AED TEAM DISTRIBUTOR AGREEMENT
DISTRIBUTOR AGREEMENTBETWEEN ANDSHOK ENTERPRISES, LLCDOING BUSINESS AS AED TEAM
This Distributor Agreement (“Agreement”), effective as of last date of signature (the “Effective Date”), is made by and between of ("Distributor") and Shok Enterprises, LLC DBA AED TEAM (“AED TEAM”) of 2115 Colonial Avenue SW, Roanoke, VA 24015. Each of AED TEAM and Distributor are a “Party” and together they are the “Parties”.AED TEAM and Distributor acknowledge that this Agreement entitles Distributor to be appointed as an authorized, non-exclusive Distributor of the AED TEAM licensed products, accessories and related goods (“Products”) described in the attached Product Exhibits.
1. Definitions1.1 “Change of Control” means with respect to Distributor (a) the sale of all or substantially all of the assets of the Distributor, or (b) a merger, consolidation or other reorganization of the Distributor which results in more than 50% of the ownership interests (by vote or value) of the resulting or surviving entity being owned or held by persons other than those owning or holding the ownership interests in Distributor on the date of this Agreement, or (c) the sale by one or more owners of the Distributor, in a single transaction or series of related transactions, of more than 50% of the ownership interests (by vote or value) of the Distributor to one or more third parties who are at the time of such sale unaffiliated with any owners of the Distributor.1.2 “End User” means a person or entity purchasing a product from Distributor where that purchaser will take possession and be the direct User of the Product.1.3 “Wholesaler” means the only authorized entity from which Distributor may purchase AED TEAM products for resale.1.4 “Personnel” means Distributor's employees1.5 “Product” means any item listed on the attached Product Exhibit.1.6 “Reports” means the quarterly report provided by Distributor to AED TEAM with the details of the End User transactions.2. Appointment2.1 AED TEAM hereby appoints Distributor as an authorized, non-exclusive distributor for the promotion, sale and support of the Products in the Territory as defined in the attached Exhibits. Distributor accepts this status upon the terms and conditions contained herein. Distributor may not subcontract any of its rights or responsibilities under this Agreement.3. Relationship3.1 The relationship of Distributor to AED TEAM shall be that of an independent contractor engaged in purchasing Products from AED TEAM for resale to Distributor's customers within the Territory. As an independent contractor, Distributor and its employees, contractors and agents are not agents or legal representatives of AED TEAM for any purpose and shall have no power or authority to represent, act for, bind or commit AED TEAM. AED TEAM and the Distributor are mutually exclusive entities not in operation for a common purpose.3.2 Distributor is solely responsible for any commitments it makes with respect to the Products, quantities, delivery times, or suitability of Products to a particular hardware interface, in specific applications or otherwise.3.3 Distributor has no power or authority to warranty the Products except as expressly provided by AED TEAM or (ii) make any commitments on AED TEAM behalf.3.4 This Agreement shall not be construed in any manner to have established an agency, joint venture, or partnership.4. Insurance4.1 AED TEAM will maintain commercial general liability insurance with a minimum limit of $1,000,000 combined single limit per occurrence and $2,000,000 in the aggregate, for claims of bodily injury, including death, and property damage. Said policy obtained by AED TEAM will name Distributor, its officers, directors and employees as an additional insured. Such insurance policies will be written with appropriately licensed and financially responsible insurers. Upon Distributors’ request, certificates of insurance evidencing the required coverage and limits will be furnished to the Distributor contact designated by Distributor.4.2 Distributor will maintain adequate insurance to protect against the liabilities that it may be subject to under this Agreement including but not limited to commercial general liability insurance with a minimum limit of $1,000,000 combined single limit per occurrence and $2,000,000 in the aggregate. Such insurance policies will be written with appropriately licensed and financially responsible insurers, Supplier will provide for a minimum of thirty (30) days written notice to AED TEAM of any cancellation or reduction in coverage. Upon AED TEAM’s request, certificates of insurance evidencing the required coverage and limits will be furnished to the AED TEAM contact designated by AED TEAM.4.3 All costs of maintaining such policies including