This Dealer/Reseller Agreement is by and between Garage Smart Inc., a Utah corporation with a place of business at 3000 Sierra Vista Way, Provo, UT 84606 (“Garage Smart”) and the “Dealer/Reseller."
An index of capitalized terms used in this Agreement is set out in Section 9.
WHEREAS, Garage Smart markets and sells the products described in Schedule A (the “Products”); and
WHEREAS, Dealer/Reseller desires to purchase Products from Garage Smart for resale to the customers described in Schedule B (the “Authorized Customers”).
In consideration of the foregoing and the mutual promises set out in this Agreement, the parties agree as follows:
Nonexclusive Dealer/Reseller. Garage Smart hereby appoints Dealer/Reseller as its nonexclusive dealer or reseller of the Products to Authorized Customers, and Dealer/Reseller hereby accepts the appointment. Garage Smart reserves the right to sell the Products to any customers in any territory and/or to appoint additional dealers and/or resellers. Dealer/Reseller shall not sell Products to customers other than Authorized Customers. If the definition of Authorized Customers includes a designation of territory, Dealer-Reseller shall not sell Products to customers outside the territory.Term of Appointment. The term of this Agreement and Dealer/Reseller’s appointment hereunder shall commence on the date hereof and shall continue for a period of one (1) year unless it is terminated earlier by one of the parties as provided herein.
Changes in Products or Authorized Customers. Garage Smart shall have the right at any time and from time to time, in its sole discretion, (i) to change the Products included within the scope of this Agreement by providing to Dealer/Reseller a revised Schedule A at least thirty (30) days prior to the date such change becomes effective, (ii) to change the design, capabilities, or other characteristics of any Product or discontinue the manufacture or marketing of any Product without prior notice of any kind; and (iii) to change the Authorized Customers by providing to Representative a revised Schedule B at least thirty (30) days prior to the date such change becomes effective.
2. DEALER/RESELLER’S DUTIES
Sale of Products. Dealer/Reseller shall use its best efforts to vigorously promote and sell the Products within the Territory.
Technical and Sales Capabilities. Dealer/Reseller acknowledges that the proper marketing and support of the Products requires substantial expertise and commitment. Dealer/Reseller shall at all times during the term of this Agreement, at its expense, maintain the ability (i) to provide competent and adequate technical assistance, service, and support, (ii) to explain in detail to its customers the features and capabilities of the Products, (iii) to assist customers in determining which Products will best meet their particular needs and desires, and (iv) otherwise to carry out its obligations under this Agreement.
Marketing Plan. Dealer/Reseller shall be responsible for developing and implementing its own marketing plan and system for distributing the Products.
Marketing Practices. Dealer/Reseller shall conduct its business in a manner that reflects favorably on the Products and upon Garage Smart’s good name, goodwill, and reputation. Dealer/Reseller shall demonstrate and otherwise represent the Products fairly in comparison with competitive products and shall not make any false or misleading representations regarding the Products or any representations regarding the Products that are inconsistent with Garage Smart’s product literature or Garage Smart’s warranties. Dealer/Reseller shall not engage in any illegal, deceptive, misleading, or unethical practices that may be detrimental to Garage Smart.
Product Literature. Dealer/Reseller shall have the right to use and distribute to customers such product literature and advertising material as Garage Smart may provide from time to time in accordance with this Agreement. In the event Dealer/Reseller desires to use, in connection with sales of the Products, any other literature, technical data, price lists, promotional materials, or similar materials (including, for example, any materials written in any language other than English), Dealer/Reseller shall prepare, such materials at its expense. All such materials shall be submitted to Garage Smart for approval, and Dealer/Reseller shall not use, in connection with the sale of any Product, any materials that have not been prepared or approved by Garage Smart.
Customer Assistance. Dealer/Reseller shall, at its expense, provide assistance to its customers in connection with the use and maintenance of the Products, including installation assistance, training in the operation of the Products, repair services, and other similar assistance.
Minimum Advertised Prices. Garage Smart and its authorized dealers and resellers may sell Products through various retail channels. Dealer/Reseller acknowledges that consistency in advertised prices for Garage Smart’s products is very important to the strength of Garage Smart’s brand and the viability of its distribution channels. Accordingly, Dealer/Reseller agrees to comply with Garage Smart’s Minimum Advertised Price (MAP) and Minimum Internet Price (MIP) policies, as the same may be modified from time to time.
