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This Dealer Agreement (the "Agreement") is executed this ____ day of __________, 200__ (the "Effective Date"), by and
between FOTO-FONE, INC. d/b/a/ Bizfōn ("Bizfōn"), a Delaware corporation having a place of business at 50 Stiles Road,
Salem, New Hampshire 03079, and [insert Dealer's legal name] ("Associate Dealer"), a [insert Dealer's state of
incorporation/formation] [insert Dealer's type of business entity] having a place of business at _____________________.
1. DEFINITIONS. The following terms shall have the described meanings:
1.1 "Customer" is a purchaser of the Product from the Dealer.
1.2 "Order" means an order for the purchase of Products that the Dealer has submitted to Bizfōn directly or via Bizfōn's
website designated for Dealer Orders at http//:www.bizfon.net.
1.3 "Products" shall mean only those specific products and Software listed for sale by Bizfōn on Exhibit A to this
Agreement and such additional products and services that Bizfōn may, from time to time, specifically designate in
writing to Dealer as additional or new products that Bizfōn authorizes Dealer to sell.
2. DESIGNATION. Subject to the terms and conditions contained in this Agreement, Bizfōn hereby appoints Dealer as an
authorized, sales agent to solicit Orders for Products. Dealer hereby accepts such appointment and agrees to sell and
promote the Products subject to the terms and conditions of this Agreement. Notwithstanding anything in this Agreement
to the contrary, Bizfōn shall have no obligation to offer for sale any particular Product or Products in its catalog and
reserves the right to discontinue the sale of any Product or Products in its sole discretion and without notice to
Dealer.
3. ORDERS.
3.1 Contents. Each Order shall include: (i) unit description and quantity; (ii) unit price; (iii) shipping destination;
(iv) requested delivery date; (v) Bizfōn's part number(s); and (vi) other instructions or requirements pertinent to the
Order. To the extent of any inconsistency between the terms of an Order and the terms of this Agreement, the terms
specified in this Agreement shall take precedence.
3.2 Acceptance. All Orders are subject to the availability of the particular Products. No Order for Products will be
binding on Bizfōn unless accepted by Bizfōn at its principal office.
3.3 Terms and Conditions of Sale. All Orders shall be subject to Bizfōn's Standard Terms and Conditions applicable to
sales that are current and in effect at the time of an Order and that Bizfōn may, in its sole and final discretion,
revise from time to time with notice to Dealer or Customers; provided, however, that if the provisions of the Standard
Terms and Conditions conflict in any way with any provision of this Agreement, this Agreement shall control.
4. PRICES. Bizfon Dealer Pricing may change at the discretion of Bizfon. Bizfon will notify Dealer 30 days in advance of
any pricing changes.
5. DEALER REPRESENTATIONS, OBLIGATIONS AND RESTRICTIONS.
5.1 References. Before placing any Order's (for net 30 terms) hereunder, Dealer shall provide to Bizfōn the names,
addresses, and telephone numbers of at least two business references and three credit references whose last contact with
Associate Dealer occurred within the last 12 months. Dealer hereby authorizes Bizfōn to contact such reverences and
conduct a reasonable inquiry into Dealer's business practices or credit history, as the case may be.
5.2 Representations and Warranties. Dealer represents and warrants to Bizfōn that Dealer is not a party to any agreement
containing a non-competition clause or other provision, which would restrict or otherwise affect the obligations of
Dealer hereunder. Dealer shall defend, indemnify, and hold Bizfōn harmless from and against any and all claims, actions,
suits and demands against, and all damages, liabilities, losses, costs and expenses incurred by, Bizfōn resulting from
or related to Dealer's breach of these representations and warranties.
5.3 Expenses. Dealer will be fully responsible for and will pay all expenses that Dealer incurs in performing services
under this Agreement. .
5.4 Representations to Customers. Dealer will make only such representations concerning any Products as have been
approved by Bizfōn.
5.5 Order Form. Dealer will provide Bizfōn with Product orders in the form and using transmission procedures as required
by Bizfōn.
5.6 Quality Standards. Dealer will meet all reasonable quality and/or certification standards that Bizfōn may establish
from time to time and will satisfactorily complete any required training. .
