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Motor Products Indirect Dealer Agreement


Cardo Systems, Inc.


United States Motor Products Indirect Authorized Dealer Agreement


THIS 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:


Definitions.


a. Portal: The ("Portal") shall mean the Cardo Certified Professional Program and its content located at: http://reseller.cardosystems.com amended from time to time within the sole discretion of Cardo.


b. Distributor: A ("Distributor") is a then current party to a Cardo Authorized Distributor Agreement.


c. Products: The (“Product(s)”) shall mean the product(s) set forth in Schedule A.


d. Territory: 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”).


e. End-User: 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 party.


1. Appointment. 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 Locations. 


2. Internet 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.


3. Transshipping.


    1. Dealer 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.


    1. Liquidated Damages. 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 Cardo in the event of non-compliance. The foregoing damages shall be in addition to any other remedies Cardo may have in law or in equity.


4. Geographic Sales Boundary.


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 notice.


b. Liquidated Damages. 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 in the event of non-compliance. The foregoing damages shall be in addition to any other remedies Cardo may have in law or in equity.


5. Intellectual Property.

a. All 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 Intellectual Property.


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 infringement.


d. Dealer shall comply with the additional conditions regarding the use of Cardo Intellectual Property described in Schedule B headed "Using Cardo Intellectual Property."


6. Dealer Obligations. During the term of this Agreement, Dealer shall use its best efforts to:


a. display, 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 Products;


c. maintain 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.


7. Term. 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.


8. Termination. 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


b. notwithstanding Section 10 hereof, by Cardo or Dealer, without cause or liability, upon thirty (30) days’ prior written notice to the other party.


9. Promotional 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 programs.


10. Liability & 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.


11. Representations & Warranties. 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.


12. Indemnification. 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 written consent.


13. Amendments & Waivers.


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.


14. Entire Agreement. 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.


15. Product 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.


16. Unilateral Policy. 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 UMAPCoordinator@CardoSystems.com.


17. Law and Forum. 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.


18. Limitation on Liability. 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).


19. Confidentiality. 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 of law.

20. No Warranty. 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.


21. Relationship. 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.


22. Assignment. 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) days’ notice.


23. Injunctive Relief. 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.


24. Contract Interpretation. 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.

25. Survival. 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.


26. Notices. 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 Legal Department.


27. Electronic Execution. In accordance with the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq. (“ESIGN”) and the California Uniform Electronic Transactions Act, Cal. Civ. Code §§ 1633.1 – 1633.17 (“UETA”), the 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.

Each 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.



SCHEDULE A


Products


scala rider


scala rider G9

scala rider G9 PowerSet

Audio & Microphone Kit scala rider G9 USA

Audio & Microphone Kit scala rider G9 with removable speakers USA

Audio & Microphone Kit scala rider G9half helmet USA


scala rider Q3 MultiSet

scala rider Q3 Single

scala rider Q1 TeamSet


scala rider G4

scala rider G4 PowerSet

scala rider G4 PowerSet for Snowmobiles

scala rider TeamSet Pro

scala rider Q2 Pro

scala rider Q2 MultiSet Pro


Accessories





SCHEDULE B


Using Cardo Intellectual Property


As 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.


The 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:


  • Dealer 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 approval.


  • Dealer 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.


  • The Cardo trademarks must be reproduced exactly from camera ready artwork provided by Cardo.


  • If 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.


  • There 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 page.


  • 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.


  • The 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.


  • Any use of any Cardo mark on a web page must adhere to these guidelines.


  • A 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.


  • The 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.


  • Any use of a Cardo trademark which is not addressed in the guidelines set forth herein, must be approved by Cardo prior to its use.



~#4823-6925-3902 v.3~

 
     

 
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