DISTRIBUTOR AGREEMENT
THIS DISTRIBUTOR AGREEMENT is dated this 29th day of June, 2000 by and between
Sedona Worldwide Incorporated ("Company') and TSEuro, Inc. ("Distributor"), an
Arizona based Corporation.
1. RECITALS
1.1 Company is engaged in the manufacture of the product (the "Product").
1.2 Company desires to retain the services as a distributor for the
Product, and Distributor desires to render certain distributorship
services to Company for the Product on the terms and conditions set
forth herein.
II. TERMS AND CONDITIONS
NOW, therefore, for and in consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
2.1 ENGAGEMENT. Company hereby exclusively engages Distributor on an
independent contractor basis, and Distributor accepts engagement by
Company on an independent contractor basis to render certain
distributorship services to Company for the Product on the terms and
conditions set forth herein. (Exclusive territory as described on
"Exhibit A.")
TERM. The term of this Agreement shall commence as of the effective
date of this Agreement and continue for one year. The Agreement will
automatically renew for subsequent one-year periods upon mutually
agreed terms and conditions.
2.2 DUTIES. During the term of this Agreement, Distributor shall perform
the following duties (the "Distributor Duties") on behalf of the
Company:
A. Solicit and obtain on behalf of Company, within the Territory (as
hereinafter defined), purchase orders for the Product.
B. Assist Company in the marketing, promotion and sale of the
Product within the Territory, including the demonstration of the
capabilities of the Product.
C. Assist Company in the exhibition of the Product in industry trade
shows and exhibits, including the promotion and technical support
relating thereto.
D. Company has to make available to Distributor all requisite
certificates for conformity, quality, ISO 9000 and any other
certification in order for Distributor to distribute products in
Europe.
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2.3 CONSIDERATION. In consideration of the Distributor Duties under this
Agreement, Company agrees to sell the Product to Distributor at a
sales price not greater than the lowest price then currently granted
by Company for the Product to any Distributor. Company and Distributor
agree that the difference in the sales price between the price at
which Distributor may sell the Product and the sales price at which
Distributor may purchase the Product from Company is the consideration
for the Distributor Duties hereunder. Company agrees to notify
Distributor of any price changes at least thirty (30) days prior to
the effective date of any sales price changes. Company agrees to pay
set-up and on-going costs as described in "Exhibit B."
2.4 PAYMENT. Company and Distributor agree that each purchase order for
the Product shall be accompanied by a letter of credit equal to the
purchase price and that payment shall be made upon the date of
shipment to Distributor. All payments by Company shall be made in
United States currency.
INSURANCE. Company will maintain liability insurance in the amount of
$1,000,000 and aggregate in the amount of $2,000,000.
2.6 LIABILITY. Company will retain all product liabilities and will
communicate in a timely fashion any issue regarding the durability,
safety or effectiveness of the product.
2.7 TITLE. Title to all Products sold under this Agreement shall pass to
Distributor at the time of delivery to the common carrier for shipment
to Distributor.
2.8 TERRITORY. Distributor shall have the exclusive right to solicit and
obtain on behalf of the Company purchase orders for the Product within
that territory more particularly described on Exhibit "A" attached
hereto and by this reference incorporated herein (the "Territory").
Distributor agrees to confine its activities under this Agreement to
the Territory unless otherwise approved in writing by Company.
2.9 INFORMATION. Company shall provide to Distributor such information
concerning the Product as Company may have available and which
Company, in its sole and absolute discretion, deems relevant to the
fulfillment by Distributor of the Distributor Duties.
2.10 INCENTIVE PROGRAMS. Company shall make available to Distributor any
sales or incentive programs or similar programs that it may make
available to its other distributors from time to time. Distributor
acknowledges that such programs may contain standards, conditions or
requirements of uniform application which Distributor must meet in
order to use or benefit from the programs. Company agrees to
participate in the cost for customer's incentive programs, subject to
the Company's advance written approval in Company' sole and exclusive
discretion.
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2.11 DISTRIBUTOR'S REPRESENTATIONS AND WARRANTIES. Distributor hereby
covenants, warrants and represents, which covenants, warranties and
representations shall be continuing covenants, warranties and
representations, as follows:
A. Distributor shall devote so much of Distributor's time, knowledge
and skill as Distributor deems necessary to perform its
Distributor Duties under this Agreement.
B. Distributor has the requisite licenses, registrations and permits
necessary to perform its Distributor Duties under this Agreement.
