WHEREAS, Vibe Kayaks is a corporation that manufactures and distributes Kayaks and related materials (the “Products”) throughout the United States and abroad. WHEREAS, Vibe Kayaks has established a brand containing various Products that has become known in the kayaking community for its quality, craftsmanship and performance. WHEREAS, Dealer seeks to be named as an exclusive, authorized distributor, of the Products. The parties do hereby agree as follows:
1. Vibe Kayaks hereby appoints the Dealer, as it’s representative in ________________ (“Authorized Dealer”), for sales made in and around a 30 mile radius of Dealer’s Location (the “Exclusive Territory”) for an initial period of six (6) months from the date of execution of this agreement (the “Initial Term”). After the Initial Period, Vibe Kayaks at its sole discretion, shall notify Dealer that the Initial Term will be extended for additional, automatically renewable, one-year periods (the “Renewal Term”). Dealer acknowledges that Vibe Kayaks will continue to acquire new dealers and will assign them at a distance of no closer than 60 miles from the Dealer’s Location. In the event that a new dealer prospect’s location is closer than 60 miles from Dealer’s Location, Vibe Kayaks will notify Dealer and obtain Dealers’ written approval to accept new dealer.
2. Either party may terminate this agreement by sending notice of termination as set forth below.
a. A Dealer Termination shall become effective upon Dealer giving thirty (30) days notice of its Termination of this agreement (a “Dealer Termination”). A Dealer Termination shall require Dealer to return all unsold Products to Vibe at 50% of the cost to Dealer, and Vibe Kayaks has the right to reject such tender of unsold Products. If Vibe Kayaks rejects such tender Dealer may dispose of any unsold products at any price, but subject to the conditions of this Agreement, which shall be continuing until all Products are sold from Dealer’s inventory.
b. A Termination by Vibe of this agreement for cause, as detailed in paragraph 22 below, shall become effective upon giving dealer five (5) days notice of the termination of this agreement (a “Vibe Termination”). A Vibe Termination shall require Dealer to return all unsold Products to Vibe at 100% of the cost to Dealer. Vibe Kayaks has the right to reject such tender of unsold Products. If Vibe Kayaks rejects such tender Dealer may dispose of any unsold products at any price, but subject to the conditions of this Agreement, which shall be continuing until all Products are sold from Dealer’s inventory.
3. As an Authorized Dealer, Dealer shall be allowed to purchase specific Vibe Kayaks products at the published wholesale pricing that is current at the time of the issuance of the purchase order. Dealer must make a minimum order of ten (10) kayaks (subject to Vibe Kayaks’ discretion). Dealer will be responsible for all shipping costs related to all products shipped to Dealer’s address. Vibe Kayaks, at its discretion, may provide Vibe Products to the Authorized Dealer on credit. An Authorized Dealer’s request to purchase Vibe Kayaks Products on Credit will be governed by Addendum A, attached hereto and incorporated herein by reference. For Addendum A to be part of this agreement it must be separately signed by representatives of both Vibe Kayaks and the Authorized Dealer.
4. Vibe Kayaks shall (a) provide Dealer with sales and technical information regarding the Products (b) inform Dealer from time to time of Vibe Kayaks current prices and terms for its Products and (c) supply Dealer with Product literature. Premium POS material can be purchased, when available, by Dealer.
5. Dealer agrees that it shall:
(a) diligently and faithfully obtain the maximum number of orders for the Products from customers;
(b) Represent Vibe Kayaks in a respectful manner both in store and in public including social media;
(c) conduct the Dealer’s business in a lawful manner;
(d) promptly answer questions from customers or others interested in the Products;
(e) not enter into any agreement that would be binding upon Vibe Kayaks;
(f) not use the name Vibe Kayaks as part of the Dealer’s trade or business name;
(g) pay all of the Dealer’s expenses, taxes, liability, and shipping;
(h) not make any alterations to the hull of any of the Products (excluding normal rigging), any such alteration shall void the warranty given by Vibe Kayaks,;
(i) hold Vibe Kayaks harmless from any mismanagement on the Dealers part.
6. Dealer shall submit to Vibe Kayaks copies of all advertising and other promotional materials used by the Dealer, which relate to the Products. Dealer must obtain written permission to use such material, prior to actually using it. Dealer shall not make any representations, claims, or warranties regarding the Products other than those authorized in writing by Vibe Kayaks. All Product Trademarks belong to Vibe Kayaks and Dealer shall not acquire any rights therein by virtue of their use. Dealer’s failure to comply with this provision is a breach of this Agreement that shall allow Vibe Kayaks to terminate this Agreement at will.
7. Vibe Kayaks reserves the right to change its prices at any time upon thirty (30) day notice. All orders shall be subject to Vibe Kayaks acceptance, which Vibe Kayaks may or may not give according to its sole discretion. Vibe Kayaks may at any time change or discontinue any or all of its present or future Product lines.
8. Sales people who may be employed by, in the name of, and at the expense of the Dealer, are not employees of Vibe Kayak. Dealer shall provide all training, management, and be responsibility for such salespersons. Dealer shall ensure that such employees are aware of the terms of this Agreement and abide to said terms. Dealer further agrees to be responsible for all legal requirements for such employees. Dealer shall not, so long as this Agreement is in effect, act as agent, representative, or officer of Vibe Kayaks.
