Reseller AGREEMENT

Between

Houston Radar LLC

AND

Reseller Company

THIS AGREEMENT, DATED THIS _____day of ____, 2013 between Houston Radar LLC, a Texas Limited Liability Company with offices at 1006 Rosemeadow Drive, Houston, TX 77094, (hereafter, the “Company”), and Reseller Companya corporation with offices at ______(hereafter, the “Reseller”).

PURPOSE OF AGREEMENT

  1. Whereas, Company is a leading supplier of high quality electro-mechanical products, which it distributes in the United States and elsewhere in the world. Company is interested in distributing the products and in formalizing an Agreement with Reseller; and
  1. Whereas Reseller is interested in distributing the Company’s products in the Territory (as defined below), and in formalizing an agreement with Company.
  1. Purposes. The purpose of this Agreement is to establish the terms under which Company’s products will be distributed by Reseller within the Territory, to establish certain marketing goals to be achieved by Reseller within the Territory and hereby appoint Reseller to resell the Products in the Territory. This Agreement replaces any previous reseller agreement executed between Company and Reseller.

NOW THEREFORE, in consideration of the foregoing and mutual promise set forth herein, the parties agree as follows:

  1. Definitions
  2. “Products” shall mean the Company’s products, listed on the most current AppendixA to this Agreement (which will be amended from time to time), to be distributed by Reseller hereunder. Additions to, or deletions from, such list may occur upon reasonable notice by Company.
  1. “Competing Products” shall mean any products, or components thereof, which are similar to the Products (as defined above), which compete with the Products and which are manufactured or distributed by Reseller, an Affiliate thereof, or by a third party.
  1. “Confidential Information” shall mean: (i) the Products and all related information, including price lists and pricing information, Company's books of account, sales and financial information, customer lists, product specifications and blue prints, marketing information and plans, trademarks, trade names, copyrights, patents, patent applications and other proprietary interests, production methods, systems and procedures of Company, and all embodiments of the foregoing, and (ii) any other information which Company treats as proprietary, confidential or as a trade secret, provided however that Reseller will have no obligation or restriction with respect to any Confidential Information if the same is: (a) in the public domain at the time of disclosure or is subsequently made available to the general public without restriction by the disclosing party; (b) published or otherwise becomes generally known through no wrongful act of the Reseller; (c) known to the Reseller at the time of disclosure without restrictions on its use or independently developed by the Reseller, and there is adequate documentation to demonstrate either condition; (d) used or disclosed with the prior written approval of Company; (e) disclosed without restriction to the Reseller from a source other than the company; (f) required by court order or governmental agency to be disclosed.
  2. “Affiliate” shall mean an associated person, company or entity, including a corporation, partnership or association, which, directly or indirectly, owns or controls, is controlled by, or is under control with, the person, company or entity to which the reference of affiliation is made.
  3. “Control”, as used herein, means the ownership of fifty percent (50%) or more of the voting shares, equity, or right to receive profits, of any entity or business, whether such control is exercised directly or indirectly.
  4. “Territory” shall mean the areas listed at the most current Appendix B to this Agreement (which will be amended from time to time).
  1. Marketing of Product
  2. Company Provided Leads. When Company forwards sales leads to Reseller, Reseller must confirm receipt of those leads and provide evidence of follow-up within 5 business days of Company providing those leads. In the event that Reseller does not follow-up with leads within this reasonable period of time, Company reserves the right to provide quotations or pricing proposals directly to customers and sell to such customers directly. Company also reserves the right to sell to all customers and leads which it has already been in contact with prior to the date of this Agreement. Company also reserves the right to follow up with and sell directly to all leads or customers which, for any reason, become dissatisfied with or refuse to work with the Reseller and contact Company directly.
  3. Quality Surveys. Companymay periodically conduct satisfaction surveys of end-users for the purpose of ensuring maximum quality in the Product, the sales process and the post-sale experience.
  4. Reseller Generated Leads. Reseller shall transmit to the Company all inquiries received from outside or within the Territory and periodic updates on the status of the pursuit of such leads received within Reseller Territory that Reseller is pursuing.
  5. Marketing Update Report. Reseller must provide a monthly update which includes leads provided by and toCompany, actions taken on such leads indicating the individual who followed up and the date it was done. Reseller must provide quarterly update that includes an estimated value of total live, outstanding quotes and prior quarter’s new quotes.
  6. Company Provided Marketing Materials. From time to time at Reseller’s request, Company will consider making available to Reseller, such standard printed materials, artwork, production materials or mechanicals which Company produces, for the purposes of enhancing Reseller’s advertising efforts. Upon termination of this Agreement all such material shall be returned to Company.
  7. Marketing Efforts & Participation. Reseller will aggressively promote the Products and agrees to minimum promotion commitments detailed in Appendix C. Company may support Reseller by providing assistance in staffing Reseller’s exhibits at U.S. tradeshows whenever availability of a Company representative allows. Upon request by Company, Reseller will assist Company in booth staffing when national or regional tradeshows at which Company exhibits takes place within Reseller’s Territory.