C. Distributor acknowledges and agrees that Distributor shall be and
remain an independent contractor for the Company and be
responsible for the withholding and payment of any and all state
and federal income taxes, FICA or social security taxes, and FUTA
or unemployment taxes.
D. Distributor agrees to provide to Company with such information as
may be requested by Company in connection with the processing of
any purchase orders for Products. In addition, Distributor agrees
to provide to Company such sales information as may be requested
by Company.
E. Distributor further acknowledges that Company shall have no
obligation to process any purchase orders for products other than
the Product nor any obligation to process purchase orders for the
Product solicited outside the Territory.
F. Distributor agrees that all information, from whatever source,
pertaining to the Company, including but not limited to
information relating to the Product, is the sole and exclusive
property of Company. Distributor further acknowledges that such
information shall not be disclosed in any fashion or manner by
Distributor during the term of this Agreement, or at any time
thereafter, except as may be necessary for Distributor to fulfill
its Distributor Duties hereunder or as may be agreed to by
Company in writing.
G. Distributor shall make no representations or warranties with
respect to the Product, without the prior written consent of
Company.
H. Distributor shall comply with all laws, ordinances and
regulations applicable to the operation of Distributor and its
performance under this Agreement.
2.10 EXPENSES. Company shall have no obligation to reimburse or otherwise
pay for any expenses incurred by Distributor in connection with the
performance of the Distributor Duties under this Agreement, without
prior written agreement.
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2.11 ASSIGNABILITY. Company and Distributor acknowledge and agree that
Distributor shall have the right to hire, fire, supervise and pay
employees to accomplish ail Distributor Duties to be performed
hereunder by Distributor. Company and Distributor further acknowledge
and agree that Distributor shall provide experienced and qualified
employees to perform the Distributor Duties and that Distributor shall
be responsible for directing Distributor's employees as to the manner
and means of accomplishing the Distributor Duties to be performed
hereunder by Distributor.
2.12 LIMITATION ON SCOPE OF ENGAGEMENT. Company and Distributor acknowledge
that Distributor is being retained by Company only for the purposes
and to the extent set forth in this Agreement. Except as set forth
herein, neither Distributor nor any employees of Distributor, shall be
considered as having any employee or agent status with Company, or as
being entitled to participate in any bonus, vacation, sick pay or
similar fringe benefits of Company by virtue of the provisions of this
Agreement, including but not limited to any qualified employee benefit
plans.
2.13 INDEMNIFICATION. Distributor shall indemnify and hold harmless Company
and its officers, directors, shareholders, employees and agents from
any and all liability, judgments, damages, costs or expenses,
including without limitation, reasonable attorneys' fees, in
connection with loss of life, personal injury or property damage, or
other claims, actions, damages, liabilities, costs or expenses arising
out of or in connection with Distributor's intentional, willful or
negligent acts or omissions to act as required or permitted under or
in connection with this Agreement, or arising out of or in connection
with Distributor's breach of this Agreement.
2.14 TERMINATION. This Agreement and all rights and obligations hereunder
shall terminate, with respect to the parties to any such termination,
upon the occurrence of any of the following:
A. Ninety (90) days after written notice from Distributor to
Company, without cause, unless Company shall accept a shorter
notice period.
B. Ninety (90) days after written notice from Company to
Distributor, without cause, unless Distributor shall accept a
shorter notice period.
C. Immediately, upon the dissolution of Distributor or the
dissolution of Company.
D. Immediately, upon the mutual consent of Company and Distributor.
If this Agreement is terminated, neither Company nor Distributor
shall be entitled to any compensation or reimbursement for loss
of prospective profits, anticipated sales or other losses.
Following termination of this Agreement, Company may continue to
process purchase orders for the Product.
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2.15 RELATIONSHIP OF PARTIES. The relationship of the parties herein shall
be that of principal and independent contractor and not that of
employer and employee. Nothing contained in this Agreement shall be
deemed or construed to create a partnership, tenancy-in-common, joint
tenancy, joint venture, co-ownership or other similar relationship by
or between Company and Distributor. Distributor shall have full power
and authority to select the means, manner, method and sequence of
performing the services hereunder without control or direction by
Company.
2.16 DILIGENCE. Company and Distributor hereby agree to exercise due
diligence in the satisfaction of any and all conditions to be
satisfied by either of them according to the terms of this Agreement.
2.17 TIME. Time is of the essence of this Agreement and Company and
Distributor hereby agree to perform each and every obligation
hereunder in a prompt and timely manner.
