Raymarine, Inc.
Distributor Agreement (USA)
This Distributor Agreement (Agreement) is between Raymarine, Inc., a Delaware corporation, with offices at 9 Townsend West,
Nashua NH 03063 (“Raymarine”) and the distributor, dealer, integrator, original equipment manufacturer (OEM) and/or reseller
(hereinafter, “Distributor”) identified below. Raymarine, a FLIR Commercial Systems, Inc. (“FLIR”) company, manufactures and
sells commercial products for the leisure marine market and FLIR manufactures and sells thermal imaging systems and other
commercial products for the personal vision and leisure marine markets. Distributor is experienced in the marketing and sale
of commercial products in one or more of these markets. Distributor wishes to purchase products from Raymarine for resale to
U.S. customers, on the terms and subject to the conditions of this Agreement.
Effective Date
Distributor Name:
(“Distributor”)
Place of Incorporation:
Mailing Address:
Distributor
Orders from Distributor will come from one or more addresses in addition to the address above.
URL:
Contact Name:
Phone (office):
Title:
Phone (cell):
Email Address:
Phone (fax):
Distributor
Contact
Entire
Agreement
This Agreement is comprised exclusively of:
(1) Signature Page (page 1)
(2) Terms and Conditions (pages 2 through end)
(3) Schedule A
(4) Price Lists, Marketing Programs, Policy Statements, and all other documents referenced in
Schedule A (as applicable)
DISTRIBUTOR ACKNOWLEDGES THAT IT HAS READ AND AGREES TO BE BOUND BY THIS ENTIRE AGREEMENT AS
OF THE EFFECTIVE DATE AND THROUGHOUT THE TERM OF THIS AGREEMENT AND THAT ALL ITEMS THAT
COMPRISE THIS AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE.
RAYMARINE, INC.
DISTRIBUTOR
By:
By:
Name:
Name:
Title:
Title:
Date:
Date:
FLIR USE ONLY – Export Screening Verification
Name:
Date:
Include a print-out of screening results when submitting for signature. Contact Global Trade Compliance (GTC) with questions.
Page 1 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
1.
DEFINITIONS.
1.1
“Field” means all purchasers of Systems for one or
more of the applications specified in Schedule A.
1.2
“Systems” means the products specified in Schedule A
of this Agreement in the “Systems and Pricing” Section and
any related documents, accessories, and services.
1.3
“Territory” means the United States, including Alaska
and Hawaii, but excluding U.S. possessions.
1.4
“Term” means the period after the Effective Date
extending to the date on which this Agreement is terminated or
terminates according to its terms.
2.
RESPONSIBILITIES OF DISTRIBUTOR.
2.1
Appointment. Subject to Distributor’s compliance with
all of the terms and conditions of this Agreement, Raymarine
hereby appoints Distributor as a non-exclusive authorized
Distributor for Systems in the Territory and Field. Distributor
may purchase Systems from Raymarine for resale to
customers in the Territory and Field only. It is an express
condition of this Agreement that Distributor shall not sell any
Systems: (i) to purchasers who are buying them for resale as a
stand-alone product; and (ii) for import into Cuba, North Korea,
Iran, Syria, and Sudan, irrespective of the scope of
Distributor’s Territory. Raymarine reserves the right to: (i) sell
Systems in the Territory and Field; and (ii) appoint other
distributors, OEMs, sales representatives, and agents in the
Territory and Field. Distributor shall not subcontract its
responsibilities under this Agreement without Raymarine’s
written consent.
2.2
No Additional Warranties. Distributor shall not make
warranties or representations regarding Systems that differ
from or add to Raymarine’s representations. Distributor shall
indemnify Raymarine against and hold it harmless from any
and all claims, liabilities, damages, costs and expenses,
including reasonable attorneys’ fees, arising out of or relating
to Distributor’s failure to comply with this Section 2.2.
2.3
Display and Demonstration Equipment.
2.3.1 Display Equipment. Certain equipment for use by
Distributor as display equipment, if applicable, is subject to the
supplemental Display Equipment Program or Consignment
Agreement specified in Schedule A.
