This Exclusive Dealership
Agreement ("Agreement"), made and
effective this _______________________,
by and between Clark Novelty Sign Sales, Inc., a Ohio
corporation
("Manufacturer") and
______________________________
doing business as
___________________________"
("Dealer").
Manufacturer desires
to appoint Dealer, and Dealer desires to accept
appointment, as
an exclusive distributor of Manufacturer's products
within a defined
area as set forth herein.
NOW, THEREFORE, in
consideration
of the mutual agreements promises set forth herein,
the parties
agree as follows:
1.
Rights Granted.
Manufacturer hereby
grants to Dealer the exclusive right, on the terms and
conditions
contained herein, to purchase, inventory, promote
and rent "Manufacturer's
Products" (as defined below) within the following
area (the
"Territory"): Refer to
Designated Dealership Territory Sheet.
The Designated Dealership Territory fee shall be renewed every 5 (five) years from the date of this agreement.Nothing herein shall
prevent or prohibit Manufacturer from selling any of
Manufacturer's
Products directly to the following
customers:
In Territories other
than the territory described.
2.
Products.
As
used in this Agreement,
the term "Manufacturer's Products" shall
mean the products,
related service parts and accessories manufactured
and/or sold
by Manufacturer as follows:
Novelty Sign Displays
and necessary hardware needed for such
displays.
Novelty Sign Manual
Miscellaneous Business
Supplies.
3.
Terms of Sale.
All
sales of Manufacturer's
Products to Dealer shall be made pursuant to this
Agreement at
such prices and on such terms as Manufacturer shall
establish
from time to time on at least thirty (30) days notice.
Manufacturer
agrees to properly pack all items for shipment. Risk of
loss due
to damage or destruction of Manufacturer's Products
shall be borne
by Dealer after delivery to the carrier for shipment.
Manufacturer
will select the shipper unless Dealer requests a
reasonable alternative.
All orders are subject to acceptance by Manufacturer.
Except as
otherwise expressly agreed by Manufacturer in
advance, this Agreement
shall control all aspects of the dealings between
Manufacturer
and Dealer with respect to the Manufacturer's
Products and any
additional or different terms in any Dealer order are
hereby rejected.
4.
Marketing Policies.
Dealer will at all times
maintain adequate inventories of Manufacturer's
Products and will
promote vigorously and effectively the rental of
Manufacturer's
Products.
5.
Distributor's
General Duties.
Dealer agrees not to
engage in the distribution promotion, marketing or
sale of any
goods or products that compete or conflict with
Manufacturer's
Products. Dealer agrees to supply to Manufacturer a
list of items
handled by Dealer following Manufacturer's request to
ensure that
no conflict exists.
6.
Advertising
and Renting Policies.
Nothing herein shall
prevent Dealer from independently advertising and
marketing the
Manufacturer's Products within the Territory, provided
the form
and content of the advertising or marketing materials
are consistent
with community standards. The Dealer agrees to
refrain from operating
said business or marketing Manufacturer's Products in
any way
that can be consider lewd, cruel, illegal, or in conflict
with
Manufacturer's interests.
7.
Product Warranty
Policies.
In
the event that any
of Manufacturer's Products are proved to
Manufacturer's satisfaction
to have been defective at time of sale to Dealer said
Products
would be replaced. MANUFACTURER MAKES NO
WARRANTY TO DEALER WITH
RESPECT TO THE PRODUCTS, EITHER EXPRESS
OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR
PURPOSE.
8.
Indemnification.
Dealer agrees to protect
Manufacturer and hold Manufacturer harmless from
any loss or claim
arising out of the negligence of Dealer, Dealer's
agents, employees
or representatives in the installation, use, rental or
servicing
of Manufacturer's Products or arising out of any
representation
or warranty made by Dealer, its agents, employees or
representations
with respect to Manufacturer's Products that exceeds
Manufacturer's
limited warranty.
9.
Order Processing
and Returns.
A.
Manufacturer will
employ its best efforts to fill Dealer's orders promptly
on acceptance,
but reserves the right to allot available inventories
among Dealers
at its discretion.
B.
Except for Manufacturer's
products that are defective at the time of sale to
Dealer, Manufacturer
shall not be obligated to accept any of Manufacturer's
Products
that are returned. In the event such returns are
accepted Manufacturer
may impose a reasonable restocking
charge.