Alteration of Products and Packaging. Dealer/Reseller shall not modify or alter any Product without Garage Smart’s prior written consent. Dealer/Reseller shall not remove, destroy, alter, or conceal any symbol, label, or other marking appearing on any Product or its container. Except with Garage Smart’s prior written consent, Dealer/Reseller shall sell all Products in their originally supplied containers.
Reports; Forecasts. As frequently as Garage Smart reasonably requests, Dealer/Reseller shall provide to Garage Smart written reports showing (i) Dealer/Reseller’s current inventory levels of the Products, in the aggregate and by product, (ii) forecasts of Dealer/Reseller’s anticipated orders by product, and (iii) any other information regarding the Products and/or distribution of the Products that Garage Smart reasonably requests. All expenses associated with such written reports shall be borne by Dealer/Reseller.
Notification. Dealer/Reseller shall report promptly to Garage Smart concerning any market information that comes to Dealer/Reseller’s attention regarding Garage Smart or the Products, including without limitation, information regarding Garage Smart’s market position and the competitiveness of the Products in the marketplace. Dealer/Reseller shall report promptly to Garage Smart all claimed or suspected defects in the Products and shall notify Garage Smart in writing of any claim or proceeding involving the Products within ten days after Dealer/Reseller learns of such claim or proceeding.
Compliance with Laws. Dealer/Reseller shall conduct its business in compliance with all applicable laws and regulations in any way related to the Products or to the performance of Dealer/Reseller’s duties under this Agreement. Without limiting the generality of the foregoing:
- Dealer/Reseller shall not distribute or sell any Product in violation of any United States law relating to the export or reexport of goods or technical information, including without limitation, the Export Administration Act of 1979 as amended from time to time and any regulations promulgated thereunder.
- Dealer/Reseller shall not engage in any act that violates the U.S. Foreign Corrupt Practices Act as amended from time to time or any regulations promulgated thereunder, nor shall it engage in any act that would cause Garage Smart to be in violation of such Act or such regulations.
Additional Dealer/Reseller Requirements. Dealer/Reseller shall comply with the requirement set out in Schedule C, if any. The parties may modify Schedule C from time to time by mutual agreement.
3. SUPPLIER’S OBLIGATIONS
Product Information. Garage Smart shall make available to Dealer/Reseller such technical information in the English language relating to the Products as it makes available to its other distributors generally.
Additional Assistance. In the event Garage Smart provides assistance to Dealer/Reseller related to servicing or other technical aspects of the Products or related to the preparation of literature, technical materials, or promotional materials, Dealer/Reseller shall promptly reimburse Garage Smart for any out-of-pocket expenses incurred by Garage Smart in connection with rendering such assistance, including without limitation, all travel expenses, lodging, and meals. Garage Smart may also charge reasonable hourly or per diem rates for some or all of the services rendered under this provision, provided that Garage Smart notifies Dealer/Reseller, before the services are rendered, of the rates that will apply to such services. Nothing in this Section shall be construed to obligate Garage Smart to provide assistance of any kind to Dealer/Reseller. In the event Garage Smart agrees to provide assistance, such assistance shall at all times be subject to the.
4. TERMS OF PURCHASE AND SALE
Price and Quantity. Garage Smart shall sell Products to Dealer/Reseller at the prices set out in Schedule A in such quantities as are set out in purchase orders submitted from time to time by Dealer/Reseller and accepted by Garage Smart. A purchase order shall be deemed accepted by Garage Smart unless Garage Smart rejects the purchase order within five (5) business days. Garage Smart may change the prices from time to time in its sole discretion; provided, however, that new prices shall not apply to any purchase orders accepted by Garage Smart before Dealer/Reseller receives notice of the change.
Standard Terms and Conditions. The terms and conditions of this Agreement and of the applicable Garage Smart invoice or confirmation will apply to all sales of Products by Garage Smart to Dealer/Reseller under this Agreement. Terms in Dealer/Reseller’s purchase orders and other printed forms shall not apply to any order, notwithstanding Garage Smart’s acknowledgement or acceptance of such order. In the event of any conflict between the terms of this Agreement and any of Garage Smart’s standard forms, the terms of this Agreement shall govern.
Product Shortages. If Garage Smart’s production is insufficient to satisfy all orders for Products, Garage Smart may allocate available inventory among its customers in any manner that it deems appropriate. In such circumstances, Garage Smart may fill partial orders, and it shall not be obligated to give any preference to Dealer/Reseller or any other customer that is under contract.