2.3.2 Thermal Imaging Demonstration Equipment. Upon
execution of this Agreement, Distributor shall purchase from
Raymarine, for demonstration purposes, the Minimum
Demonstration Equipment specified in Schedule A, if any.
Distributor may purchase one (1) of each Demonstration
Equipment Systems specified in Schedule A, if more than one
is specified. Subject to Distributor’s compliance with Section
2.11 and after Distributor offers Raymarine an opportunity to
repurchase the Demonstration Equipment at its current market
value and Raymarine declines, Distributor may resell such
Demonstration Equipment to a third party six (6) months after
purchase solely “as is” and with no warranty.
2.4
Minimum Order Requirement/Minimum Sales Targets.
Dealer shall abide by the Minimum Order Requirement (MOR)
in Schedule A, if applicable. Dealer shall use its best efforts to
achieve the Minimum Sales Targets (MST) as specified in
Schedule A, if applicable. If Dealer fails to meet, or if
Raymarine, in its sole discretion, determines that it is unlikely
that Dealer will meet the MOR or the MST, Raymarine may
Page 2 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
terminate this Agreement for breach under Section 9.2.
Raymarine may, in its sole discretion, change the MOR or
MST annually.
2.5
Support.
Upon Raymarine’s reasonable request,
Distributor shall act as the initial source of Systems support for
Distributor’s customers, and shall provide primary and ongoing
support services that include, but are not limited to, training,
first-line Systems repair and maintenance, and technical
advice.
Such support services shall be at Distributor’s
expense and subject to applicable export laws and regulations.
2.6
Liability Insurance.
Distributor shall maintain
comprehensive general liability insurance that is acceptable to
Raymarine with limits not less than one million dollars
($1,000,000) per occurrence for bodily injury and five hundred
thousand dollars ($500,000) per occurrence for property
damage. Distributor shall provide evidence of its liability
insurance to Raymarine immediately upon request, and shall
advise Raymarine immediately of any changes in coverage or
insurer.
2.7
Reports and Forecasts.
At Raymarine’s request,
Distributor shall provide Raymarine with a written report
summarizing all sales, the names and addresses of customers
contacted, promotional sales activities, customer feedback
forecasts, and any other Systems activity information as
Raymarine may reasonably request.
2.8
Records and Audits. Distributor shall maintain records
for each System purchased which shall include the name and
address of each end-user and potential end-user of the
System and technical data related thereto. During the Term
and for three (3) years after termination of this Agreement,
Raymarine shall have the right to audit, at Raymarine’s
expense, all such records to verify Distributor’s compliance
with its obligations under Sections 2.1, 2.6, 2.9, 2.10 and 2.11.
Distributor shall provide Raymarine access to all such records
during normal business hours upon request. Notwithstanding
anything in this Section 2.8, Distributor is solely responsible for
ensuring Distributor’s full compliance with the obligations in
Section 2.11.
2.9
Training. Raymarine may provide initial training to
Distributor on use of Systems, and shall update that training as
Raymarine deems appropriate. Distributor thereafter shall
provide initial and ongoing training as directed by Raymarine,
in the proper use of Systems to all: (i) employees and
authorized representatives who demonstrate and sell
Systems; and (ii) customers who purchase Systems from
Distributor. Distributor shall ensure that Distributor’s trainees
on Systems have read, and are familiar with, the Systems’
operating manuals and other Systems information prior to
using Systems.
2.10 Compliance With Laws. Distributor shall, during the
Term and thereafter with respect to surviving obligations
achieve ongoing familiarity and compliance with all laws,
treaties, rules, regulations, orders, and other requirements
applicable to Distributor’s performance under this Agreement,
including, without limitation, the U.S. Foreign Corrupt Practices
Act (FCPA), as well as any other anti-corruption laws
applicable in the Territory (Anti-Corruption Laws). Distributor
shall, at its own expense and on an ongoing basis, obtain and
maintain all permits, licenses, and approvals that are required
from time to time for Distributor to perform under this
Agreement.