2.18 INVALIDITY. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be valid under applicable law, but
if any provision of this Agreement shall be invalid or prohibited
hereunder, such provision shall be ineffective to the extent of such
prohibition or invalidation but shall not invalidate the remainder of
such provision or the remaining provisions of this Agreement.
2.19 NOTICE. Any and all notices or demands by or from Company to
Distributor, or Distributor to Company, shall be in writing. Such
notices shall be served either personally, by certified mail or by
telegraphic method. If served personally, notice shall be conclusively
deemed given at the time of service. If served by certified mail,
notice shall be conclusively deemed given forty-eight (48) hours after
deposit thereof in the mail, postage prepaid, addressed to the party
to whom such notice or demand is to be given as hereinafter provided.
If served by telegraphic method, notice shall be conclusively deemed
given at the time the telegraphic agency shall confirm to the sender
delivery thereof to the addressee. Any notice or demand to Company and
Distributor may be given to each respective party at the following
addresses, or at such other address as the parties may designate in
writing by notice to the other party from time to time:
Company: Distributor:
Sedona Worldwide, Inc. TSEuro, Inc.
3840 North 16" Street 2111 East Highland Avenue
Phoenix, AZ 85016 Phoenix, Arizona 85016
Mia A. Martori, President Scott W. Christensen, President
2.20 ATTORNEYS' FEES. In the event it becomes necessary for either
Distributor or Company to employ legal counsel or to bring an action
at law or other proceeding to enforce any of the terms, covenants or
conditions of this Agreement, the prevailing party in any such action
or proceeding shall be entitled to recover its costs and expenses
incurred in such action from the other party.
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2.21 THIRD PARTIES. This Agreement shall not be construed to create any
rights in persons or entities not parties hereto, and there are no
third-party beneficiaries of this Agreement.
2.22 WAIVER. No failure on the part of any party hereto to exercise any
right or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any
other right or remedy granted hereby or by law.
2.23 ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto with respect to the matters set forth, herein, and
supersedes all prior arrangements and understanding between the
parties, and no other agreement, statement or promise made by either
party hereto which is not contained herein shall be binding or valid.
2.24 AMENDMENT. This Agreement may only be amended by written document
signed by each of the parties hereto,
2.25 ADDITIONAL DOCUMENTS. Each party will, whenever and as often as it
shall be requested by the other party, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such
further Instruments and documents as may be reasonably requested in
order to carry out the intent and purpose of this Agreement.
2.26 COUNTERPARTS. This Agreement shall be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
2.27 SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the successors in interest and assigns of the parties
hereto.
2.28 APPLICABLE LAW. This Agreement shall be construed and interpreted
under, and governed and enforced according to the laws of the State of
Arizona.
2.29 JURISDICTION. Distributor hereby submits to jurisdiction and venue of
the courts of the State of Arizona, including the United States
District Court for the District of Arizona.
2.30 AUTHORITY. Each of the individuals executing this Agreement represents
and warrants to the other party that the execution and delivery of
this Agreement has been duly authorized by all necessary action and
that this Agreement constitutes and will constitute a binding
obligation of each such party.
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2.31 CAPTIONS. Captions and paragraph headings used herein are for
convenience only and are not part of this Agreement and shall not be
deemed to limit or after any provision hereof, and shall not be deemed
relevant in construing this Agreement.
2.32 INTERPRETATIONS. To the extent permitted by the context in which used
(i) words in the singular number shall include the plural, words in
the masculine gender shall include the feminine and neuter, and vice
versa; and (ii) references to "persons" or "parties" in this Agreement
shall be deemed to refer to natural persons, corporations, general
partnerships, limited partnerships, trusts and all other entities.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
"COMPANY" "DISTRIBUTOR"
SEDONA WORLDWIDE INCORPORATED TSEURO, INC.
3840 North 16th Street 2111 East Highland Ave, Suite 145
Phoenix, AZ 85016 Phoenix, AZ 85016
By: /s/ Mia A. Martori By: /s/ Scott W. Christensen
-------------------------------- --------------------------------
Mia A. Martori Scott W. Christensen
President President
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EXHIBIT "A"
Territory
All countries of Europe
*Except England and Italy
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EXHIBIT "B"
Start-up Costs
* Company agrees to pay $5,000.00 for testing, certification, label
translation and Internet posting.
* FEE DUE: within 10 days of product selection.
On-going Costs
* Company agrees to pay 5% of P.O. total to T.S. Euro for Co-op Funds.
* Company agrees to pay 2% of P.O. total to T.S. Euro for Customer Service
Support, Distributor Training and Point-of-Purchase Training.
* FEES DUE: will be taken as a credit against product purchases.