Warranty. Garage Smart warrants to Dealer/Reseller and its customers, but not to any other third parties, that the Products will be free from defects in material and workmanship under normal use and service for a period of ninety (90) days after delivery. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Garage Smart’s sole liability and Dealer/Reseller’s exclusive remedy under this warranty is the repair or replacement, at Garage Smart’s option, of Products that Garage Smart determines do not conform to the warranty. Garage Smart may provide additional warranty protection and remedies to end users of Products. Dealer/Reseller shall participate in Garage Smart warranty programs and cooperate reasonably with Garage Smart in providing warranty service to end users of Products.
Limitation of Liability. Garage Smart’s responsibility with respect to the Products and Garage Smart’s obligations related thereto shall in no event exceed the purchase price of the Products. In no event shall Garage Smart be liable for any incidental or consequential damages, including without limitation, damages, losses, or expenses arising from the sale, handling, or use of the Products.
5. TRADEMARKS AND INTELLECTUAL PROPERTY
Ownership of Intellectual Property. Dealer/Reseller acknowledges and agrees that Garage Smart has, and shall retain, all right, title, and interest in and to all intellectual property rights relating to the Products, including but not limitation to patents, trade secrets, and copyrights, and including all rights in and to future Products that may be provided to Dealer/Reseller under this Agreement.
Use of Trademarks. Dealer/Reseller shall use Garage Smart’s trademarks, trade names, service marks, logos, and designations (all referred to in this Agreement as “Trademarks”) to refer to the Products in accordance with Garage Smart’s policies as announced from time to time. Dealer/Reseller shall not use the Trademarks except as specifically provided in this Agreement. Dealer/Reseller shall not (i) dispute or deny the validity of any of Garage Smart’s Trademarks, (ii) claim any right, title, or interest in or to any such Trademarks (including, but not limited to any attempt to register the same in any jurisdiction), or (iii) do anything that could adversely affect Garage Smart’s rights in its Trademarks. Upon expiration or termination of this Agreement, Dealer/Reseller shall immediately cease all use of Garage Smart’s Trademarks and shall not thereafter use any of them or any confusingly similar trade names, trademarks, service marks, logos, or designations.
Protection of Trademarks. Dealer/Reseller shall promptly notify Garage Smart of any known or suspected infringement of Garage Smart’s Trademark rights and shall cooperate without charge, but at Garage Smart’s expense, in Garage Smart’s efforts to protect such rights.
Use of Confidential Information. Garage Smart may furnish Confidential Information to Dealer/Reseller in connection with the sale of Products. As used herein, the term “Confidential Information” means drawings, diagrams, test data, specifications, documents, and other information that is marked “CONFIDENTIAL,” “PROPRIETARY,” or with words of similar import, and all other information relating to Garage Smart, its business, or its products that Dealer/Reseller has reason to know are not available to the general public. The following information shall not be deemed Confidential Information: (i) information generally available to the public, (ii) information that becomes available to the general public through no fault of Dealer/Reseller, and (c) information that was rightfully in the possession of Dealer/Reseller prior to receiving it from Garage Smart. Dealer/Reseller shall hold Garage Smart’s Confidential Information in the strictest confidence, shall use the same solely for its own internal purposes, and shall exercise at least the same degree of care to protect Garage Smart’s Confidential Information as it uses with respect to its own most sensitive information, but in no event less than reasonable care.
Equitable Remedies. Dealer/Reseller acknowledges and agrees that a breach of any of the provisions of this Section 5 would cause Garage Smart to suffer irreparable harm for which monetary damages would be inadequate compensation, and waives any argument to the contrary. Garage Smart shall be entitled to an injunction restraining any actual or threatened breach of the provisions of this Section 5, or specific performance, if applicable.
Infringement Claims. Garage Smart shall have the right and obligation to defend any action brought against Dealer/Reseller based upon an allegation that any Product sold to Dealer/Reseller infringes a United States patent, and Garage Smart shall pay all costs and damages made in settlement or finally awarded as a result of any such action. If a final injunction is obtained in any such action restraining use of the product by Dealer/Reseller or its customers, or if Garage Smart believes that any product is likely to become the subject of a claim of infringement, Garage Smart shall, at its option and at its expense (i) procure for Dealer/Reseller and its customers the right to continue using the Product, (ii) replace or modify the Product so that it becomes non-infringing, or (iii) refund to Dealer/Reseller that portion of the amount paid under this Agreement that reasonably can be allocated to the infringing Product, reduced by twenty five percent (25%) for each year following delivery of the Product to Dealer/Reseller. Notwithstanding the foregoing, Garage Smart shall have no obligation with respect to any claim or action brought against Dealer/Reseller based on an allegation of patent infringement unless Garage Smart is promptly notified by Dealer/Reseller in writing of such claim or action and is allowed complete control of the defense of the action and all negotiations for its settlement or compromise. This paragraph states Garage Smart’s entire liability with respect to infringement of patents and all other intellectual property rights.