2.11 Export Compliance. Unless expressly indicated in
Schedule A, some Systems are subject to U.S. Government
export laws and regulations (Export Laws). Distributor shall
not export, re-export, or transfer (directly or indirectly) the
Systems or related technical data received from Raymarine
without strictly complying with all Export Laws, including
obtaining all required licenses, authorizations, certifications,
and approvals. Distributor shall inform its customers that
Systems are subject to Export Laws. Distributor understands
that an express condition of every sale of a System is the
issuance of appropriate authorization by export authorities.
Raymarine has no control over the decisions of governments
and undertakes no liability to Distributor or any third party in
any way for such decisions. Nothing in this Section shall be
considered authorization for Distributor to sell, directly or
indirectly, Systems outside Distributor’s Territory. Prior to any
sale of Systems or related technical information, Distributor
shall check the most recent export restriction lists maintained
by the Department of Commerce and the Department of State,
including, without limitation, the denied persons list, unverified
list, entity list, specially designated nationals list, and the
debarred list (see: http://www.bis.doc.gov/ComplianceAnd
Enforcement/ListsToCheck.htm). Distributor shall also check
other lists maintained by other U.S. government agencies, as
applicable.
3.
PURCHASE OF SYSTEMS.
3.1
Orders. Distributor may order Systems by submitting
written purchase orders to Raymarine (Orders). Orders shall
be deemed accepted unless Raymarine notifies Distributor
otherwise in writing. Additional or different terms proposed by
Distributor and not specifically accepted by Raymarine in
writing shall not apply to this Agreement. Distributor is not
entitled to any priority of supply. Raymarine may discontinue
and change Systems in Raymarine’s discretion. Distributor
may cancel or reschedule Orders if Raymarine consents in
writing, and Distributor complies with Raymarine’s Restocking
Policy. A copy of the Restocking Policy will be supplied to
Distributor upon its written request.
3.2
Prices. Prices for Systems purchased by Distributor
shall be according to Raymarine’s then-current price list or
program as set forth in Schedule A of this Agreement.
Raymarine may change Prices or Distributor’s Pricing Level at
any time (Price Change). All Orders accepted after the
effective date of a Price Change shall be subject to such Price
Change.
3.3
Payment. Distributor shall pay Raymarine in U.S.
Dollars within thirty calendar (30) days of Delivery (as defined
in Section 3.6 below), conditioned on approved credit. If credit
is not approved, Distributor shall pay in advance or by letter of
credit acceptable to Raymarine. Raymarine may invoice
Distributor upon the earlier of Delivery or notice of Delivery
readiness, and for pro rata amounts for partial shipments.
3.4
Failure to Pay. Distributor shall pay monthly interest at
a rate of one and one half percent (1½%), or the maximum
allowed by law, of the unpaid balance on all overdue
payments.
Distributor shall pay Raymarine’s costs of
collection including, but not limited to, attorneys’ fees and
costs.
3.5
Taxes. Except for taxes based on Raymarine’s net
income, Distributor shall pay applicable sales, use, property,
Page 3 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
value-added, or other similar taxes, duties, and assessments
imposed with respect to Systems.
3.6
Shipment and Delivery. Deliveries of Systems shall be
Ex Works (Incoterms 2010) Raymarine’s or its agent’s plant
(Delivery). If Raymarine, as a courtesy to Distributor, agrees
to arrange carriage of the Systems on Distributor’s behalf,
Distributor shall be responsible for all transportation,
brokerage, handling, and other charges incurred and
Raymarine may invoice Distributor for all such costs without
altering the term of Delivery. Systems shall be packaged for
shipment in accordance with Raymarine’s standard practices.
Title and full risk of loss pass to Distributor upon Delivery.
Insurance coverage on all shipments shall be the responsibility
of Distributor. Upon Order acceptance, Raymarine will provide
Distributor with a non-binding estimate of Delivery date(s).
Raymarine will substantially meet estimated Delivery dates,
but shall not be liable for any damages resulting from any
delay in Delivery.
4.