deductibles on polices providing coverage will be paid by the respective party initiating the insurance coverage. In no event will the coverage or limits of any insurance required under this Section or the lack or unavailability of any other insurance, be deemed to limit or diminish Distributor’s obligations or liability to AED TEAM under this Agreement.5. Term5.1 The term of this Agreement is from the effective date to December 31, 2024.5.2 During the term of this Agreement, AED TEAM may unilaterally change any provision of this Agreement upon thirty (30) days prior written notice to Distributor.6. Distributor Obligations6.1 Distributor shall6.1.1 Complete all steps of the sales process including, but not limited to:6.1.2 Prospecting, qualifying, selling the features and benefits of AED TEAM Products;6.1.3 Producing quotations and proposals;6.1.4 Provide customer presentations;6.1.5 Conduct Product demonstrations;6.1.6 Close the sale, order Products from Wholesaler for delivery to the End User;6.1.7 Distributor must provide the End User with instructions to register all CE-TEK 4000 LOCKED enclosures with the 911 emergency communications center that provides service to the location where the enclosure will be placed. The exact address, location description, and access code must be provided to the 911 emergency communications center to enable telephone guided access and relaying the access code in the event of an emergency. 6.1.8 Work with Wholesaler and AED TEAM to resolve End User satisfaction issues.6.2 Distributor shall communicate to its End User the Warranty.6.3 Distributor may engage in local lead generation activities such as telemarketing, local trade shows, meetings, as well as sponsorships.6.4 Distributor will maintain an adequate stock of Product for purposes of Product demonstrations, customer trials, and End User loans.6.4 Distributor shall promote and sell only to End Users in Distributor’s Market and Territory as set forth on the applicable Product Exhibit. Distributor shall not promote or sell AED TEAM refurbished or used equipment purchased from a third party.6.5 Distributor shall provide Wholesaler with an exemption certificate reasonably in advance of the date the product is available for delivery. Otherwise, Wholesaler shall invoice Distributor for those taxes, as well as any government surcharges, and Distributor shall pay those taxes in accordance with the terms of the invoice.6.6 Distributor shall promote and sell only those AED TEAM products authorized by AED TEAM. Distributor shall not promote or sell AED TEAM refurbished or used equipment purchased from a third party. Distributor shall not promote or sell AED TEAM refurbished or used equipment purchased from a third party.7. AED TEAM Obligations7.1 AED TEAM will:7.1.1 Provide telephone consultation to the Distributor for questions about Product capabilities and AED TEAM policies. Such information shall be for use only with Distributor’s organization.7.1.2 Provide Distributor the Product Warranty.7.1.3 Provide initial and on-going Product training to Distributor.8. Advertising, Trademarks and Copyrighted Materials8.1 AED TEAM hereby grants Distributor a revocable, non-exclusive license to use any AED TEAM trademark or trade name associated with the Products solely in the advertisement and promotion of the Products during the term of this Agreement. All advertisements or promotions shall be consistent with the AED TEAM supplied labeling. Except as provided in this Section, Distributor shall have no right, title or interest in or to any patent, trademark or trade name belonging to AED TEAM.8.2 Distributor shall return copyrighted materials upon Agreement termination; provided however, with AED TEAM’ prior written consent one (1) copy may be retained by Distributor for archive purposes only.9. Warranty and Limitations of Remedies9.1 The Products listed on the attached Product Exhibits are covered by the Product Warranty.9.2 Products are not returnable except as permitted in the AED TEAM Product Warranty.9.3 Distributor shall comply with Federal Trade Commission regulations requiring pre-sale availability of Warranty, as well as any other applicable federal or state law relating to Product warranties.9.4 Product Warranty does not transfer upon the sale of used demonstration products or supplies.9.5 THE WARRANTIES SET FORTH HEREIN AND IN AED TEAM’ WARRANTY DOCUMENT WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY AED TEAM IN CONNECTION WITH THE PRODUCT, THE SOFTWARE, AND THE TRANSACTIONS CONTEMPLATED BY THE QUOTATION, AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AED TEAM may use refurbished parts in the manufacture of the products, which are subject to the same quality control procedures and warranties as for new products.9.6 