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States Motor Products Indirect Authorized Dealer Agreement
AGREEMENT is made as of the day of its execution by and between Cardo
Systems, Inc., a corporation with principal offices at 100 High Tower
Blvd., Suite 101, Pittsburgh, PA 15205 ("Cardo") and the
Dealer which has electronically executed this Agreement ("Dealer").
This Agreement describes the rights and obligations of Dealer and
Cardo with respect to the appointment of Dealer as an authorized
Cardo dealer of the Products. Dealer and Cardo each acknowledge that
the following terms and conditions are essential to maintaining the
viability of Cardo distribution network for the Products and insuring
the success of its dealers. Cardo and Dealer are each sometimes
referenced herein as a "party" or collectively as the
"parties." The parties agree as follows:
The ("Portal") shall mean the Cardo Certified Professional
Program and its content located at:
from time to time within the sole discretion of Cardo.
A ("Distributor") is a then current party to a Cardo
Authorized Distributor Agreement.
The (“Product(s)”) shall mean the product(s) set forth
The United States, consisting of the fifty states together with the
District of Columbia (but excluding any of its territories) shall be
the territory of this Agreement (the “Territory”).
An (“End-User”) is any purchaser of the Product(s) from
the Dealer who is the ultimate consumer for whom the Product is
designed and who does not intend to resell the Product to a third
For the term of this Agreement, Cardo appoints the Dealer through
its Distributor agent as a non-exclusive authorized reseller of the
Products to End-Users within the Territory at the locations set
forth in the Portal as the Dealer's Primary and Secondary
Advertising and Sales.
Without the parties' separate execution of the Authorized Internet
Addendum, the Dealer is expressly prohibited from advertising for
online resale and/or selling the Products on the Internet.
shall not transship the Products (i.e. sell to anyone other than
an End-User); specifically, it shall not sell or transfer any of
the Products to any person, unauthorized dealer, or any other
entity for resale. Dealer shall not sell or offer for sale
any product bearing a trademark, name or designation associated
with Cardo, which Dealer purchased or obtained from a source other
than directly from Distributor. Dealer shall not obscure or alter
in any fashion the serial number on any Product or its packaging.
Should the Dealer transship or obscure or alter the serial number
on any Product(s), it shall be deemed a material breach of this
Agreement, allowing Cardo to terminate upon notice.
For each occasion that Dealer breaches Section 2 or 3 of this
Agreement by engaging in the unauthorized sale of Products, Dealer
agrees to pay Cardo, as liquidated damages, the greater of the
following amounts: (i) the costs and fees associated with Cardo
investigation regarding the Dealer's unauthorized sales; or (ii)
five times (5X) the MSRP of the Product(s) per unit of Product.
The parties agree that these damages are not punitive and are
intended to be a reasonable estimate of the damages suffered by
the event of non-compliance. The foregoing damages shall be in
addition to any other remedies Cardo
have in law or in equity.
a. Dealer may only
sell and advertise for sale the Products within the Territory.
Cardo hereby expressly prohibits the Dealer from soliciting or
consummating sales outside the Territory. Should the Dealer breach
this section of this Agreement, such breach shall be considered a
material breach allowing Cardo to terminate this Agreement upon
For each occasion that Dealer breaches Section 4 of this Agreement
by engaging in the unauthorized sale of Products to any person or
entity outside the Territory, Dealer agrees to pay Cardo, as
liquidated damages, the greater of the following amounts: (i) the
costs and fees associated with Cardo investigation regarding the
Dealer's unauthorized sales; or (ii) five times (5X) the MSRP of the
Product(s) per unit of Product. The parties agree that these
damages are not punitive and are intended to be a reasonable
estimate of the damages suffered by Cardo
the event of non-compliance. The foregoing damages shall be in
addition to any other remedies Cardo
have in law or in equity.
intellectual property rights arising out of or relating to the
Products and this Agreement, including all trademarks, trade names,
service marks, logos, trade dress, copyrights, patents, and other
intellectual property rights (together, the “Intellectual
Property”), are and shall remain the exclusive property of
Cardo. For the avoidance of doubt, Cardo shall be the sole owner of
any Product marketing materials developed by either party hereunder,
including all Intellectual Property rights therein. Dealer hereby
assigns, and agrees to assign to Cardo, any and all Intellectual
Property Rights arising out of or relating to the Products,
developments relating to the Products and this Agreement. However,
nothing in this paragraph grants Cardo rights in the Dealer's
b. Cardo grants
Dealer a limited, non-exclusive, non-assignable, non-sublicensable
license to use Cardo Intellectual Property only in a lawful manner
and in connection with the advertising, display, promotion and sale
of Products in accordance with the terms of this Agreement. This
license shall automatically terminate upon termination or expiration
of this Agreement for any reason, and Dealer shall immediately
discontinue the use of all Intellectual Property, and thereafter
shall not use Intellectual Property in connection with its business,
nor use any other name, trademark, design, title, or expression so
nearly resembling Intellectual Property as would be likely to lead
to confusion or uncertainty or to deceive the public.