LIMITED WARRANTY
Raymarine warrants that on the date of Delivery and for one
(1) year thereafter (Warranty Period), the Systems will
substantially conform to Raymarine’s specifications and be
free from defects in material (Warranty). Distributor shall send
Warranty claims to Raymarine, in writing, promptly and, in any
event, within the Warranty Period. Raymarine, at its sole
option, shall either repair or replace nonconforming Systems
(Remedy). This Warranty is void if the System has been
repaired, altered, or modified in any manner by persons other
than Raymarine or Raymarine’s authorized representatives.
The Warranty excludes nonconformities resulting from: (i)
normal wear and tear; and (ii) failure to properly store, install,
operate, or maintain the System. The Remedy is Raymarine’s
sole obligation, and Distributor's sole and exclusive remedy,
for all claims of nonconformities. If the Remedy is adjudicated
to be insufficient, Raymarine shall refund Distributor’s paid
Price and have no other liability to Distributor. Raymarine
warrants repairs and spare or replacement parts manufactured
by Raymarine for six (6) months after returning Systems to
Distributor, or the remainder of the Warranty Period, whichever
is greater.
Distributor shall pay the costs of returning
nonconforming Systems to Raymarine and Raymarine will pay
the costs of return shipping to Distributor. RAYMARINE
DISCLAIMS ANY AND ALL OTHER WARRANTIES,
EXPRESS, IMPLIED, AND STATUTORY, WITH RESPECT
TO SYSTEMS, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT AND TITLE.
NOTE: Some Raymarine products are eligible for extended
warranty coverage. Original end-user purchasers should
review their product literature or visit www.raymarine.com for
product-specific warranty information and important terms,
conditions, limitations and exclusions.
5.
INDEMNIFICATION. Distributor shall, to the fullest
extent permitted by law, indemnify Raymarine against and
hold it harmless from any and all claims, liabilities, damages,
costs and expenses, including reasonable attorneys’ fees,
arising out of or relating to: (i) the failure of Distributor to
comply with all applicable laws, rules, and/or regulations,
including, without limitation, Anti-Corruption Law and Export
Laws; (ii) the failure of Distributor to comply with the terms and
conditions of this Agreement; (iii) any negligent act or omission
of Distributor; (iv) intellectual property infringement caused by
Distributor’s integration of Systems into other products; and (v)
any claims by end users of Systems related to this Agreement
(Claims). Raymarine may participate in the defense or
settlement of any Claim, suit or proceeding with counsel at its
expense.
6.
LIMITATION OF LIABILITY. IN NO EVENT SHALL
RAYMARINE BE LIABLE FOR INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR
FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNTS
PAID BY DISTRIBUTOR OR DUE HEREUNDER FOR OR
RELATED TO SYSTEMS OR THIS AGREEMENT WITHIN
THE YEAR IN WHICH THE EVENT GIVING RISE TO THE
CLAIM
FOR
DAMAGES
OCCURRED,
WHETHER
FORESEEABLE OR UNFORESEEABLE, OF ANY KIND
WHATSOEVER, WHETHER BASED ON WARRANTY,
CONTRACT,
TORT
(INCLUDING
NEGLIGENCE),
PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF
RAYMARINE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE.
7.
INTELLECTUAL PROPERTY RIGHTS.
7.1
Distributor acknowledges the ownership of and the
validity of Raymarine’s trademarks, brand names, trade
names, copyrights, patents, designs, trade secrets, inventions,
and similar intellectual property, whether registered or not
(collectively, "Intellectual Property").
Distributor will not
reverse engineer, reverse compile or reverse assemble the
Products in whole or in part, and Distributor will not develop:
(a) any products incorporating any of Raymarine's Intellectual
Property; nor (b) any improvements or applications related to
the Intellectual Property. Distributor agrees not to apply for the
registration of Intellectual Property in any country nor
otherwise take any action inconsistent with Raymarine's rights
in the Intellectual Property. Except as provided herein,
Distributor will not use in any way (including in Distributor's
letterhead or presentation cards) Raymarine's trade or
business names or trademarks. Distributor will immediately
notify Raymarine in writing of any potential infringement of
Raymarine's Intellectual Property by other parties, or of any
claim or possibility that the Intellectual Property infringes the
rights of others, and will cooperate with Raymarine to protect
Raymarine's Intellectual Property against infringement.
