LED Display Learning

2014-05-25 16:09:03




THIS EXCLUSIVE DISTIBUTION AGREEMENT (“Agreement”) is made this _day of _____, 2014, by and between:
________________________a company having offices at ________ (“supplier”); 
_____________    having offices at ________________________(“distributor”);
Distributor and supplier each individually a “Party” and collectively the “parties”
A. Supplier manufactures a foldable flexible LED module display, sometimes referred to as an “flexible LED display video wall”, as described more fully below with respect to specific model numbers ( the “products”);
B. Distributor desired to be the exclusive distributor for the product in the territory:__________
Now, therefore, in consideration of the promises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agrees as follows:
1. Definitions. For purpose of this agreement:
(a) “Affiliate” means any person or entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Party.
(b) “Territory” means the ___________, including its territories and possessions.
2. Purchase and Sale of Product:
(a) Exclusive Purchase. Except as otherwise set forth herein, Distributor agrees that throughout the Term ( as hereinafter defined), distributor and its Affiliates shall purchase the product for sale in the territory exclusively from the supplier, and that it shall not sell, distribute, or promote the sale of any products competitive with or similar to the products in the territory. Supplier agrees that it shall not directly or indirectly sell or export product to the territory through channels other than distributor.
(b) In connection with distributor’s rights under this agreement, and to the extent of Supplier’s intellectual property rights identified in Exhibit A hereof, Supplier hereby grant to distributor a royalty-free license to Distributor to sell Products within the Territory,  including the right to make any modification to the products deemed necessary by the distributor to meet the technical requirements of its customers or the needs of the market for the products within the territory.
(c) Requirement: except as supplier may be excused pursuant to the provisions of this Agreement, Supplier agrees to sell to Distributor all the requirements of distributor and its affiliates for the product within the territory, provided, however, that at any given time, supplier shall not be required to sell to distributor and its affiliates more than supplier’s then-existing production capability. Supplier represents and warrants to Distributor that Products delivered by Supplier hereunder for sale by Distributor (i) shall be manufactured, packaged, and labeled in accordance with the Product Specifications, and (ii) are free from defects in the material and workmanship.
(d) Minimum Requirements. During the course of this Agreement, Distributor and/or its Affiliates shall be required to purchase a minimum number of units of the Product ( the Conformance of the Minimum Purchase will be reviewed quarterly. The date the purchase order is placed shall be used to determine conformance of the Minimum Purchase. Notwithstanding the foregoing, during any period as to which distributor shall not have purchased the Minimum Purchase established with respect thereto, Distributor may preserve its exclusivity by paying Supplier an amount set forth on Exhibit B ( the “Waiver Amount”) within 30 days of the review.
3. Orders.
(a) Purchase Orders: Filling of Orders by Supplier. Distributor shall submit purchase orders for the purchase of the Product. Each purchase order shall specify (i) the location and entity to which the ordered Products are to be shipped, and (ii) the ship date. Within five(5) business days from receipt of any purchase order, Supplier shall confirm its willingness and ability to satisfy the purchase order.
4.  Cooperation.
(a) Projected Sales. In addition to the lead-time for deliveries under purchase orders described in the Section 3 (a) hereof, Distributor agrees to cooperate and provide regular information to Supplier concerning its projected sales for Product so that Supplier can adjust its capacity to manufacture and delivery Product in such quantities as may be ordered by Distributor from time to time.
(b) Best Efforts. Supplier covenants and agrees to use its bests efforts to manufacture and supply the Product to Distributor in accordance with the terms of this Agreement. Distributor covenants and agrees to use its best efforts to promote the sale of the Products in the Territory.
5. Price and Payment Terms.
(a) Price. The purchase price(s) for the Products will be established by the Parties in accordance with Exhibit C.
(b) Invoices and Payment Terms. Invoices for all Product shall be rendered by Supplier not earlier than the date of shipment of the Product, and payment shall be due on or before thirty (30) days of the invoice date.
6. Taxes. In addition to the prices for the Product, Distributor shall be responsible for the payment of all sales, use or other similar tax ( however designated, levies or based) on charges or sums due for product sold pursuant to this Agreement, excluding, however, Supplier’s corporate or excise taxes based upon its federal or state or revenues.
7. Product Specifications. Supplier agrees that the Product sold to Distributor will comply materially with the specifications set forth on Exhibit D. Supplier shall not make any changes to the Product Specifications, except upon the written consent of Distributor. If Supplier wishes to make changes to the Product Specifications, the Parties shall first discuss such proposed change and their possible impact on Distributor’s ability to meet its obligations under this Agreement. If the Parties agree that such changes are necessary or desirable, then the Product Specifications of Exhibit D shall be amended to reflect such changes, and it shall affect all order from Distributor from the date of such amendment.
