Distributor Agreement (USA)
This Distributor Agreement (Agreement) is between Raymarine, Inc., a Delaware corporation, with offices at 9 Townsend West, Nashua NH 03063 (“Raymarine”) and the distributor, dealer, integrator, original equipment manufacturer (OEM) and/or reseller (hereinafter, “Distributor”) identified below. Raymarine, a FLIR Commercial Systems, Inc. (“FLIR”) company, manufactures and sells commercial products for the leisure marine market and FLIR manufactures and sells thermal imaging systems and other commercial products for the personal vision and leisure marine markets. Distributor is experienced in the marketing and sale of commercial products in one or more of these markets. Distributor wishes to purchase products from Raymarine for resale to U.S. customers, on the terms and subject to the conditions of this Agreement.
Effective Date
Distributor / Distributor Name: / (“Distributor”)
Place of Incorporation:
Mailing Address:
Orders from Distributor will come from one or more addresses in addition to the address above.
URL:
Distributor Contact / Contact Name: / Phone (office):
Title: / Phone (cell):
Email Address: / Phone (fax):
Entire Agreement / This Agreement is comprised exclusively of:
(1) Signature Page (page 1)
(2) Terms and Conditions (pages 2 through end)
(3) Schedule A
(4) Price Lists, Marketing Programs, Policy Statements, and all other documents referenced in Schedule A (as applicable)
DISTRIBUTOR ACKNOWLEDGES THAT IT HAS READ AND AGREES TO BE BOUND BY THIS ENTIRE AGREEMENT AS OF THE EFFECTIVE DATE AND THROUGHOUT THE TERM OF THIS AGREEMENT AND THAT ALL ITEMS THAT COMPRISE THIS AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE.
RAYMARINE, INC. / DISTRIBUTOR
By: / By:
Name: / Name:
Title: / Title:
Date: / Date:
FLIR USE ONLY – Export Screening Verification
Name: / Date:
Include a print-out of screening results when submitting for signature. Contact Global Trade Compliance (GTC) with questions.
Page 1 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
Page 2 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
1. DEFINITIONS.
1.1 “Field” means all purchasers of Systems for one or more of the applications specified in Schedule A.
1.2 “Systems” means the products specified in Schedule A of this Agreement in the “Systems and Pricing” Section and any related documents, accessories, and services.
1.3 “Territory” means the United States, including Alaska and Hawaii, but excluding U.S. possessions.
1.4 “Term” means the period after the Effective Date extending to the date on which this Agreement is terminated or terminates according to its terms.
2. RESPONSIBILITIES OF DISTRIBUTOR.
2.1 Appointment. Subject to Distributor’s compliance with all of the terms and conditions of this Agreement, Raymarine hereby appoints Distributor as a non-exclusive authorized Distributor for Systems in the Territory and Field. Distributor may purchase Systems from Raymarine for resale to customers in the Territory and Field only. It is an express condition of this Agreement that Distributor shall not sell any Systems: (i) to purchasers who are buying them for resale as a stand-alone product; and (ii) for import into Cuba, North Korea, Iran, Syria, and Sudan, irrespective of the scope of Distributor’s Territory. Raymarine reserves the right to: (i) sell Systems in the Territory and Field; and (ii) appoint other distributors, OEMs, sales representatives, and agents in the Territory and Field. Distributor shall not subcontract its responsibilities under this Agreement without Raymarine’s written consent.
2.2 No Additional Warranties. Distributor shall not make warranties or representations regarding Systems that differ from or add to Raymarine’s representations. Distributor shall indemnify Raymarine against and hold it harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or relating to Distributor’s failure to comply with this Section2.2.
2.3 Display and Demonstration Equipment.
2.3.1 Display Equipment. Certain equipment for use by Distributor as display equipment, if applicable, is subject to the supplemental Display Equipment Program or Consignment Agreement specified in Schedule A.
2.3.2 Thermal Imaging Demonstration Equipment. Upon execution of this Agreement, Distributor shall purchase from Raymarine, for demonstration purposes, the Minimum Demonstration Equipment specified in Schedule A, if any. Distributor may purchase one (1) of each Demonstration Equipment Systems specified in Schedule A, if more than one is specified. Subject to Distributor’s compliance with Section 2.11 and after Distributor offers Raymarine an opportunity to repurchase the Demonstration Equipment at its current market value and Raymarine declines, Distributor may resell such Demonstration Equipment to a third party six (6) months after purchase solely “as is” and with no warranty.