Distributor will assist Raymarine in filing applications or other
documents for the purpose of obtaining Intellectual Property
registration or other rights in the Territory, for the benefit of
Raymarine. Distributor acknowledges that Raymarine shall
own any updates or enhancements to Systems, whether
developed by Distributor or Raymarine. Distributor agrees that
it shall not do, or cause to be done, any act that contests or in
any way impairs any portion of Raymarine's and its licensors,
right, title and interest in an to such Intellectual Property
Rights. Distributor shall not obscure or remove any proprietary
rights notices of Raymarine or its licensors contained in
Systems, including any trademarks, and copyright notices.
7.2
Trademarks. Subject to Distributor's compliance with
all of the terms and conditions of this Agreement, Raymarine
hereby grants to Distributor a non-exclusive, non-transferrable,
limited right to use and display Raymarine's trademarks,
service marks, trade names, and logos related to Systems,
including but not limited to the trademarks and names
Raymarine, FLIR and FLIR Systems (Marks), in connection
with the marketing, advertisement, packaging, and distribution
of Systems in accordance with this Agreement. Distributor
agrees to abide by all quality control specifications for use of
the Marks that may be communicated by Raymarine to
Distributor from time to time. Distributor agrees to cooperate
with Raymarine to facilitate Raymarine's monitoring and
Page 4 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
control of the nature and quality of Systems and services
offered in connection with the Marks and to supply Raymarine
with specimens of use of the Marks upon request. Distributor
understands and agrees that the use of any of the Marks in
connection with this Agreement shall not create any right, title,
or interest in or to any of such Marks and that all such use and
goodwill associated therewith shall inure to the benefit of
Raymarine. Distributor's use of the Marks shall be limited
solely to, and in connection with, the sale of Raymarine
products. No third party trademark, service mark, trade name
or logo shall be used in conjunction with any of the Marks.
Upon termination of this Agreement, Distributor shall
immediately cease any and all use of the Marks in any manner
whatsoever.
7.3
Domain Names. Distributor shall not, without prior
written consent of Raymarine, obtain, maintain, register, or use
any domain name comprised solely or partially of any of the
Marks. In the event of Raymarine's consent to the use and/or
registration of any domain name comprised solely or partially
of any of the Marks, Distributor acknowledges that upon
termination of this Agreement, the continued use and/or
ownership of such domain name(s) would harm Raymarine's
rights in the Marks, and infringe the Marks. Accordingly,
Distributor agrees to assign to Raymarine any and all domain
names comprised solely or partially of any of the Marks
immediately upon termination of this Agreement.
7.4
Keyword Advertising. Distributor shall not, without prior
written consent of Raymarine, engage in any keyword
advertising using wording comprised solely or partially of any
of the Marks. In the event of Raymarine's consent to the use
of any of the Marks in keyword advertising, Distributor
acknowledges that upon termination of this Agreement, the
continued use of such keyword advertising would harm
Raymarine's rights in the Marks, infringe the Marks, and
constitute unlawful unfair competition. Accordingly, Distributor
agrees to cease any and all keyword advertising comprised
solely or partially of any of the Marks immediately upon
termination of this Agreement.
8.
CONFIDENTIAL INFORMATION. For purposes of this
Agreement, “Confidential Information” shall mean any
information if: (i) it is delivered in written form marked
“confidential” or by similar legend, (ii) it is delivered orally and
described as confidential at the time of delivery or disclosure,
or (iii) the receiving party should reasonably be expected to
judge it as confidential. Neither party shall directly or indirectly
communicate to any person or other entity any Confidential
Information unless: (i) such information is already known by
the receiving party, as evidenced by its business records at
the time it was provided; (ii) such information is already in the
public domain; or (iii) such information lawfully comes into the
receiving party's possession from a third party without any
obligation of confidentiality. Nothing herein shall prohibit the
receiving party from disclosing Confidential Information if the
receiving party is required to disclose such information
pursuant to law or court order, but only after notifying the other
party and allowing the other party an opportunity to obtain a
protective or other order.