AED TEAM’s liability, if any, for damages whether arising from breach of the terms in this Agreement, breach of Warranty, negligence, indemnity, strict liability or other tort, or otherwise with respect to the Products and services is limited to an amount not to exceed the price of the Product or service giving rise to the liability.9.7 IN NO EVENT SHALL AED TEAM OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF THE TERMS IN THE QUOTATION, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT.10. Compliance with Laws10.1 Distributor shall comply with all applicable laws and regulations in performing its obligation under this Agreement.10.2 Distributor shall not cause or allow Product to be adulterated or misbranded and shall comply with all requirements of applicable laws.10.3 Distributor shall promote and sell Products consistent with Product labeling, documentation and clearances. Upon request, Distributor shall provide AED TEAM with Distributor’s marketing and sales materials used in connection with the Products and services to ensure that such materials conform with applicable law or any requirements established by AED TEAM.11. Tracking, Recall and Safe Harbor Regulations11.1 Product Reporting Requirements. Distributor shall establish a process to manage and collect feedback information from AED TEAM customers regarding AED TEAM Products, Services and personnel. AED TEAM defines Customer Feedback as any oral, written, or electronic information - including comments, compliments, enhancements, complaints, adverse events, privacy, or security issues - regarding customer perception or experience of a released AED TEAM product, process, or service. Distributor shall provide Customer Feedback to AED TEAM by emailing the following accounts email@example.com within twenty four (24) hours of obtaining feedback from customer. Distributor shall at AED TEAM’s request, undertake reasonable efforts to provide prompt assistance to AED TEAM in evaluating or investigating such allegations or events. AED TEAM shall use reasonable efforts to keep Distributor reasonably informed of any condition or event involving any Product that in AED TEAM’ judgment would be likely to cause or contribute to a death or serious injury.12. Termination12.1 Either Party may terminate this Agreement or any Exhibit(s) without cause at any time upon thirty (30) days prior written notice to the other Party.12.2 Distributor shall advise AED TEAM of any Changes of Control within ten (10) days of its occurrence. AED TEAM at its option may terminate this Agreement immediately upon a Change of Control.12.3 If AED TEAM believes Distributor has breached its obligations hereunder, then AED TEAM shall demand reasonable assurances from Distributor.12.4 If Distributor promotes or sells Products to End User customers outside Distributor’s Territory, AED TEAM may terminate the Agreement or any of the Product Exhibit(s) immediately.12.5 Distributor shall immediately cease to be an authorized AED TEAM Distributor upon the effective date of the termination of this Agreement. Distributor shall thereafter refrain from representing itself as an authorized AED TEAM Distributor and from using any AED TEAM trademark or trade name and shall return Product literature and collateral materials promptly. Distributor shall cease making any claims of any kind regarding being an authorized Distributor. All claims of every kind thereto shall cease.13. Notice13.1 Any notices given hereunder shall be given in writing by fax, electronically (e-mail), or by mail to the addresses of the Parties first set forth above, or to such other address for either Party as it may designate by written notice to the other. Notices sent by fax or electronically are valid as of the date sent. Notices sent by mail are valid as of the date received. However, if the notice is properly given by courier or mail and is not deliverable because the intended recipient refuses to accept it, fails to claim it, or cannot be located at the proper address, the notice shall be effective on the first day after it is sent by courier service or on the third day after it is mailed.14. Indemnification14.1 AED TEAM shall indemnify, defend, and hold harmless Distributor against any new claim that an AED TEAM product provided in the Agreement infringes, misappropriates, or violates any third party intellectual property right, whether patent, copyright, trademark, or trade secret, provided that Distributor: (a) provides AED TEAM prompt written notice of the claim; (b) grants AED TEAM full and complete information and assistance necessary for AED TEAM to defend, settle, or avoid the claim; and (c) gives AED TEAM sole control of the defense or settlement of the claim.14.2 If (a) an AED TEAM product is found or believed by