9. Dealer agrees to hold Vibe Kayaks harmless from any actions taken or not taken by such employees or associates.
10. Vibe Kayaks shall make all reasonable efforts to protect the Exclusive Territory. In the event that another Authorized Dealer has made or has attempted to make sales in the Exclusive Territory, as defined herein, Vibe Kayaks shall take all reasonable efforts to require the other Authorized Dealer to cease and desist from all activities within the Exclusive Territory. Vibe Kayaks shall not be liable for the actions of anybody that has not been authorized by Vibe Kayaks as an Authorized Dealer. Dealer further acknowledges that Vibe Kayaks may sell Products to customers within the Exclusive Territory who solicit purchases through Vibe Kayaks’s web site. Vibe Kayaks will make all reasonable efforts to direct the customer to Authorized Dealer, but shall have no liability if the customer decides to make its purchase directly from Vibe Kayaks, by and through its contact through the web site.
11. Minimum Advertised Pricing (MAP). Vibe Kayaks believes that certain advertising and promotional practices can be inconsistent with Vibe Kayaks’ distribution and marketing policies. Because certain advertising and promotional practices can degrade the quality and brand of Vibe Kayaks products and undermine the company’s ability to maintain its position as a leading supplier of high quality products, Vibe Kayaks and all Dealers with follow the published Minimum Advertised Pricing (MAP).
Vibe Kayaks also recognizes that its Dealers need to provide a high level of professional service and information to the consumer on the selection and performance of Vibe Kayaks products. Vibe Kayaks has determined that any media advertising of Vibe Kayaks products listing the MAP Policy is not consistent with these Goals.
If at any point Vibe Kayaks becomes aware of any advertising in which a Dealer directly or indirectly advertised Vibe Kayaks products at prices below the MAP in effect at that time, Vibe Kayaks reserves the right to terminate the Authorized Dealer relationship. Minimum Advertised Pricing are those Manufacturer’s Suggested Retail Prices as listed on the current Price List and are effective until superseded by new Price List.
- “Advertising” or “advertise” as used in this policy refers to advertising disseminated via television, radio, newspaper, magazines, signs, catalogs, flyers, the Internet, and other mass media. Advertising on the Internet includes advertising on any page of any Internet site; it also includes advertising in store windows or signs visible outside the store, but does not include other in-store advertising.
- Distressed or discontinued products do not have MAP, however, they must be identified as “Discontinued” or “Damaged” in any advertising.
- Kayaks purchased from Vibe Kayaks for demonstration and display purposes, (i.e. Demo Kayaks) must be clearly marked and designated as “Demo Kayaks.”
12. Web Sales. Dealer understands that Vibe Kayaks will continue to offer its products online in an effort to grow its national presence. Vibe Kayaks will not advertise in Dealer’s territory and will follow the MAP pricing. Vibe Kayaks will make every effort to direct customers to the appropriate dealer. However, orders may be filled for a customer in Dealer’s Territory through the Vibe Kayaks website (“Web Sales”). For those orders, Dealer shall have no recourse. However, if Web Sales are identified by Dealer as having a material affect on Dealer, Vibe Kayaks will assist Dealer in its efforts to direct customers in Dealer’s Territory to Dealer. Vibe Kayaks may use national platforms such as Amazon or big box retailers to sell Vibe Products. Pricing used on such National Platforms shall be in accordance with MAP pricing, subject to adjustments, for which Vibe Kayaks has the exclusive discretion to allow without violating the terms of this Agreement.
13. Minimum Annual Purchase. Vibe Kayaks reserves the right to terminate this Agreement where Dealer does not purchase a minimum of $30,000 per calendar year in combined products provided to Dealer by Vibe Kayaks. Vibe Kayaks will give notice to Dealer that said minimum prior to termination and allow Dealer to make additional purchases to meet the minimum and avoid termination.
14. Assignment. A Dealer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of the other party. Any assignment or transfer in violation of this Section shall be null and void.
15. Dealer shall not at any time, either during or after the termination of this Agreement, divulge to others or use for its own benefit any confidential information obtained during the course of its appointment by Vibe Kayaks.
16. No relationship other than that of Authorized Dealer is intended to be created between the parties, it being intended by the parties that the Dealer act solely as an independent contractor. Nothing in this Agreement shall be construed as to
(a) give Dealer any rights in the business of Vibe Kayaks;
(b) entitle Dealer to control in any manner the conduct of Vibe Kayaks business; or
(c) give Dealer authority to bind Vibe Kayaks in any manner whatsoever.
17. If any provision in this Agreement is invalid, illegal, or incapable of being enforced by reason of any rule of law or public policy, all other provisions of this Agreement shall nevertheless remain in full force.
18. This Agreement constitutes the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, all prior understandings and agreements being merged herein. All amendments, changes, and revisions of this Agreement, or any part thereof, shall be in writing and executed by the parties hereto.
19. This agreement shall be governed and interpreted by the laws of the state of Georgia without regard to the conflicts of law provisions of any state or jurisdiction. Any action arising out of, or related to, this agreement shall be brought in the state or federal courts located in Atlanta, Cobb County, Georgia and each party hereby submits to the exclusive jurisdiction of such courts.
21. All notices under this Agreement shall be in writing and shall be effective three day after being deposited in the U.S. mail, first class postage prepaid, or shall be effective immediately upon personal service on a party. The addresses stated in this Agreement, to the attention of the person executing this Agreement, shall be the proper address for notice until changed by notice given to the other party.
22. In the event that Dealer breaches this Agreement in any way, Vibe Kayaks shall, at its discretion, may immediately terminate this Agreement by sending a notice of termination to Dealer at the address listed above or at an address provided thereafter in writing by Dealer. Once Dealer has received the Termination Notice, it must immediately cease and desist from holding itself out to customers of the Products as an Authorized Dealer for Vibe Kayaks.
23. If Dealer is in breach of this Agreement and has been terminated as set forth above, above, Dealer shall be responsible for all costs incurred by Vibe Kayaks including, but not limited to, all attorney’s fees incurred.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
[SIGNATURES APPEAR ON THE NEXT PAGE]