10. Financial
Policies.
Dealer acknowledges
the importance to Manufacturer of Dealer's sound
financial operation
and Dealer expressly agrees that it will:
A. Pay promptly all
amounts due Manufacturer in accordance with terms
of sale extended
by Manufacturer from time to
time;
- Furnish Manufacturer
with financial statements in such form as
Manufacturer may reasonably
require from time to time for credit purposes;
and
- Furnish, at Manufacturer's
request, a detailed reconciliation of Manufacturer's
statements
of account with Dealer's records, listing all
differences, and
showing net amount Dealer acknowledges to be
due Manufacturer.
In
addition to any other
right or remedy to which Manufacturer may be entitled,
shipments
may be suspended at Manufacturer's discretion in the
event that
Dealer fails to promptly and faithfully discharge each
and every
obligation in this Section.
11. Use of Manufacturer's
Name, Copyright Materials, and Business
Practices.
Dealer will not use,
authorize or permit the use of, the name "CNSS,
Inc and/or
A-Nete-Idea Novelty Sign Rental" or any other
trademark or
trade name, copyright material, or disclose any
business practices
owned by Manufacturer as part of its firm, corporate or
business
name in any way. Dealer shall not contest the right of
Manufacturer
to exclusive use of any trademark or trade name,
copyright material,
or disclose any business practices used or claimed by
Manufacturer.
Dealer may, subject to Manufacturer's policies
regarding reproduction
of same, utilize Manufacturer's name, trademarks or
logos copyright
material, or disclose any business practices in
advertising on
stationery and business cards. All exchanges of
copyrighted materials,
and business practices between Dealer and
Manufacture shall remain
private and confidential.
12. Relationship
of the Parties.
The relationship between
Manufacturer and Dealer is that of vendor and
vendee. Dealer,
its agents and employees shall, under no
circumstances, be deemed
employees, agents or representatives of
Manufacturer. Dealer will
not modify any of Manufacturer's Products without
written permission
from Manufacturer. Neither Dealer nor Manufacturer
shall have
any right to enter into any contract or commitment in
the name
of, or on behalf of the other, or to bind the other in
any respect
whatsoever.
13. Term and
Termination.
Unless earlier terminated
as provided below, the term of this Agreement shall
commence _______________________ and
shall continue until Date
Unspecified.
At the end of
the term, the
Agreement shall continue until terminated by either
party on at
least
sixty (60) days
prior notice.
A. Manufacturer may
terminate at any time by written notice given to
Dealer not less
than ninety (90) days prior to the effective date of
such notice
in the event Manufacturer decides to terminate all
outstanding
Dealer agreements for Manufacturer's Products and
to offer a
new or amended form of distributor
agreement.
B. Manufacturer may
terminate this Agreement upon notice to Dealer,
upon any of the
following events: (1) failure of Dealer to fulfill or
perform
any one of the duties,
obligations
Or
responsibilities
of Dealer in this Agreement; (2) any assignment or
attempted assignment
by Dealer of any interest in this agreement or
delegation of Dealer
obligations without Manufacturer's written consent; (3)
any sale,
transfer or relinquishment, voluntary or involuntary, by
operation
of law or otherwise, of any material interest in the
direct or
indirect ownership or any change in the management
of Dealer;
(4) failure of Dealer for any reason to function in the
ordinary
course of business; (5) conviction in a court of
competent jurisdiction
of Dealer, or a manager, partner, principal officer or
major stockholder
of Dealer for any violation of law tending, in
Manufacturer's
opinion, to affect adversely the operation or business
of Dealer
or the good name, goodwill, or reputation of
Manufacturer, products
of Manufacturer, or Dealer; or (6) submission by
Dealer to Manufacturer
of false or fraudulent reports or statements, including,
without
limitation, claims for any refund, credit, rebate,
incentive,
allowance, discount, reimbursement or other payment
by Manufacturer.
14. Obligations
on Termination.