  8. Product Training. Each year, Reseller agrees to have all Reseller’s sales representatives who will be representing Company’s products attend at least one sales and service training organized quarterly by Company. At Company’s discretion, such trainings may occur at Reseller’s facilities or may be web based conferences.
  9. Reseller’s ORganization. Reseller will provide, a profile describing their overall business and staff. This profile will be completed and attached as Appendix D.
  10. Demonstration Product. Reseller must purchase one demonstration product at Reseller price and keep demonstration product current and in good condition to ensure the most current version is being shown. Reseller must have at least one full set of demonstration Product per 2 salespeople.
  1. Sale of Product
  2. Sales By Reseller. The parties acknowledge that Reseller’s primary responsibility is to make an adequate amount of sales within the Territory and that Reseller’s failure to make such sales may serve as grounds for termination or modification of the Agreement at Company’s discretion. The adequacy of Reseller’s sales in the Territory shall be determined by the Company in reference to the potential of the Territory and the fulfillment of quotas, if any, which the Company may, from time to time, establish in consultations with Reseller.
  3. Use of Product. Reseller understands and agrees that it will not recommend or sell the Products for uses or applications which are unsuitable or distribute the Products in such a manner or to such end-users as would adversely affect the high quality reputation of the Products. Reseller shall not make any changes to, or in any way alter or tamper with, the Products, or components thereof, sold to Reseller hereunder without the consent and assistance of Company.
  4. End-user information. When Reseller sells product, Reseller shall provide Company with the customer’s contact information as well as the serial number of the unit(s) they purchased and the invoice date for such units prior to shipment. Company will use this information for warranty purposes, product upgrade/update notifications and product promotion purposes.
  5. Sale of Competing Products. During the term of this Agreement, Reseller, and any Affiliate thereof, shall not manufacture or distribute, sell, lease or transfer any Competing Products.
  6. Sales Goals. The parties will meet, or otherwise communicate periodically, to refine sales goals, identify the degree of market penetration, improve methods of advertising or other aspects of distributing the Products in the Territory, all with the intent that the sales of the Products in the Territory shall increase over the term of this Agreement. In the event that purchases of Products do not reach the assigned goals for each year, Company may terminate or revise this Agreement without further obligation on the part of the Company to Reseller.
  7. Distribution Method. Reseller is expected to develop an adequate distribution network within the Territory to achieve sales goals. This distribution may be entirely direct sales or also enlist the use of sub-resellers managed by the Reseller, subject to the terms of Section III.B.
  8. Product Approvals. Reseller shall advise Company of the need for any approvals of the Products in Reseller’s Territory. Company, with assistance from Reseller, shall obtain any required approvals, licenses, or renewals or amendments thereof, from appropriate governmental authorities within the Territory, at Company’s expense. Such approvals and licenses (hereafter, the “Approvals” or, in the singular, “Approval”) shall be in Company’s name. Upon termination of this Agreement, all such approvals shall belong to Company. In the event Reseller fails to advise Company of the need to have an Approval for a Product, or the need to secure any renewal or amendment thereof, Reseller shall be solely liable for any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, judgments, suits, and proceedings whatsoever (including, without limitation, attorneys’ and experts’ fees and disbursements) which may at any time be imposed upon, incurred by or asserted or awarded against Company and arising as a result of such failure. Company may provide Reseller with information sufficient to permit Reseller to secure Approvals for Company, at Company’s expense. To the extent any other Products of the Company are added to the list of Products at Appendix A, Company may provide Reseller with information sufficient to permit Reseller to secure Approvals for such new Products. The information provided, or to be provided, by Company shall be used exclusively for the purposes of assisting Company to secure such Approvals. No other use of such information is permitted, whether by Reseller or any third party, and Reseller shall indemnify Company against and hold it harmless from any damages which may arise from improper disclosure or use of such information
  1. Sales by Sub-resellers. Reseller may use sub-resellers only within their Territory and market and only when such sub-reseller intends to sell the product within the Territory and market. If Reseller uses any sub-resellers, Reseller is responsible for ensuring that sub-reseller complies with all the terms and conditions herein and is responsible for providing demonstration Product or ensuring the sub-reseller has demonstration Product of their own. If such sub-reseller is found to be in violation of any part of this Agreement, Company will act as if Reseller were in violation and the Reseller will be subject to any corrective actions, which may, at Company’s discretion, include termination. Reseller will be held accountable for the actions of any of its sub-resellers whether or not the Reseller was aware of the sub-resellers actions or violations.
  1. Purchase Price, Purchase Terms.
  2. Price Changes. Sales by Company to Reseller shall be at the Company’s current list prices price stated in US Dollars, less Resellers discount indicated in Appendix A. Company will re-issue prices on a semi-annual basis. Company will honor previous prices for 90 days from the release date of new prices when Reseller provides evidence that their quote which resulted in the order was dated prior to the release date of the new price.