5.7 Sales Efforts and Terms. The purpose of this Agreement is to promote the distribution of Bizfōn's Products. Dealer
agrees to use its best efforts toward that end consistent with Bizfōn's then current terms and conditions, sales
programs, sales procedures and special promotions established by Bizfōn from time to time. Dealer shall not make any
sales of Products over the Internet without Bizfōn's approval of the specific manner in which Internet sales are to be
conducted, which approval may be withheld in Bizfōn's sole and final discretion.
5.8 Customer Complaints. Dealer will cooperate fully with Bizfōn and use its best efforts in resolving any Customer
complaints. Performance Standards. Dealer will perform all services under this Agreement in accordance with the highest
industry standards and to Bizfōn's reasonable satisfaction.
5.9 Data Collection. Dealer will cooperate with Bizfōn in the collection, compilation and maintenance of data required
to be reported by Bizfōn pursuant to any federal or state statute, regulation or order.
6. MARKETING. Bizfōn will make sales brochures for the Products to available to Dealer at a cost to Dealer reasonable to
cover cost of production, shipping and handling. Any advertising for Products undertaken by Dealer must be approved by
Bizfon.
7. SHIPPING AND PAYMENT TERMS.
7.1 Delivery by Company. Upon Bizfōn's receipt and acceptance of Dealer's Orders, Bizfōn shall ship all ordered Products
either directly to Dealer or to Dealer's Customer as Dealer shall direct in its order in Bizfōn's discretion. Shipping
shall be F.O.B. Bizfōn's place of shipment, and Dealer shall accordingly be responsible for all shipping and handling
charges and shall bear all risk of loss, damage or theft after the Products leave such facility and while in transit.
7.2 Payment Terms. Any payment not made when due shall be subject to a monthly penalty equal to two percent (2%) of the
outstanding invoice amount, such penalty to become due and owing every thirty (30) days (or part thereof) that such
payment (or part thereof) remains outstanding. .
7.3 Country of Origin Marking and Certification (Including NAFTA Certification). Bizfōn shall mark each Product, or the
container if marking the Product is not practical, with the country of origin. Upon request, Bizfōn will provide an
appropriate certification stating the country where the Product(s) were manufactured, sufficient to satisfy the
requirements of the customs authorities of the country of receipt and any applicable export licensing regulations,
including those of the United States.
7.4 Federal Procurement Regulations. For Products purchased under this Agreement for incorporation into products to be
sold under a federal contract or subcontract, those applicable procurement regulations that are required by federal
statute or regulation to be inserted in contracts or subcontracts shall, upon prior written notice to, and acceptance
by, Bizfōn be deemed incorporated in this Agreement and made to apply to the Orders issued by Bizfōn hereunder pursuant
to a federal contract or subcontract.
7.5 Taxes. Except as otherwise expressly provided in this Agreement, Dealer and Customers, as the case may be, shall be
responsible for all taxes (including, without limitation, all applicable state and local sales, value added (VAT), use,
property (ad valorem), withholding and similar taxes), expenses and disbursements incurred by Dealer or Customer in
connection with its performance hereunder.
8. LIMITED WARRANTY; DISCLAIMER.
8.1 Limited Exclusive Warranty. The Products in hands of Dealer's customers are subject to Bizfōn's standard warranty
(the "Exclusive Warranty") that is in effect at the time of an Order and as Bizfōn may amend or revise from time to time
in its sole and final discretion. The Exclusive Warranty is in lieu of all obligations or liabilities on the part of
Bizfōn for damages, including but not limited to special, punitive, indirect or consequential damages, arising out of or
in connection with the use or performance of the Products, whether the claim or claims therefore are based on
negligence, strict liability, contract or otherwise. Bizfōn assumes no liability for expenses of removing any defective
Product or part or for installing the repaired Product or replacement. The foregoing shall constitute Bizfōn's sole
liability to Dealer or Dealer's Customers. IN NO EVENT SHALL Bizfōn's AGGREGATE LIABILITY TO DEALER FOR ANY CLAIMS
ARISING FROM THIS AGREEMENT EXCEED THE AMOUNT OF SALES DEALER HAS MADE PURSUANT TO THIS AGREEMENT.
8.2 Warranty Disclaimer. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY EXPRESSLY DISCLAIMED AND WAIVED INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
AND THE IMPLIED WARRANTY AGAINST INFRINGEMENT. THIS LIMITATION OF Bizfōn 'S LIABILITY WILL APPLY REGARDLESS OF THE FORM
OF ACTION WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
9. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS. Bizfōn may, in its sole and final discretion, modify the specifications
and material content of Products designed by Bizfōn.