Obligations After Termination. Upon the Garage Smart’s request, and in any event upon termination of this Agreement, Dealer/Reseller shall return to Garage Smart (or with Garage Smart’s consent, destroy) all materials in its possession or control that contain or represent Garage Smart’s Confidential Information. Upon Garage Smart’s request, Dealer/Reseller shall certify in writing that it has complied fully with its obligations under this paragraph.
6. TERMINATION AND RENEWAL
Renewal Upon Expiration of Term. This Agreement shall renew automatically at the end of each one-year term unless either of the parties gives written notice to the other, at least thirty (30) days prior to the end of the term, that the Agreement will not be renewed.
Termination at Dealer/Reseller’s Option. Dealer/Reseller shall have the right to terminate this Agreement, with or without cause, upon sixty (60) days prior written notice to Dealer/Reseller.
Termination at Garage Smart’s Option Without Cause. Garage Smart shall have the right to terminate this Agreement, with or without cause, upon ninety (90) days prior written notice to Dealer/Reseller.
Termination at Garage Smart’s Option For Cause. Garage Smart may terminate this Agreement, effective five (5) business days after Garage Smart’s written notice to Dealer/Reseller (or on such later effective date as Garage Smart may specify), upon the occurrence of any of the following:
- Dealer/Reseller fails to make any payment due to Garage Smart under this Agreement; or
- Dealer/Reseller breaches any of its obligations relating to Garage Smart’s Trademarks, Confidential Information, patents, copyrights, or other intellectual property rights; or
- Dealer/Reseller fails to achieve reasonable sales goals established by mutual agreement of the parties; or
- Dealer/Reseller or any of its officers, directors, shareholders, managers, members, or partners is convicted of a criminal offense or engages in any other act that in Garage Smart’s reasonable opinion could have an adverse effect upon Garage Smart’s reputation and goodwill; or
- Dealer/Reseller is merged or consolidated with any other entity or there is a substantial change in the management or control of Dealer/Reseller; or
- Dealer/Reseller ceases to function as a going concern or ceases to conduct its operations in the normal course of business or makes an assignment for the benefit of its creditors, or a receiver is appointed for Dealer/Reseller or its property, or any proceedings are commenced by or against Dealer/Reseller under any bankruptcy, insolvency, or debtor's relief law; or
- Dealer/Reseller has misrepresented facts relating to this Agreement or its performance hereunder; or
- Dealer/Reseller fails to perform or observe any of its obligations under this Agreement and the failure continues unremedied for a period of fifteen (15) days after Garage Smart sends written notice thereof.
Suspension of Garage Smart’s Obligations. Immediately upon the occurrence of any breach by Dealer/Reseller of any of its obligations under this Agreement or upon the occurrence of any event or circumstance that would permit Garage Smart to terminate this Agreement, all of Garage Smart’s obligations to ship Products shall be suspended and such obligations shall remain suspended until the event or circumstance giving rise to the suspension has been corrected to Garage Smart’s reasonable satisfaction
7. POST-TERMINATION OBLIGATIONS
Shipments Following Notice of Termination. The expiration or termination of this Agreement shall not relieve Garage Smart of its continuing obligation to ship Products pursuant to any purchase orders accepted by Garage Smart prior to the notice of termination, nor shall it relieve Dealer/Reseller of its continuing obligation to accept and pay for such Products; provided, however, that with respect to all Products shipped after any notice of termination, Dealer/Reseller shall make payment prior to shipment by certified or cashier’s check notwithstanding any credit terms that may have been available to Dealer/Reseller prior to such notice of termination.
Acceleration of Amounts Due. All outstanding invoices for the Products and all other amounts owed to Garage Smart by Dealer/Reseller shall be accelerated and shall fall due and payable immediately upon the date of expiration or termination, even if longer terms had been provided previously.
