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 mark 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 mark 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 bill 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 D
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