c. Dealer shall
promptly inform Cardo of any action or conduct of any person which
may infringe upon any of Cardo Intellectual Property rights. Cardo
shall have the sole discretion as to whether to take legal action
against any such infringement and any damages or other monies
recovered on account of such infringement, whether by judgment,
settlement or otherwise, shall belong exclusively to Cardo. Dealer
shall cooperate fully with Cardo in connection with any legal or
other action taken by Cardo in connection with any such
Dealer shall comply with the additional conditions regarding the
use of Cardo Intellectual Property described in Schedule
headed "Using Cardo Intellectual Property."
During the term of this Agreement, Dealer shall use its best
promote, demonstrate, market, and sell the Products;
b. maintain and
stock: (i) an adequate supply of the Products to satisfy the
demand of its customers and (ii) a representative sample of all
qualified personnel with knowledge of the specifications, features
and use of the Products;
d. provide quality
post-sale support for all End-Users that purchase Products;
e. preserve and
enhance the reputation and goodwill of Cardo and the Products and
avoid any illegal or unethical actions, including without limitation
"bait and switch" practices;
f. only purchase
Products from Cardo or Cardo Authorized Distributors; and
g. conduct and
maintain at all times its operation in compliance with all
applicable federal and state laws and regulations, FTC consent
orders, county and city ordinances and regulations and any other
applicable law, regulation or ordinance. Dealer agrees not to
engage in any unfair trade practices.
Unless otherwise terminated as set forth in this Agreement, this
Agreement shall expire on December 31, 2013 and shall automatically
renew for successive one-year periods.
This Agreement may be terminated as follows:
a. by Cardo
immediately upon written notice to Dealer in the event of a breach
by Dealer of Sections 1, 2, 3, 4, 5, or 6 of this Agreement; and
Section 10 hereof, by Cardo or Dealer, without cause or liability,
upon thirty (30) days’ prior written notice to the other
Materials; Promotional Funds.
During the term of this Agreement, Cardo may make available to
Dealer such promotional funds and advertising, display, and
promotional materials for the Products as Cardo deems appropriate in
its sole and absolute discretion. Dealer agrees that any
promotional funds received by Dealer under any Cardo promotional
funds program shall be used by Dealer solely for the promotion of
the Products and for no other purpose. Dealer agrees to maintain
and make available to Cardo reasonably detailed documentation and
records of Dealer’s use of any such promotional funds as
required by Cardo’s terms and conditions governing any such
& Obligations Upon Expiration/Termination.
Neither Cardo nor Dealer shall be liable to the other by reason of
the expiration or termination of this Agreement, including, without
limitation, liability based on tort, compensation, reimbursement, or
damages for present or prospective profits, or on account of
investments, expenditures or commitments made by Dealer, or as a
result of the establishment, development or maintenance of the
goodwill of Cardo, the Dealer or the Products. Any termination or
expiration of this Agreement shall not relieve either party of any
outstanding obligation or liability for Products sold or for any
other matter or reason that accrued prior to the termination or
expiration. Upon expiration or termination of this Agreement,
Dealer shall immediately cease to represent itself as an Authorized
Cardo Products Dealer, cease all use of the Cardo Intellectual
Property, and return to Cardo all advertising, promotional, display
and other materials that have been furnished to Dealer by Cardo.
Each party hereby represents, warrants, and covenants to the other
that (i) it is a corporation duly incorporated and in good standing
under the laws of its jurisdiction of incorporation; (ii) it has the
full power and authority to enter into and perform this Agreement;
(iii) this Agreement’s execution and delivery, and the party’s
performance of its obligations under this Agreement have been fully
authorized by all necessary corporate action and do not require any
consents or filings (including with any governmental authority)
other than those consents or filings that the party has obtained or
made before the effective date hereof; (iv) this Agreement does not
conflict with any other agreement or obligation of the party; and
(v) this Agreement is a legal, valid, and binding obligation of the
Party, enforceable against the Party in accordance with its terms.