Both parties agree to use
Confidential Information only in its performance under this
Agreement and shall treat and protect such information in the
same manner as it treats its own information of like character,
but with not less than reasonable care. The obligations of this
Section 8 shall continue for a period of five (5) years after
termination or expiration of this Agreement. Confidential
Information shall be returned by the receiving party upon
written notice or termination or expiration of this Agreement.
9.
TERMINATION AND RENEWAL.
9.1
Term. The term of this Agreement shall extend from
the Effective Date (defined on the Signature Page) to the date
this Agreement is terminated according to its terms (Term).
9.2
Termination.
Either party may terminate this
Agreement: (i) for convenience by giving sixty (60) days’ prior
written notice to the other party; (ii) for material breach that
remains uncured for a period of thirty (30) days from receipt of
written notice from the nonbreaching party specifying the
breach with particularity; or (iii) upon written notice in the event
the other party files or has filed against it a petition under any
bankruptcy or insolvency law that is not dismissed within sixty
(60) days, applies for the appointment of a receiver, initiates
any proceeding for the liquidation or winding up of its
business, or ceases to function as a going concern.
Distributor's breach of this Agreement, or any other agreement
that Distributor has with Raymarine, shall entitle Raymarine, in
its sole discretion, to cancel any or all agreements with
Distributor, in whole or in part, with such termination being
effective when Distributor receives Raymarine's written notice.
Raymarine's notice of cancellation may be delivered as set
forth in Section 10.9. Raymarine may terminate this
Agreement immediately upon written notice to Distributor if
Raymarine makes a good faith determination that Distributor
breached any obligation of Sections 2 (Responsibilities of
Distributor), 7 (Intellectual Property Rights), 8 (Confidential
Information), or for Distributor’s other incurable breaches.
9.4
Effect of Termination. Distributor’s right to use, market,
and distribute Systems shall terminate immediately upon
termination of this Agreement for any reason.
Unless
termination is for Distributor’s breach of this Agreement,
Raymarine will honor all Orders accepted by Raymarine prior
to termination, provided that shipment of such Orders is
scheduled to occur within the four (4) months following
termination.
Raymarine reserves the right to require
Distributor to fully pay for Systems before Delivery.
9.5
Survival. The following Sections of this Agreement shall
remain in effect after termination: Sections 2.2, 2.5, 2.8, 2.10,
2.11, 3.3, 3.4, 3.5, 5, 7 and 8.
10.
GENERAL.
10.1 Entire Agreement, Amendment, and Waiver. This
Agreement supersedes all prior and contemporaneous
agreements, representations and understandings and contains
the entire agreement between the parties.
Distributor
acknowledges that it has not relied upon any promise,
representation or statement of Raymarine in entering into this
Agreement except as expressly set forth herein.
No
amendment or modification of any provision of this Agreement
shall be effective unless such amendment or modification is in
writing, is signed by a duly authorized representative of each
party. No failure or delay of Raymarine in exercising any right
or remedy under this Agreement shall operate as a waiver of
such right or remedy.
10.2 Independent Contractor. Both parties shall conduct
business under this Agreement as independent contractors
and this Agreement creates no relationship of principal and
agent, partner, joint venturer, or any similar relationship.
Neither party shall represent itself to be an agent for the other
party and shall not attempt to create any obligation or make
any warranty or representation on behalf of or in the name of
the other party.
Page 5 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012
10.3 Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and
assigns. Distributor may not assign or otherwise transfer its
rights or obligations under this Agreement, to a successor or
otherwise, without the express written consent of Raymarine
including pursuant to Distributor’s merger or consolidation with
or into, or the purchase of all outstanding stock of Distributor
by, any other entity.
10.4 Severability. In the event that any provision of this
Agreement is found to be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of any of
the remaining provisions shall not in any way be affected or
impaired and the parties further agree to substitute for such
invalid or unenforceable provision a valid and enforceable
provision of similar intent and economic effect.
10.5 Force Majeure. Neither party shall be liable to the other
for any nonperformance, loss, damage, or delay (except with
respect to Distributor’s payment obligations herein) arising out
of any cause or event not within its reasonable control
including, but not limited to war, acts of terrorism, riots, fire,
flood, strikes or other labor difficulty, governmental actions,
acts of God, transportation delays, or inability to obtain
necessary labor or materials from usual sources. In the event
of delay in performance due to any such cause, the date of
delivery or time for completion shall be extended at least by
the length of time lost due to such delay.
