MIDLAND RADIO
AUTHORIZED INTERNET RESELLER AGREEMENT
THIS INTERNET AGREEMENT executed between the parties (the “Agreement”) is made effective the date of its execution (the "Effective Date"), by and between Midland Radio Corporation with principal offices at 5900 Parretta Drive, Kansas City, Missouri 64120 ("Midland"), and the Authorized Reseller which has executed this Agreement ("Reseller"). Midland and Reseller are each sometimes referred to herein as a "party" or collectively as the "parties." The parties agree as follows:
Definitions.
· Products: The (“Product(s)”) shall mean the approved Midland products and related equipment and accessories listed on Schedule A.
· Territory: The (“Territory”) shall mean the United States of America.
· End-User: An (“End-User”) shall mean any purchaser of the Product(s) from the Reseller who is the ultimate consumer for whom the Product is designed and who does not intend to resell the Product to a third party.
· Transship: (“Transship”) shall mean the sale of Product(s) to any entity other than an End-User.
· Term. The (“Term”) of this Agreement shall begin on the Effective Date and, unless sooner terminated as provided herein, continue in full force and effect for one (1) year from the Effective Date. This Agreement will automatically renew for consecutive one (1) year Terms thereafter.
1. Internet Appointment. Midland grants to the Reseller and the Reseller accepts the non-exclusive right to fulfill orders and to market, sell, and distribute the Products to End-Users located in the Territory solely on the Internet URL locations listed in the then-current Internet Reseller Profile attached hereto as Schedule B and approved by Midland.
2. Third Party Internet Marketplaces. Reseller, ONLY if approved specifically by Midland, shall be allowed to sell or advertise Products on certain approved third party Internet marketplaces under certain approved names.
3. Transshipping. Reseller shall not knowingly transship the Products, specifically; it shall not sell or transfer any of the Products to any person or entity for resale. Reseller shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Midland that Reseller purchased or obtained from a source other than directly from Midland or a Midland Authorized Distributor. Reseller shall not obscure or alter in any fashion any Product or its packaging.
4. Geographic Sales Boundary. Reseller may only sell and advertise for sale the Products within the Territory. Midland hereby expressly prohibits the Reseller from soliciting or consummating sales outside the Territory.
5. Commingled Inventory. Reseller shall not cause or allow the Products to be sold on a third party marketplace if the Reseller is unable to certify that all Products purchased from Reseller are fulfilled with Products the Reseller purchased from Midland or a Midland authorized distributor.
6. Sales by Auction. Sales by the Reseller of Product(s) by way of online auction are prohibited.
7. Liquidated Damages. For each occasion that Reseller breaches Sections 1, 2, 3, 4, 5, or 6 of this Agreement by engaging in the unauthorized sale of Products, in addition to all other remedies available to Midland under this Agreement and at law, Reseller agrees to pay Midland, as liquidated damages and not as a penalty, the greater of the following amounts: (i) the costs and fees associated with Midland’s investigation and enforcement regarding the 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.
8. Intellectual Property and Website Content. Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Licensed IP for the sole purpose of advertising and promoting the sale of Products within the Territory to End-Users, subject to the restrictions and limitations described in Schedule C of this Agreement.
9. Reseller Obligations. During the term of this Agreement, Reseller shall:
a. promote, market, and sell the Products;
b. maintain qualified personnel with knowledge of the specifications, features and use of the Products;
c. provide quality post-sale return support for all End-Users that purchase the Products;
d. preserve the reputation and goodwill of Midland and the Products and avoid any illegal or unethical actions, including without limitation “bait and switch” practices;
e. 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. Reseller agrees not to engage in any unfair trade practices. Reseller shall indemnify and hold Midland harmless from any cost or liability, including costs of litigation and attorney’s fees as may be incurred in defending any civil, criminal, or administrative action brought against Midland, its officers, employees, or agents of Midland that may result from a violation of this paragraph;
f. operate a physical street address, and a landline telephone number for contact by its customers and must advise customers of this physical address and the landline telephone number. Post office boxes and mobile telephone numbers are not sufficient; and
g. comply with the additional terms and conditions set forth in Midland’s Terms and Conditions.
10. Breach. Any violations of the terms of this Agreement shall be deemed a breach of the Agreement, entitling Midland to terminate the Agreement immediately or take any other action allowed under the law.
11. Termination. This Agreement may be terminated as follows:
a. by Midland immediately upon notice to Reseller in the event of a breach of any of the terms of this Agreement; or
b. by Midland or Reseller, without cause or liability, upon thirty (30) days’ prior written notice to the other party.
12. Repurchase Option. Within ten (10) days of termination of this Agreement for any reason, Reseller agrees to provide Midland with a list of its inventory of the Products. Midland, at its option, will have the right to repurchase from Reseller any or all saleable Products in Reseller’s inventory by sending written notice of the exercise of such option within thirty (30) days from the effective date of expiration or termination or the date Midland receives the foregoing list, whichever last occurs. The purchase price of such Products will be at the net invoice prices at which the Products were originally purchased by Reseller, less any discounts or allowances that Midland may have given Reseller on account of such Products. If such option to repurchase is exercised by Midland, Reseller agrees, at Reseller’s expense, to deliver to Midland Reseller’s inventory of the Products in their original packages within thirty (30) days of receipt of Midland notice of exercise.
13. Unilateral Policy. Reseller acknowledges that Reseller has been informed of Midland’s Unilateral Policy as it applies to the advertisement for sale of Midland Products from Resellers to End-Users in the United States. There is no agreement, express or implied, between Midland and Reseller with respect to the advertised or resale pricing of Products. If any director, officer, employee, representative, or other agent of Midland tries to coerce Reseller to agree to the price at which Reseller advertises or resells Midland Products, such action shall be considered void, unauthorized, and without effect and Reseller shall promptly notify Midland’s Policy Coordinator at upcommittee@midlandradio.com.
14. Amendments & Waivers.
a. Except as otherwise set forth in Section 14(b) of 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. 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. Midland may amend any Schedule in this Agreement or any information contained in the Portal by providing notice to the Reseller, and any such amendment shall become effective immediately upon delivery of such notice.
15. Entire Agreement. This Agreement, the Schedules, any additional terms and conditions mutually agreed upon in writing by the parties, Midland’s written invoices, and any and all personal guarantees or assurances of payment set forth by Reseller set forth the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.
16. Law and Forum. This Agreement shall be deemed to have been entered into and fully performed in the State of Missouri and shall be governed by and construed in accordance with the laws of the State of Missouri without regard for the conflicts of laws rules thereof. Reseller agrees that all controversies, disputes and claims arising out of this Agreement shall be adjudicated exclusively by a court of competent jurisdiction within Jackson County, Missouri or the United States District Court for the Western District of Missouri, except that any judgment in any such action may be enforced in other jurisdictions by suit or in any other permitted manner. Reseller irrevocably consents to the jurisdiction and venue of the state and federal courts of Missouri and waives any rights to seek a transfer of venue for any reason or to claim that the forum is inconvenient.
17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.