WARRANTIES CONTAINED
IN THE WARRANTY AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Distributor Warranties .
Distributor represents and warrants that it: (a) will conduct
business in manner that reflects favorably at all times on TVI and
the good name, goodwill and reputation of the Products;
(b) will not engage in any deceptive, misleading, or unethical
practices; (c) will not make any false or misleading
representations, with regard to TVI or the Products; and
(d) will be responsible for any representations, warranties,
or guarantees t