10. INTELLECTUAL PROPERTY MATTERS.
10.1 Patents. If notified promptly in writing of any action (and prior claims relating to such action) brought against
Dealer, based on a claim that any Products infringe a United States patent, Company will defend such action at its
expense and will pay the costs and damages awarded in any such action, provided that Company shall have the sole control
of the defense of any such action and all negotiations for its settlement or compromise.
11. USED OR REFURBISHED PRODUCTS. Notwithstanding any representation or warranty by Bizfōn in any of its promotional
materials or any statement or representation by Dealer to its Customers to the contrary, Bizfōn may not provide Customer
support of any kind, with respect to any Products that are used, resold and/or have been refurbished.
11.1 Term; Termination. This Agreement shall continue until terminated by either Bizfōn or Associate Dealer, but in no
case longer than five (5) years. Either party may terminate this Agreement, with or without cause or good reason, or for
any reason, by providing written notice of termination to the other party.
11.2 Effect of Termination. Upon termination of this Agreement (i) the rights to payments and the obligations of either
party that have come due before termination will continue in full force and effect; and (ii) Dealer will immediately
return to Bizfōn all promotional and instructional materials supplied to Dealer by Bizfōn or relating to Dealer's
performance of services under this Agreement. Dealer will destroy or delete any Bizfōn material on Dealer's computing
equipment, in any form, within ten (10) days of the date of termination or expiration, and Dealer will provide Bizfōn
with written confirmation that all such material has been destroyed or deleted.
12. LIMITED LIABILITY; INDEMNIFICATION.
12.1 Limited Liability. IN NO EVENT SHALL BIZFŌN BE LIABLE TO DEALER OR TO ANY CUSTOMER OF DEALER FOR (1) INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (2) ANY DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF
DELAYS OR INTERRUPTIONS IN TELECOMMUNICATIONS SERVICES, LOSS OF USE, DATA, REVENUES, OR PROFITS, COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, OR FAILURE OF A TRANSACTION OR (3) ANY DAMAGES WHATSOEVER RESULTING FROM ILLEGAL,
UNAUTHORIZED, OR FRAUDULENT USE OF PRODUCTS (TOLL FRAUD), EVEN IF THE REMEDIES ALLOWED HEREIN FAIL IN THEIR ESSENTIAL
PURPOSE AND EVEN IF BIZFŌN HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DEALER AGREES THAT BIZFŌN'S LIABILITY
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATING TO ANY SERVICE OR PRODUCT PROVIDED HEREUNDER SHALL BE LIMITED
SOLELY TO DEALER'S DIRECT DAMAGES AND IN NO EVENT SHALL EXCEED THE TOTAL AGGREGATE PURCHASE PRICE DEALER HAS PAID TO
BIZFŌN PURSUANT TO THIS AGREEMENT EXCLUSIVE OF REBATES AND OTHER DISCOUNTS.
12.2 Indemnification. Dealer shall hold harmless, indemnify and defend Bizfōn from and against any and all claims
arising from Dealer's breach of this Agreement.
13. CONFIDENTIAL INFORMATION.
13.1 Confidential Information. During the term of this Agreement, Dealer may receive or have access to technical
information, as well as information about Product plans and strategies, promotions, customers and related non-technical
business information which Bizfōn considers to be confidential ("Confidential Information"). Unless Dealer secures
authorization from Bizfōn, Dealer will not publish, list or display any Bizfōn information, graphics, pricing or
proprietary information on the Internet or elseware.
13.2 Nondisclosure. Confidential Information may be used by Dealer only with respect to performance of its obligations
under this Agreement, and only by those employees of Dealer who have a need to know such information for purposes
related to this Agreement. Dealer shall protect the Confidential Information by using the same degree of care (but not
less than a reasonable degree of care) to prevent the unauthorized use, dissemination or publication of such
Confidential Information, as Dealer uses to protect its own confidential information of like nature
14. MISCELLANEOUS PROVISIONS.
14.1 Independent Contractors. Dealer's relationship with Bizfōn will be that of an independent contractor with limited
power and authority to represent Bizfōn for the sole purpose of selling Products and only to the extent explicitly
provided for in this Agreement. Dealer will not make any representation to the contrary to any person. In particular,
Dealer acknowledges that all persons providing services under this Agreement are Dealer's employees and that they are
not the Dealers or employees of Bizfōn. Dealer will not bind, or attempt to bind, Bizfōn to any obligation with any
third party, it being intended that each party is responsible for its own actions. Persons providing services under this
Agreement will not be entitled to any benefits that Bizfōn provides its own employees.