AED TEAM to infringe a valid patent or copyright, (b) Customer has been enjoined from using the AED TEAM product pursuant to an injunction issued by a court of competent jurisdiction, or (c) Distributor has been enjoined from selling or distributing the AED TEAM product pursuant to an injunction issued by a court of competent jurisdiction, then AED TEAM may, at its option: (i) procure the right for Customer to use the product; (ii) replace or modify the product to avoid infringement; (iii) procure the right for Distributor to sell or distribute the product; or (iv) refund to Customer or Distributor a portion of the product purchase price upon the return of the original product. AED TEAM shall have no obligation for any claim of infringement arising from: AED TEAM’ compliance with Distributor’s or Customer’s designs, specifications, or instructions; AED TEAM’ use of technical information or technology supplied by Customer or Distributor; modifications to the product by Distributor, Customer, or their agents; use of the product other than in accordance with the product specifications or applicable written product instructions; use of the product with any other product and the AED TEAM product in and of itself is not infringing; if infringement would have been avoided by the use of a current unaltered release of the products; or use of the AED TEAM Product after AED TEAM has advised Customer, in writing, to stop use of the AED TEAM Product in view of the claimed infringement.The terms in this section 14.1 state AED TEAM’ entire obligation and liability for claims of infringement, and Distributor’s sole remedy in the event of a claim of infringement.14.2 Distributor will defend, indemnify and hold harmless AED TEAM, its directors, officers, employees and agents from and against all liabilities, costs, damages, claims and expenses, including reasonable attorneys’ fees, arising from or related to any actual or alleged (i) breach by Distributor of any express or implied covenant, representation, warranty, obligation or other term of this Agreement; or (ii) any negligent act or omission or willful misconduct of Distributor or its agents, employees or contractors.15. Exporting15.1 Products sold hereunder are not for export from the United States (“US”). Distributor agrees it shall not sell Products to a non-US entity or deliver to a non-US address or to any US entity or address when it has reason to believe the Products are intended for export or export sale by any third party. The Distributor hereby acknowledges that the Products and/or documentation supplied may be subject to export laws or regulations and agrees that it will not deal with the Products and/or documentation in violation of such laws and regulations.16. General Conditions16.1 This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. AED TEAM will be permitted to assign rights and delegate the performance of its obligations hereunder to its Affiliates. AED TEAM written authorization is required prior to Distributor assignment of any rights or delegation of performance. Any assignment in contravention of this Section shall be considered null and void.16.2 Neither Party's failure to exercise any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.16.3 The laws of the Commonwealth of Virginia will govern any disputes arising in connection with this Agreement without regard to the conflict of law principles. This Agreement supersedes any previous communication, representations, or agreements between the Parties, whether oral or written, regarding transactions hereunder. Distributor's additional or different terms and conditions will not apply. Distributor's purchase or license of Products and support will constitute Distributor's acceptance of this Agreement, which may not be changed except by an amendment signed by an authorized representative of each Party.16.4 Rights and obligations under this Agreement that by their nature should survive including confidentiality obligations, and indemnification will remain in effect after expiration or termination of the contract.16.5 Distributor shall maintain as confidential any proprietary confidential information or trade secrets (“Proprietary Information”) disclosed by AED TEAM in its discretion to Distributor, including its customers’ lists. No Proprietary Information shall be released, published, used or disclosed by Distributor without first obtaining the prior written consent of AED TEAM. All Proprietary Information shall be returned to AED TEAM upon request.
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Signed by Richard Shok
Signed On: December 14, 2023
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Document Name: AED TEAM DISTRIBUTOR AGREEMENT
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