8. Terms and Conditions of Sales of Product.
(a) Governing Terms and Conditions. The Parties agree that the terms and conditions set forth in this Agreement shall pertain to and govern all sales of Product by Supplier to Distributor and its Affiliates. In addition to the terms and conditions specifically set forth in this Agreement, all of the terms set forth on Exhibit E are hereby incorporated by reference.
(b) changes to Terms and Conditions. The Parties acknowledge that throughout the Term of this Agreement from time to time on the Parties may wish to make changes in the terms and conditions of sale, including those set forth on Exhibit E; therefore, they agree to cooperate with each other to discuss changes which may be suggested by either of them but no party shall be bound by any changes unless it agrees to such change. In all events, however, the terms and conditions set fourth in this Agreement ( including those on Exhibit E hereto) shall govern all sales and may not be modified or expanded by any other instrument or document except one signed by authorized representatives of Distributor and Supplier which specifically states that such change is being made. Without limiting the generality of the foregoing, neither party shall be bound in any way by any terms and condition which may appear on any invoice. Purchase order, confirmation, or any other document of the other party except with respect to the quantity of Product, destination for delivery and delivery dates set forth in Distributor’s purchase orders, which are accepted in full or in part by Supplier.
9. Term and Termination.
(a) Term. This Agreement shall remain in force for an initial period of thirty-six (36) months from the date hereof ( the “Term”). This Agreement shall automatically extend for a second term of thirty-six (36) months provided Distributor has met the minimum requirements set forth in this agreement, as identified in Exhibit B. The Term shall be extendable by additional 36 month renewal periods upon agreement by the Parties within three ( 3) months before the expiration of the initial period or any renewal period.
(b) Termination. This Agreement may be terminated sooner than the end of the Term by either Party pursuant to the provisions of Section 12 (b) herein.
10. confidential Information, Intellectual Property.
(a) Each Party, as the disclosing Party ( “Discloser”), has disclosed and may in the future disclose to the other, as recipient (“Recipient”), certain trade secrets, know-how, formulate, specifications, technical information, data, processes, technology, plans, drawings ( including engineering and other drawings), research and development, proprietary information, blueprints, tooling and equipment, business information ( including without limitation customer information, supplier information, financial information and future plans), and documentation related to any of the foregoing, except for any such item that is generally available to the public as of the date hereof, which is either marked confidential or which Recipient should reasonably know is intended to be treated as confidential (“confidential Information”).
(b) Except as otherwise specifically provided in this Agreement, or with the written consent of the other Party, each Party, as Recipient, shall keep confidential, shall not disclose to any third party, either orally or in writing, and shall not use for any purpose not expressly stated herein, any Confidential Information of the other party in its possession. Each Party, as recipient, shall safeguard the Confidential Information of the other with at least the same degree of care that it uses with respect to its own confidential information of a similar kind, and in no event, with less than a reasonable degree of care.
(c) The obligation of confidentiality set forth herein does not extend to information (i) that is or becomes knows to the trade or the public through no fault of the Recipient, after becoming so known; (ii) that is obtained by the Recipient from a third party having the right to disclose such information, after being so obtained; (iii) that was rightfully possessed by Recipient prior to disclosure to Recipient by Discloser; or (iv) that the Recipient can demonstrate was developed independently by an employee or agent of the Recipient who did not have access to the Confidential Information. The obligation of confidentiality set forth herein shall not terminate upon termination or expiration of this Agreement.
(d) Notwithstanding anything to be contrary in this Agreement, each party, as Recipient, may disclose the confidential information of the other in response to a court order or subpoena; provided, however, that to the extent permitted by law and reasonable practicable. Recipient will promptly notify the discloser of any such court order or subpoena served on Recipient and cooperate, at its own expense, with discloser’s efforts to contest or limit the scope of any such disclosure.
(c) Upon termination of this Agreement, each Party shall return to the other all copies of all confidential information and shall thereafter refrain from using confidential information in any manner whatsoever.
(f) distributor agrees that it shall respect the intellectual property right of supplier, which rights are identified by supplier in Exhibit A. In the event that Distributor becomes aware of any infringement of such rights in the Products, distributor shall promptly notify supplier of such infringement and assist supplier with any information necessary for supplier to enforce its rights against such infringement.
11. Discussions and right to terminate
(a) discussions. It is the intension of the parties hereto to create a good working relationship and it is anticipated that during this relationship from time to time the parties may fail to perform one or more of their obligations hereunder. It is the intention of the parties to meet promptly and discuss disputes concerning failures of performance and to solve such difference through the process of negotiation. In the event that any such negotiations fail, then the parties agree to utilize the arbitration procedures set forth in Section 12 herein to resolve all disputes of any kind. To the extent that section of this agreement leave open any terms that require the later agreement thereto of the Parties, in the event that the Parties are unable to reach agreement on such terms, then the Parties agree to utilize those arbitration procedures, if necessary, to resolve all such terms.