  3. Standard Credit Terms. Unless Reseller is in default or unless otherwise agree by parties in writing, deliveries of all shipments are payable within 30 days of invoice (shipment) date.
  4. Delinquent Balances. Company will charge interest of 1.5% per month or 18% per annum on all overdue balances for orders Company has fulfilled on time. At Company’s sole discretion, Company may exercise alternative means to liquidate or collect any or all overdue balances and Reseller agrees to pay all costs associated with this liquidation and collection, including up to 1.5% liquidation surcharge and any and all legal or court costs that Company may incur. Companymay disable some or all functionality of any product or service for which a corresponding invoice becomes delinquent until such time as the delinquency is corrected.
  1. Purchase Orders, Order Acknowledgements & Delivery. Company shall sell the Products to the Reseller FOB Company’s manufacturing facility in Stafford, TX, ready for final distribution by Reseller or drop shipped by Company per Reseller’s instructions, provided Company has accepted the order, including such instructions. Sales of the Products shall be made in response to Reseller’s purchase order, subject to acceptance, provided that notice of non-acceptance will be provided in writing to Reseller within 72 hours of Company’s receipt of purchase order, with such orders to be filled as promptly as possible with Company’s other orders, determined on a first-come, first-service basis. Company reserves the right to ship to Reseller less than full order quantities of the Products as its inventory or production capacity requires. Company will ship the remainder of such order to Reseller as soon as possible.
  1. Warranty. Company hereby warrants to Reseller that the Products sold to Reseller hereunder (not including any part supplied by Reseller), are merchantable in quality and fit for the specific purpose for which they were intended, in new and unused condition unless specifically identified by Company as being in “used” condition and Reseller accepts such, and free from defects in their manufacture for a period of one (1) year from the time they are sold by Reseller to Reseller’s customer or 24 months from the time they were received by the Reseller from the Company, whichever is shorter (the “Warranty Period”). In order for warranty to be in effect, within thirty (30) days of the sale, Reseller must inform Company of the applicable dates of sales to customers and the contact information and corresponding serial numbers sold to customers. Any modifications, alterations, misuse of the Products, use unintended by Company, damage incurred in loading or unloading a vessel, or in transporting the Products after delivery to Reseller, FOB Company’s plant, shall void this warranty.
  2. Only Warranty. THIS IS THE ONLY WARRANTY WHICH COMPANY PROVIDES, THERE BEING NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, and Company’s responsibility with respect to the Products shall be limited to the foregoing.
  3. Making Claims. In the event that a Product, or component thereof, proves defective in material or workmanship during the Warranty Period, claims regarding the products shall be made in writing to Company stating that such claims occurred within the Warranty Period. On verification that the claim is appropriate, Company shall replace or repair the Products, or component thereof, found to be defective, freight prepaid to the warehouse of Reseller in the Territory.
  4. Exclusive Remedy. The remedy provided hereunder shall be the exclusive remedy available to Reseller and Reseller’s customer in the event of a defect. Furthermore, the Company shall in no case be liable for any damage to any property (other than the defect in the Products, or component thereof sold by the Company), or for indirect, special, incidental or consequential loss or damage caused to Reseller, or any customer thereof, as a result of any act or omission of Company, whether foreseen or unforeseen. No obligation exists to replace any Product, or component thereof, should there be evidence that such Product or component was subjected to any alterations, misuse, use unintended by Company, improper handling, storage, assembly by Reseller, or improper or abnormal use, handling or storage by Reseller, Reseller’s employee, agent, independent contractor, subreseller or customer.
  5. Liability Limited to Warranty. In the event of any valid warranty claim against Reseller under Company’s warranty, Company shall not be responsible to Reseller and will not bear liability for damages (however caused), to persons or property or for loss of anticipated profits or for any direct, indirect or consequential damages suffered by Reseller or its customer, or any employee or property thereof, whether foreseen or unforeseen.
  1. Representation of Products and Intellectual Property
  2. Approval over Marketing Materials. Reseller agrees that it will not place any advertising, regardless of the media chosen, without first having submitted the text or visual representation thereof, to Company for its written approval. Company will assure timely review and provide comments to the Reseller for integration in the text or presentation of the advertising. In the event that Company reasonably objects to the content, or form of presentation, of any material submitted to it by Reseller, Reseller shall not use such material in any advertising used to promote the Products. Company will make current marketing artwork available upon request.
  3. Credit for Trademark. When a Company’s trademark is used in Resellers marketing materials, credit will be given to Company in the following format: “[Referenced trademark name/s] is/are owned by Houston Radar LLC.
  1. Product Changes. Company reserves the right at any time, on such notice as is reasonable for Company under the circumstances, to alter the specifications, method of manufacture, or availability, of any Product. Company also reserves the right at any time, to withdraw, temporarily or permanently, any Product from sale within the Territory. Company will consult with Reseller prior to its decision to withdraw any Product, providing the reason or reasons in support thereof, but the ultimate decision for such action shall rest solely with Company.
  2. Withdrawal of Product.