10.6 Equitable Relief. The Parties acknowledge and agree
that damages at law may be inadequate remedies for the
breach of this Agreement, including, without limitation,
Sections 7 (Intellectual Property Rights) and 8 (Confidential
Information) and, accordingly, agree that the other party is
entitled to seek injunctive or other equitable relief with respect
to any breach by a party of such Sections without the
necessity of proving actual damages or posting a bond or
other security. The rights set forth in this Section shall be in
addition to any other rights that the parties may have at law or
in equity.
10.7 Countertrade (Offset). Raymarine may use all or any
part of the value of Orders for countertrade (offset) purposes,
including but not limited to: (a) fulfilling FLIRs countertrade or
industrial benefit obligations; (b) transferring to third parties the
countertrade credits granted to Raymarine for the Orders; and,
(c) retaining credits for application to Raymarine’s future
countertrade obligations.
10.8 Applicable Law. This Agreement shall be governed and
construed in accordance with the laws of the State of
California, exclusive of its conflicts of law principles and of the
U.N. Convention on Contracts for the International Sale of
Goods.
The parties hereby irrevocably consent to the
exclusive jurisdiction and venue of the state and federal courts
within Santa Barbara County, California, for any action, suit, or
proceeding in connection with this Agreement, and hereby
waive any defense based upon improper or inconvenient
venue or lack of personal jurisdiction. The substantially
prevailing party in a suit shall be entitled to reimbursement for
its costs and expenses, including reasonable attorneys’ fees
and costs at trial and on appeal.
10.9 Notices. All notices and other communications under
this Agreement shall be in writing by registered or certified
mail, postage prepaid, overnight courier or electronic facsimile
to the receiving party at its address set forth on the first page
of this Agreement, or to any other address a party may provide
in writing. Any notice or other communication sent by
facsimile shall be deemed to have been received on the day it
is sent. Any notice or other communication sent by registered
or certified mail or courier shall be deemed to have been
received five (5) business days after its date of posting.
*****
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Rev. 16JUL2012
SCHEDULE A
Field(s)
Systems
and Pricing
Export Control
Not Applicable
Maritime – consumer retail distributor
Maritime – wholesale distributor
Maritime – OEM/boat-building
Maritime – government/law enforcement
Other: n/a
The products on the following CONFIDENTIAL Price List define the “Systems” and are priced as
indicated:
click here to select
Other or additional products defined as “Systems” under this Agreement:
n/a
Other, additional, or special pricing or discount programs applicable to this Agreement:
n/a
All documented price lists, policy statements, addendums, additional or special pricing, or discount
programs referenced above refer to the document revision in effect as of each System order date.
Section 2.11 of this Agreement does not apply because none of the Systems identified above are subject
to U.S. Government export laws and regulations (Export Laws).
The CONFIDENTIAL Raymarine Dealer Display Program applies.
Display and
The CONFIDENTIAL Raymarine Thermal Camera Display Program applies.
Consigned
Equipment
The CONFIDENTIAL Raymarine Consignment Agreement applies.
Terms and
The above referenced Display Programs and/or Consignment Agreement refer to the document
Requirements
revision in effect as of each System order date.
Minimum
Thermal
Imaging
Demonstration
Equipment
Requirements
Minimum
Order
Requirement
P/N(s) and Quantity
Description(s)
n/a
n/a
Price Level
% discount from MSRP
n/a
Q1 / click here to select Q2 / click here to select Q3 / click here to select Q4 / click here to select
Minimum
Sales
Targets
$n/a.00
$n/a.00
$n/a.00
$n/a.00
Annual: click here to select
Each Subsequent Year Agreement is in Effect:
$n/a.00
$n/a.00
Other: n/a
MAP Policy
The Raymarine Minimum Advertised Price (MAP) Policy is available at: www.flir.com/MAPpolicy
Page 7 – Raymarine Distributor Agreement (USA)
Rev. 16JUL2012