(b) right to terminate. The parties recognize that in addition to the provisions of Section 9(b) herein, there are certain event which should give rise to the right to terminate this Agreement. Therefore, either Party shall have the right to terminate this Agreement without any further liability other than pay all amounts then due and owing and to remain bound by the provisions of this agreement which by their terms survive termination ( including without limitation, Section 10 and 12 hereof), in the event any of the following conditions should occur:
(i) the other party (y) admits to insolvency, makes a general assignment for the benefit of creditors, or (z) suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law. Whether domestic or foreign, in each case, which is not dismissed within ninety (90) days after it is commenced; or
(ii) there is a determination made by an Arbitrator ( as herein defined) that as a result of the continuous defaults in the due and timely performance of any covenants or agreement(s) due by the other party that: (y) the value of this entire Agreement has become materially impaired to the non-defaulting party, or(z) it would be unreasonable to expect the non-defaulting party to rely any longer upon the other party for the performance of its obligations under this Agreement.
12. dispute resolution. Any question or disagreement which may arise concerning the construction or effect of this agreement or concerning the rights or obligations hereunder of the parties hereto or concerning any other matter arising out of or in connection with this Agreement ( and which is not resolved pursuant to the discussions contemplated in Section 11(a) herein) shall be referred by either party to the American Arbitration Association within thirty(30) days after notification to the other party of such question or difference, Such question shall be resolved by (a) a single arbitrator to be agreed upon by Supplier and Distributor within ten (10) days after reference or, (b) in the absence of such agreement, three (3) arbitrators, one (1) of whom shall be selected by each Party within twenty (20) days of such reference by the two (2) arbitrators selected by the Parties hereto ( such single arbitrator or panel of arbitrators, the “arbitrator”). In either case, the arbitration will be conducted in __________, the decision of the Arbitrator shall be final and binding on all Parties hereto, and judgment upon the award rendered by the Arbitrator may be entered in any court having jurisdiction hereof. Each Party shall pay the costs of its counsel and the fees of expert witnesses called by it.
13. Indemnification.
(a) By Supplier. Supplier shall indemnify and hold Distributor and its officers, employees and agents harmless from and again any and all losses, liabilities, damages, costs and expenses (including, without limitation, attorney’s fees and costs) resulting from all claims, demands, actions and other proceedings by any third party to the extent arising from (a) the breach of any agreement, covenant, representation, or warranty of Supplier under this Agreement, (b) the negligence, recklessness or willful misconduct of Supplier or its Affiliates in the performance of its or their obligations and its or their permitted activities under this Agreement; or (c) any claim that any product purchased from Supplier hereunder, or the use of sale thereof, infringes upon any patent or other intellectual property rights of any third party.
(b) By Distributor. Distributor shall indemnify and hold Supplier and its officers, employees and agents harmless from and against any and all losses, liabilities, damages, costs and expenses ( including, without limitation, attorney’s fees and costs) resulting from all claims, demands, actions and other proceedings by any third party to the extent arising from (a) the breach of any agreement, covenant, representation, or warrant of Distributor under this Agreement, or (b) the negligence, recklessness or willful misconduct of Distributor or its Affiliates in the performance of its or their obligations and its or their permitted activities under this Agreement.
14. Limitation of Liability. Except as provided in Paragraph 10 ( Confidential Information) and Paragraph 13 ( Indemnification ) above, or as otherwise expressly provided elsewhere in this Agreement, neither Party shall be liable to the other for special, indirect, exemplary, punitive or consequential damages, or lost profits, arising out of such Party’s performance hereunder or breach of the provisions hereof.
15. Force Majeure. Except for the obligation to pay suns when due, neither Party shall be liable for delays in performance under this Agreement occasioned by force majeure or any cause beyond its control, including but not limited to war, civil disturbance, fire, flood, earthquake, windstorm, acts of default of common carriers, strikes, unforeseen shutdowns of sources of supply, governmental laws, acts, regulations or orders, or any other occurrence similar in character to the foregoing.
16. Miscellaneous.
   (a) No Agency. Distributor and Supplier are independent contractors. Neither is the agent, partner, employer, joint venture, or legal representative of the other. Distributor agrees not to represent itself as the agent or legal representative of Distributor. This Agreement does not grant either party any authority to assume or create any obligation on behalf of or in the name of the other Party.
(b) Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be writing and shall be deemed to have been duly given (i) when received if personally delivered; (ii) when transmitted if transmitted by telex or telecopy transmission only during the recipient’s normal business hours unless arrangements have otherwise been made to receive such notice by telex or telecopy outside of normal business hours, with confirmation of successful transmission received by the sender; (iii) the date after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., DHL, UPS or Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice shall be sent as indicated below:
If to Distributor:
With a copy to:
If to Supplier to:
With a copy to:
Or to such other place and with such other copies as either Party may designate as to itself by written notice to the others.