14.2 Dispute Resolution. In the event of disagreement with respect to any aspect of this Agreement, the parties agree to
discuss in good faith to reach an amicable resolution, and to escalate such resolution process to the appropriate
members of their respective management organization who have the power and authority to achieve a successful resolution.
Before either party commences an action against the other party, it shall give written notice to the other party of its
intention to file such action, and the senior management of the parties then shall meet in good faith to resolve the
dispute by an alternative dispute resolution method such as mediation
14.3 Notice. Unless otherwise stated, all notices required under this Agreement shall be in writing and shall be
considered given upon personal delivery of the written notice, within forty eight (48) hours after deposit in the U.S.
Mail, certified or registered, upon delivery by overnight or private courier, or upon confirmation of transmission by
facsimile transmittal or electronic mail addressed to the parties as follows:
If to Bizfōn:
If to Dealer:
[name and title]
[name and title]
FOTO-FONE, INC.
[name of company]
50 Stiles Road
____________________
Salem, NH 03079
____________________
Telephone:(603) 870-4400
Telephone:
Facsimile:
Facsimile:
Email:
Email:
14.4 No Assignment. Dealer shall not assign or transfer any of the rights or responsibilities set forth herein, without
Bizfōn's express written consent and any purported attempt to do so shall be deemed void.
14.5 Governing Law. This Agreement is made under and shall be construed in accordance with the laws of the State of
Ohio, USA, without reference to conflict of laws principles and Associate Dealer consents to the exclusive jurisdiction
of the courts located in Cuyahoga County, in the State of Ohio or the United States District Court for the Northern
District of Ohio, Eastern Division [Cleveland]. The United Nations Convention on Contracts for the International Sale of
Goods will not apply to this Agreement or to the transactions processed under this Agreement.
14.6 Modifications. This Agreement may only be modified by written agreement and executed by an authorized
representative of each party.
14.7 Waiver. Neither party's failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or
forfeiture of any such rights.
14.8 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible
by strike, fire, flood, governmental acts or orders or restrictions, acts or war or terrorism or other similar reason
where failure to perform is beyond the control and not caused by the negligence of the non-performing party, provided
that the non-performing party gives prompt notice of such conditions to the other party and makes all reasonable efforts
to perform.
14.9 Export Control. Each party agrees to comply with all United States laws and regulations, which may govern the
export of Product(s) and Software abroad, including the Export Administration Act of 1979, as amended, any successor
legislation, and the Export Administration Regulations issued by the Department of Commerce.
14.10 Entire Agreement. This document and the exhibits attached hereto represent the entire agreement between the
parties as to the matters set forth herein and supersede all prior agreements, discussions, representations, or
understandings between them.
14.11 Exhibits. Each of the following Exhibits referred to in this section are incorporated in full in this Agreement
wherever reference to it is made:
EXHIBIT A: PRODUCTS AND PRICES;
Capitalized terms in the Exhibits have the same meanings as in this Agreement unless the context clearly otherwise
requires.
14.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this Dealer Agreement as of the date first written above.
FOTO-FONE, INC.
_______________________ By: ______________________________
Witness [insert name of officer], its duly authorized [insert title]
DEALER:
[insert Dealer's legal name].
_______________________ By: ______________________________
Witness [insert name of officer], its duly authorized [insert title]
EXHIBIT A
PRODUCTS AND PRICES
A. Products. Dealer shall offer for sale to its customers the Products listed in the following table.
Bizfōn Switch 680
$__________
$1,899.00
Bizfōn BT3 Phone
$__________
$199.00
Bizfōn BT2 Phone
$__________
$99.00
B. Prices. Dealer shall pay to Bizfōn for each Product the prices for the Products listed under the " Dealer Price"
column of the chart in Section A above. Dealer shall charge its customers for each Product the prices for the products
under the "MSRP" column of the chart in Section A above.
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