Liability Upon Termination. Garage Smart shall have no liability to Dealer/Reseller by reason of the expiration or termination of this Agreement for compensation, reimbursement, or damages of any kind, including without limitation any loss of prospective profits on anticipated sales, loss of goodwill, or investments made in reliance on this Agreement. Dealer/Reseller acknowledges that it has received no assurances from Garage Smart that its business relationship with Garage Smart will continue beyond the term established in this Agreement, that it will obtain any anticipated amount of profits in connection with this Agreement, or that it will recoup its investment in the promotion of the Products. However, these provisions apply only to damages that are attributable to the expiration or termination of this Agreement and shall not affect any amount due under this Agreement or the right of either party to seek damages directly attributable to any breach.
8. GENERAL PROVISIONS
Notice. Without precluding any other sufficient form of notice, all notices, demands, or other communications under this Agreement shall be deemed sufficient if served personally or sent by email, overnight courier, or first class mail to the respective addresses of the parties as set out in this Agreement and directed to the attention of the individuals signing this Agreement on behalf of the parties or to another address or individual specified by the party. All notices, demands, and other communications shall be deemed given on the earlier to occur of (i) actual receipt, or (ii) in the case of notice by overnight courier, the day after notice is sent, or (iii) in the case of notice by U.S. mail, five (5) days after the notice is deposited in the U.S. mail.
Indemnification. Garage Smart assumes and accepts full responsibility for claims of third parties, for all injuries and damages attributable to Garage Smart products, including without limitation personal injuries and property damage. Garage Smart shall defend, indemnify, and hold harmless Dealer/Reseller against any such claims and against any losses, liabilities, injuries, damages, and expenses that may be incurred or suffered by Dealer/Reseller or its employees or agents which are attributable to the products; provided, that Dealer/Reseller shall give Garage Smart prompt written notice of any such claims and shall afford Garage Smart full control of the defense, settlement, or compromise thereof. Dealer/Reseller shall indemnify Garage Smart against any claims of third parties arising out of the negligence or willful misconduct of Dealer/Reseller or its owners and employees or any breach of this Agreement by Dealer/Reseller.
Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter.
Amendment and Modification. No modification or amendment of this Agreement shall be binding unless executed in writing by both parties. No waiver shall be effective unless it is in writing and signed by the party against whom enforcement is sought.
Assignment. This Agreement may not be assigned by either party without the prior written consent of the other.
Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseeable circumstances or to causes beyond that party's control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, accidents, labor disputes, or shortages.
Choice of Law. This Agreement shall be governed by and construed in accordance with Utah law, without regard to its rules regarding conflicts of law. Each of the parties consents to the jurisdiction of the courts located in the state of Utah with respect to all matters relating to this Agreement and agrees that all litigation relating to this Agreement shall take place in courts located in the state of Utah.
Successors and Assigns. This Agreement shall inure to the benefit of, and shall be binding upon, the respective heirs, legal representatives, successors, and permitted assigns of each of the parties.
Severability. If any of the provisions of this Agreement are held by a court or other tribunal having jurisdiction to be unenforceable, the parties intend that the provision shall be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
As used in this Agreement, the following terms have the following meanings:
“Authorized Customer” has the meaning given in the preamble.
“Confidential Information” has the meaning given in Section 5.
“Products” has the meaning given in the preamble.
“Trademarks” has the meaning given in Section 5.
Individual retail consumers anywhere in the world
SCHEDULE C – OTHER TERMS
- The Products shall be marketed only for normal consumer garage applications, and Dealer/Reseller shall not knowingly sell Products to any customer for any other applications.
- Dealer/Reseller is not authorized sell Products through Internet channels, except as follows: Dealer/Reseller has established _______________________ as an Internet website directly associated with Dealer/Reseller’s brick and mortar retail location(s). Dealer/Reseller may offer Products through the website, provided that the website continues to offer a full range of products associated with the brick and mortar location(s). Dealer/Reseller shall not sell Products on any auction site or Internet-only site.
- This Agreement does not preclude Dealer/Reseller from marketing or selling products that are competitive with the Products.
- Garage Smart shall provide Dealer/Reseller a reasonable quantity of demonstration or evaluation Products at wholesale cost.
- Dealer/Reseller shall maintain a sufficient inventory of Products, replacement parts, and accessories to reasonably fulfill the requirements of its customers. Replacement parts and accessories shall meet such specifications as Garage Smart may establish from time to time.