(c) No Assignment. Neither party may assign this Agreement or any interest herein or any rights, duties or claims hereunder to any third party without the other Party’s prior written consent ( which consent shall not be unreasonably withheld), and further provided that a transfer of the stock of either Party or the sale of all or any portion of Distributor’s assets or business shall not constitute an assignment herein.
(d) Entire Agreement. The terms and conditions of this Agreement supersede the terms and conditions of any and all prior to this Agreement with respect to the subject matter of this Agreement. The terms and conditions herein constitute the entire agreement between the Parties hereto.
(e) Agreement and Modifications. This Agreement may not be amended, changed, modified, contradicted, explained or supplemented ( including by course of dealing between the Parties, usage of trade or otherwise) except (i) by a written instrument signed by an authorized officer of Supplier and Distributor ( as the case may be ) which refers specifically to this Agreement; or (ii) as otherwise provided in this Agreement.
(f) Severability of Clauses. If any provision of this Agreement is determined to be illegal, against public policy, or otherwise unenforceable it shall not in any way defeat, invalidate or render unenforceable any other provision of this Agreement and each such provision shall at all times be considered separate and severable in this Agreement. In the event any Arbitrator to whom disputes under this Agreement are referred shall determine that any one or more of the provisions or restrictions contained in this Agreement are invalid, illegal or unenforceable by reason of being unreasonably vague or for any other reason, the Parties hereto agree that such provision or restriction shall be amended to expressly contain a clarification thereof or a reasonable scope, as such clarification or reasonable scope (i) shall have been determined by the Arbitrator, and (ii) shall be valid, legal and enforceable under laws applicable at the time of such amendment.
(g) Compliance with Law. Each Party hereto shall comply with all applicable statutes, ordinances, rules, regulations, permits and orders imposed by any governmental authority on any activity of either party hereunder and this Agreement is made subject to the foregoing.
(h) Waiver. No waiver by either of the parties of any breach of any provision hereof shall constitute a waiver of any other breach of any provision hereof.
(i) No Third Party Rights. This Agreement is not intended to create any rights in any third party except rights of Affiliates of the Distributor to purchase from the Supplier as provided herein.
(j) Governing Law. All rights or obligations of the Parties with respect to this Agreement shall be governed by the laws of ______________, without regards to principles of conflicts of laws.
(k) Multiple Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered via facsimile or other electronic transmission shall be binding to the same extent as an original signature page. Any Party who delivers a signature page via facsimile or other electronic transmission agrees to later deliver and original counterpart to any Party which requests it.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first above written.
Product; intellectual property
Foldable Flexible LED Module Display :
foldable flexible LED module display with a resolution of 6mm or smaller with IP43/54/65
foldable flexible LED module display with a resolution of 8mm or smaller with IP43/54/65
foldable flexible LED module display with a resolution of 10mm or smaller with IP43/54/65
foldable flexible LED module display with a resolution of 12mm or smaller with IP43/54/65
foldable flexible LED module display with a resolution of 16mm or smaller with IP43/54/65
foldable flexible LED module display with a resolution of 20mm or smaller with IP43/54/65
Intellectual Property Rights of Supplier:
[ Identify patents, trademarks, and copyrights]
Exhibit B
Initial Minimum and Subsequent Minimums
Quarterly Minimum Purchase required during the course of the Agreement:
$120,000  /quarter (3 months) of ordered units
The Minimum Purchase Requirements will be in effect and reviewed each quarter of the calendar year ( namely, January-March; April-June; July-September; and October-December).
Minimum Purchase Waiver Amount: 20% of the difference between the required Minimum Purchase and the actual amount ordered during the 3 month period in review.
Example: During the third quarter of 2012 only $70,000 of the required $120,000 of Product was Purchased. Distributor shall pay a Waiver Amount of 20% of the difference ($120,000 - $70,000=$50,000 difference or $10,ooo Wavier Amount) within 30 days if the review to remain in compliance and preserve the Agreement.
* All amounts in U.S. Dollars; all Payments to be made by wire transfer.
Initial prices to be paid by Distributor to Supplier for the Products shall be set forth on an attachment hereto initialed by the parties ( Exhibit C-1).
The Parties may alter this formula ( and its reference data and points) only by mutual written consent.
EXHIBIT C-1 –Initial Prices
Model No.               Price per unit ($)*
P6                $  per square meter with SMD 3528 LED IP43
P8                $  per square meter with SMD 3528 LED IP43
P8                $  per square meter with SMD 3528 LED IP43
P10                $  per square meter with SMD 3528 LED IP43
[ to be completed ]
See attached.
Email: flexible.led.display.screen@gmail.com 

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