Dealer shall indemnify, defend (if requested) and hold harmless
Cardo, its affiliates, officers, directors, employees, agents,
successors and assigns (“Indemnified Parties”) from and
against any and all losses, damages, costs, penalties, fines and
claims (including attorney’s fees and costs of settlement),
whether private, state or federal, related to or arising out of (i)
Dealer’s modification to the Products, (ii) Dealer’s
unauthorized advertising and marketing activities, (iii) the acts or
omissions of Dealer and its employees, representatives, directors,
officers, and independent contractors, (iv) all breaches or claimed
breaches of Dealer’s obligations, representations, warranties,
or covenants under this Agreement, and (v) any other breach by
Dealer under this Agreement. Either party will promptly notify the
other party upon learning of any claim, action or proceeding arising
out of or relating to a breach subject to this indemnity, provided
that Cardo delay or failure to do so will not relieve Dealer of any
of its obligations under this paragraph. For any claim defended by
Dealer, Cardo may choose to be separately represented at its own
expense. No settlement intended to admit liability or bind any
Indemnified Party is valid or final without the Indemnified Party’s
a. Except as
otherwise set forth in Section 13(b) or this Agreement, this
Agreement may be amended, waived, or modified only by a written
instrument signed by an authorized officer of both parties stating
specifically that it is an amendment, waiver, or modification of
this Agreement. No waiver of any provision at any particular time
shall be deemed a permanent waiver of such provision, or a waiver of
any other provision of this Agreement. Failure to enforce a
provision shall not be deemed a waiver.
b. Cardo may
amend any Schedule in this Agreement or any information contained in
the Portal (including the Products available to Dealer) by providing
notice to the Dealer, and any such amendment shall become effective
immediately upon delivery of such notice.
This Agreement, its Schedules, and the Dealer information on the
Portal constitutes the entire Agreement between Cardo and Dealer
with regard to the subject matter hereof, and hereby cancels and
supersedes any and all prior and contemporaneous agreements,
commitments, representations, warranties, and discussions between
the parties with respect thereto.
Changes by Cardo.
Cardo reserves the right at any time to discontinue the production,
sale, allocation or distribution of any of its Products, to change
the design of its Products and any parts thereof, and to change its
service, warranty, price, or other policies, without advance notice
or obligation to the Dealer of any kind whatsoever. Dealer agrees
that it shall have no claim against Cardo or any of its agents or
affiliates for failure to furnish such Products, whether or not such
Products are of a model, design or type previously sold.
Dealer acknowledges that Dealer has been informed of Cardo
Unilateral Policy (available on the Portal), as it applies to the
advertisement for sale of Cardo Products from Dealers to End-Users
in the United States. There is no agreement, express or implied,
between Cardo and Dealer with respect to the advertised or resale
pricing of Products. If any director, officer, employee,
representative, or other agent of Cardo tries to coerce Dealer to
agree to the price at which Dealer advertises or resells Cardo
Products, Dealer shall promptly notify Cardo Policy Coordinator at
This Agreement shall be deemed to have been entered into and fully
performed in the Commonwealth of Pennsylvania and shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania without regard for the conflicts of laws rules thereof.
Dealer agrees that all controversies, disputes and claims arising
out of this Agreement shall be adjudicated exclusively by a court of
competent jurisdiction within Allegheny County, Commonwealth of
Pennsylvania or the United States District Court in the Western
District of Pennsylvania, except that any judgment in any such
action may be enforced in other jurisdictions by suit or in any
other permitted manner. Dealer irrevocably consents to the
jurisdiction and venue of the state and federal courts of
Pennsylvania and waives any rights to seek a transfer of venue for
any reason or to claim that the forum is inconvenient.
Neither Cardo nor Dealer shall be liable to the other for any
indirect, incidental, consequential or special damages of any kind
(including lost profits or loss of use).
Dealer agrees to keep strictly confidential the provisions of this
Agreement and any other information relating to Cardo Intellectual
Property, to the pricing of the Products, or any other information
whether disclosed to Dealer by Cardo orally or in writing which
should reasonably be understood to be confidential. This obligation
of confidentiality shall be in effect from the date Dealer executes
this Agreement and shall continue for a period of five (5) years
after the expiration or termination hereof, except that such
obligation shall not apply to information that is publicly available
through no fault of Dealer or that must be disclosed under operation
Other than its consumer warranty, Cardo has made no warranty to
Dealer and specifically disclaims any express or implied, including
warranty for a particular purpose, warranty of non-infringement, and
warranty of merchantability.
Dealer and Cardo are independent contractors, and nothing contained
in this Agreement shall be deemed to make Dealer an agent,
representative, employee, partner, joint venturer, franchisee, or
affiliate of Cardo. Dealer and Cardo each acknowledge and agree
that Dealer is not making any payment to Cardo for the right to
resell Cardo products and is not a franchisee within the meaning of
any applicable state or federal franchise act or other similar
statute or rule of law or equity.
This Agreement shall not be transferred or assigned by Dealer, in
whole or in part, nor shall Dealer delegate any of its rights or
obligations hereunder without the prior written consent of Cardo.