2.4 Minimum Order Requirement/Minimum Sales Targets. Dealer shall abide by the Minimum Order Requirement (MOR) in Schedule A, if applicable. Dealer shall use its best efforts to achieve the Minimum Sales Targets (MST) as specified in Schedule A, if applicable. If Dealer fails to meet, or if Raymarine, in its sole discretion, determines that it is unlikely that Dealer will meet the MOR or the MST, Raymarine may terminate this Agreement for breach under Section 9.2. Raymarine may, in its sole discretion, change the MOR or MST annually.
2.5 Support. Upon Raymarine’s reasonable request, Distributor shall act as the initial source of Systems support for Distributor’s customers, and shall provide primary and ongoing support services that include, but are not limited to, training, first-line Systems repair and maintenance, and technical advice. Such support services shall be at Distributor’s expense and subject to applicable export laws and regulations.
2.6 Liability Insurance. Distributor shall maintain comprehensive general liability insurance that is acceptable to Raymarine with limits not less than one million dollars ($1,000,000) per occurrence for bodily injury and five hundred thousand dollars ($500,000) per occurrence for property damage. Distributor shall provide evidence of its liability insurance to Raymarine immediately upon request, and shall advise Raymarine immediately of any changes in coverage or insurer.
2.7 Reports and Forecasts. At Raymarine’s request, Distributor shall provide Raymarine with a written report summarizing all sales, the names and addresses of customers contacted, promotional sales activities, customer feedback forecasts, and any other Systems activity information as Raymarine may reasonably request.
2.8 Records and Audits. Distributor shall maintain records for each System purchased which shall include the name and address of each end-user and potential end-user of the System and technical data related thereto. During the Term and for three (3) years after termination of this Agreement, Raymarine shall have the right to audit, at Raymarine’s expense, all such records to verify Distributor’s compliance with its obligations under Sections 2.1, 2.6, 2.9, 2.10 and 2.11. Distributor shall provide Raymarine access to all such records during normal business hours upon request. Notwithstanding anything in this Section 2.8, Distributor is solely responsible for ensuring Distributor’s full compliance with the obligations in Section2.11.
2.9 Training. Raymarine may provide initial training to Distributor on use of Systems, and shall update that training as Raymarine deems appropriate. Distributor thereafter shall provide initial and ongoing training as directed by Raymarine, in the proper use of Systems to all: (i) employees and authorized representatives who demonstrate and sell Systems; and (ii) customers who purchase Systems from Distributor. Distributor shall ensure that Distributor’s trainees on Systems have read, and are familiar with, the Systems’ operating manuals and other Systems information prior to using Systems.
2.10 Compliance With Laws. Distributor shall, during the Term and thereafter with respect to surviving obligations achieve ongoing familiarity and compliance with all laws, treaties, rules, regulations, orders, and other requirements applicable to Distributor’s performance under this Agreement, including, without limitation, the U.S. Foreign Corrupt Practices Act (FCPA), as well as any other anti-corruption laws applicable in the Territory (Anti-Corruption Laws). Distributor shall, at its own expense and on an ongoing basis, obtain and maintain all permits, licenses, and approvals that are required from time to time for Distributor to perform under this Agreement.
2.11 Export Compliance. Unless expressly indicated in Schedule A, some Systems are subject to U.S. Government export laws and regulations (Export Laws). Distributor shall not export, re-export, or transfer (directly or indirectly) the Systems or related technical data received from Raymarine without strictly complying with all Export Laws, including obtaining all required licenses, authorizations, certifications, and approvals. Distributor shall inform its customers that Systems are subject to Export Laws. Distributor understands that an express condition of every sale of a System is the issuance of appropriate authorization by export authorities. Raymarine has no control over the decisions of governments and undertakes no liability to Distributor or any third party in any way for such decisions. Nothing in this Section shall be considered authorization for Distributor to sell, directly or indirectly, Systems outside Distributor’s Territory. Prior to any sale of Systems or related technical information, Distributor shall check the most recent export restriction lists maintained by the Department of Commerce and the Department of State, including, without limitation, the denied persons list, unverified list, entity list, specially designated nationals list, and the debarred list (see: http://www.bis.doc.gov/ComplianceAnd Enforcement/ListsToCheck.htm). Distributor shall also check other lists maintained by other U.S. government agencies, as applicable.