On termination of this
Agreement, Dealer shall cease to be an authorized
distributor
of Manufacturer and:
A. All amounts owing
by Dealer to Manufacturer shall, notwithstanding
prior terms
of sale, become immediately due and
payable
B. All unshipped orders
shall be canceled without liability of either party to
the other;
C. Dealer will resell
and deliver to Manufacturer on demand, free and
clear of liens
and encumbrances, such of Manufacturer's Products
and materials
bearing Manufacturer's name as Manufacturer shall
elect to repurchase,
at a mutually agree price, but not in excess of
Manufacturer's
current price to distributors for such products and
materials,
provided that Manufacturer shall not be obligated to
pay Dealer
for any item originally provided free of charge;
and
D. Neither party shall
be liable to the other because of such termination for
compensation,
reimbursement or damages on account of the loss of
prospective
profits or anticipated sales, or on account of
expenditures,
investments, lease or commitments in connection
with the business
or goodwill of Manufacturer or Dealer or for any other
reason
whatsoever growing out of such
termination.
15. Use of Name
and or Copyrighted Material
Prohibited.
On termination of this
Agreement, Dealer will remove and not thereafter use
any sign
containing any trade name, logo or trademark of
Manufacturer including,
but not limited to, "CNSS, Inc. and/or
A-Nete-Idea Novelty
Sign Rental", and will immediately
destroy all signs, products, stationery,
advertising matter and other printed matter in its
possession
or under its control containing such name, or any of
Manufacturer's
copyrights, trademarks, trade names or logos. Dealer will not at
any time
after such termination use or permit any such
trademark, trade
name or logo to be used in any manner in connection
with any business
conducted by it or in which it may have an interest, or
otherwise
whatsoever as descriptive of or referring to anything
other than
merchandise or products of Manufacturer. Regardless
of the cause
of termination, Dealer will immediately take all
appropriate steps
to remove and cancel its listings in telephone books,
and other
directories, and public records, or elsewhere that
contains the
Manufacturer's name, logo or trademark. If Dealer fails
to obtain
such removals or cancellations promptly, Manufacturer
may make
application for such removals or cancellations on
behalf of Dealer
and in Dealer's name and in such event Dealer will
render every
assistance.
16.
Acknowledgments.
Each party acknowledges
that no representation or statement, and no
understanding or agreement,
has been made, or exists, and that in entering into
this Agreement
each party has not relied on anything done or said or
on any presumption
in fact or in law, (1) with respect to this Agreement, or
to the
duration, termination or renewal of this Agreement, or
with respect
to the relationship between the parties, other than as
expressly
set forth in this Agreement; or (2) that in any way
tends to change
or modify the terms, or any of them, of this Agreement
or to prevent
this Agreement becoming effective; or (3) that in any
way affects
or relates to the subject matter hereof. Dealer also
acknowledges
that the terms and conditions of this Agreement, and
each of them,
are reasonable and fair and equitable.
17. Final
Agreement.
This Agreement terminates
and supersedes all prior understandings or
agreements on the subject
matter hereof. Only a further writing that is duly
executed by
both parties may modify this Agreement.
18.
Assignment.
Dealer may assign neither
this Agreement nor any interest in this Agreement
without the
prior express written approval of Manufacturer, which
may be withheld
by Manufacturer at Manufacturer's absolute
discretion.
19. No Implied
Waivers.
Except as expressly
provided in this Agreement, waiver by either party, or
failure
by either party to claim default, of any provision of this
Agreement
shall not be a waiver of any default or subsequent
default.
20.
Notices.
Any notice required
by this Agreement or given in connection with it, shall
be in
writing and shall be given to the appropriate party by
personal
delivery or by certified mail; postage prepaid, or
recognized
overnight delivery services.
If
to Manufacturer:
Clark Novelty
Sign Sales, Inc.
3018 Brush
Place NE
Canton, OH
44705
If to
Dealer:
___________________________
______
___________________________
______
___________________________
______
21. Governing
Law.
This Agreement shall
be construed and enforced in accordance with the
laws of the state
of
Ohio.
22.
Severability.
If
any term of this
Agreement is held by a court of competent jurisdiction
to be invalid
or unenforceable, then this Agreement, including all of
the remaining
terms, will remain in full force and effect as if such
invalid
or unenforceable term had never been
included.
24.
Headings.
Headings used in this
Agreement are provided for convenience only and
shall not be used
to construe meaning or intent.
IN
WITNESS WHEREOF,
the parties have executed this Agreement as of the
date first
above written.
Clark Novelty Sign Sales,
Inc.
By:
_______________________________
Janita Clark
President
___________________________
________
Dealer
___________________________
________
Address
___________________________
________
City, State,
Zip
___________________________
________
Phone
___________________________
_______
Date