Any change in ownership of Dealer whether through the sale of its
stock, a merger, reorganization, or sale of its assets, in a single
transaction or a series of related transactions, shall be deemed a
transfer entitling Cardo to terminate this Agreement upon ten (10)
Dealer acknowledges that its breach or threatened breach of
Sections 2 (Internet Advertising and Sales), 3 (Transshipping), 4
(Geographic Sales Boundary), 5 (Intellectual Property), and 19
(Confidentiality) would result in irreparable injury to Cardo and
that, in addition to its other remedies at equity and law, Cardo
will be entitled to injunctive relief to restrain any such
threatened or continuing breach, without being required to post bond
or other security.
Each party hereto acknowledges that it has had ample opportunity to
review and comment on this Agreement. This Agreement shall be read
and interpreted according to its plain meaning and an ambiguity
shall not be construed against either party. It is expressly agreed
by the parties that the judicial rule of construction that a
document should be more strictly construed against the draftsperson
thereof shall not
apply to any provision of this Agreement. If any provision (or part
thereof) of this Agreement shall be deemed invalid or unenforceable,
the remainder of the provisions of this Agreement shall continue in
full force and effect to the maximum extent consistent with the
intent of the parties.
All provisions that by their nature should survive the termination
or expiration of this Agreement, including but not limited to
Sections 3(a), 4(a), 6(f), and 19, will survive termination or
expiration of this Agreement.
Notices under this Agreement shall be in writing and shall be
deemed given on the day of any confirmed telecopy transmission or
three (3) days after mailing. Notices to Dealer and Cardo shall be
sent to the respective addresses first listed atop this Agreement
unless a subsequent address is designated in writing by Dealer or
Cardo. All notices to Cardo shall be sent to the attention of its
In accordance with the federal Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. Section
(“ESIGN”) and the California Uniform Electronic
Civ. Code §§ 1633.1 – 1633.17
parties hereby agree to execute this Agreement using electronic
means including the use of electronic signatures by the parties,
which the parties agree shall have the full force and legal effect
as if the electronic signatures were traditional hand-written
signatures. The Dealer acknowledges that it has the ability to
retain this Agreement either by printing or saving it.
signatory agrees that he or she has been authorized and has the
authority to enter into the Agreement with an electronic signature
on behalf of the applicable party and intends to sign this Agreement
by applying his or her electronic signature as indicated.
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Cardo Intellectual Property
a Cardo Authorized Dealer, you will benefit from the fame and
inherent value signified by the Cardo brand name and our various
product trademarks. In addition to being under agreement to use
Cardo trademarks properly, it is in your best interest to assist in
protecting the Cardo marks by using them properly in all advertising
and promotional materials.
following guidelines must be followed when using all trademarks
owned by Cardo. These guidelines are in addition to those provided
for print advertising of a particular product:
shall not use or register any Internet domain name containing any
Intellectual Property, and shall submit to Cardo for approval in
advance true and complete copies of all World Wide Web pages which
contain or refer to any Intellectual Property, and shall not use
such Intellectual Property on its website without such prior
shall not, without express written permission from Cardo purchase
Cardo Intellectual Property through Google's and Yahoo's Adwords
programs and/or other web service providers' similar programs.
Cardo trademarks must be reproduced exactly from camera ready
artwork provided by Cardo.
the Cardo logo appears on the Dealer’s stationery or business
cards, the words “Certified Professional” must follow
it. This can be accomplished by using the “Cardo Certified
Professional” artwork provided by Cardo.
must be no confusion with which entity the customer is dealing.
The Dealer’s name must be the most prominent name on the
page. The Cardo logo may not be the only source identifier on the
page. The Cardo logo trademark may not appear at the top of the
Cardo logo trademark must not be used in combination with another
company mark in such a manner that the marks appear to be joined or
associated in any way. Ample space must appear between the two
marks to distinguish them as separate entities.
Cardo logo trademark or any Cardo product mark may not be used in a
way that will dilute or diminish its value to Cardo, such as on
others’ goods or in any non-approved form.
use of any Cardo mark on a web page must adhere to these
superscript indicating a registered trademark (®) or trademark
(™) or service mark (SM) symbol must appear next to all marks
in all printed literature. It is critical to adhere to these
regulations, as this helps ensure proper legal protection and helps
prevent infringement of these legal rights. Please check with your
Cardo representative for proper trademark superscript designation.
registered trademark (®) or trademark (™) or service mark
(SM) symbol must appear as a superscript following the appropriate
mark on the first most prominent use on each page of a piece. All
marks must be capitalized, italicized, or bolded or otherwise
treated with prominence.
use of a Cardo trademark which is not addressed in the guidelines
set forth herein, must be approved by Cardo prior to its use.