3. PURCHASE OF SYSTEMS.
3.1 Orders. Distributor may order Systems by submitting written purchase orders to Raymarine (Orders). Orders shall be deemed accepted unless Raymarine notifies Distributor otherwise in writing. Additional or different terms proposed by Distributor and not specifically accepted by Raymarine in writing shall not apply to this Agreement. Distributor is not entitled to any priority of supply. Raymarine may discontinue and change Systems in Raymarine’s discretion. Distributor may cancel or reschedule Orders if Raymarine consents in writing, and Distributor complies with Raymarine’s Restocking Policy. A copy of the Restocking Policy will be supplied to Distributor upon its written request.
3.2 Prices. Prices for Systems purchased by Distributor shall be according to Raymarine’s then-current price list or program as set forth in Schedule A of this Agreement. Raymarine may change Prices or Distributor’s Pricing Level at any time (Price Change). All Orders accepted after the effective date of a Price Change shall be subject to such Price Change.
3.3 Payment. Distributor shall pay Raymarine in U.S. Dollars within thirty calendar (30) days of Delivery (as defined in Section 3.6 below), conditioned on approved credit. If credit is not approved, Distributor shall pay in advance or by letter of credit acceptable to Raymarine. Raymarine may invoice Distributor upon the earlier of Delivery or notice of Delivery readiness, and for pro rata amounts for partial shipments.
3.4 Failure to Pay. Distributor shall pay monthly interest at a rate of one and one half percent (1½%), or the maximum allowed by law, of the unpaid balance on all overdue payments. Distributor shall pay Raymarine’s costs of collection including, but not limited to, attorneys’ fees and costs.
3.5 Taxes. Except for taxes based on Raymarine’s net income, Distributor shall pay applicable sales, use, property, value-added, or other similar taxes, duties, and assessments imposed with respect to Systems.
3.6 Shipment and Delivery. Deliveries of Systems shall be Ex Works (Incoterms 2010) Raymarine’s or its agent’s plant (Delivery). If Raymarine, as a courtesy to Distributor, agrees to arrange carriage of the Systems on Distributor’s behalf, Distributor shall be responsible for all transportation, brokerage, handling, and other charges incurred and Raymarine may invoice Distributor for all such costs without altering the term of Delivery. Systems shall be packaged for shipment in accordance with Raymarine’s standard practices. Title and full risk of loss pass to Distributor upon Delivery. Insurance coverage on all shipments shall be the responsibility of Distributor. Upon Order acceptance, Raymarine will provide Distributor with a non-binding estimate of Delivery date(s). Raymarine will substantially meet estimated Delivery dates, but shall not be liable for any damages resulting from any delay in Delivery.
4. LIMITED WARRANTY
Raymarine warrants that on the date of Delivery and for one (1) year thereafter (Warranty Period), the Systems will substantially conform to Raymarine’s specifications and be free from defects in material (Warranty). Distributor shall send Warranty claims to Raymarine, in writing, promptly and, in any event, within the Warranty Period. Raymarine, at its sole option, shall either repair or replace nonconforming Systems (Remedy). This Warranty is void if the System has been repaired, altered, or modified in any manner by persons other than Raymarine or Raymarine’s authorized representatives. The Warranty excludes nonconformities resulting from: (i) normal wear and tear; and (ii) failure to properly store, install, operate, or maintain the System. The Remedy is Raymarine’s sole obligation, and Distributor's sole and exclusive remedy, for all claims of nonconformities. If the Remedy is adjudicated to be insufficient, Raymarine shall refund Distributor’s paid Price and have no other liability to Distributor. Raymarine warrants repairs and spare or replacement parts manufactured by Raymarine for six (6) months after returning Systems to Distributor, or the remainder of the Warranty Period, whichever is greater. Distributor shall pay the costs of returning nonconforming Systems to Raymarine and Raymarine will pay the costs of return shipping to Distributor. RAYMARINE DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, WITH RESPECT TO SYSTEMS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.
NOTE: Some Raymarine products are eligible for extended warranty coverage. Original end-user purchasers should review their product literature or visit www.raymarine.com for product-specific warranty information and important terms, conditions, limitations and exclusions.
5. INDEMNIFICATION. Distributor shall, to the fullest extent permitted by law, indemnify Raymarine against and hold it harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or relating to: (i) the failure of Distributor to comply with all applicable laws, rules, and/or regulations, including, without limitation, Anti-Corruption Law and Export Laws; (ii) the failure of Distributor to comply with the terms and conditions of this Agreement; (iii) any negligent act or omission of Distributor; (iv) intellectual property infringement caused by Distributor’s integration of Systems into other products; and (v) any claims by end users of Systems related to this Agreement (Claims). Raymarine may participate in the defense or settlement of any Claim, suit or proceeding with counsel at its expense.