87 | Page
Code section 3426.1) which include all discoveries, developments, designs, improvements, inventions, formulas,
software programs, processes, techniques, know-how, negative know-how, data, research, technical data (whether or
not patentable or registrable under patent, copyright or similar statues and including all rights to obtain, register,
perfect and enforce those proprietary interests), customer and supplier lists, customer profile and other customer
information, customer and price list, business plans, and any modifications or enhancements of any of the forgoing,
and all program, marketing, sales, or other financial or business information disclosed to Distributor by
Manufacturer, either directly or indirectly, in writing or orally or by drawings or observation, which has actual or
potential economic value to Manufacturer.
“Distributor” shall mean _____________ and its Affiliates.
“Effective Date” shall mean ______________.
“Initial Term” shall mean the initial term of this Agreement from __ to __.
“Manufacturer” shall mean _____________ and its Affiliates.
“Manufacturer Customers” shall mean any individuals or entities, who are current or potential customers or
business prospects of Manufacturer, or who are introduced from or by Manufacturer to Representative.
“Order” shall mean orders placed by Distributor for Products, which are received by Manufacturer and
accepted by Manufacturer in writing.
“Party” shall mean Manufacturer or Distributor, individually. “Parties shall mean Manufacturer and
“Products” shall mean the products set forth in Attachment A, which is hereby incorporated by reference as
fully set forth in this Agreement.
“Renewal Term” shall mean any renewal term of this Agreement pursuant to Section 8.1 of this
“Term” shall mean the term of this Agreement, including the Initial Term and any Renewal Terms, if any.
“Territory” shall mean the following country/countries: __________ (or “____________ types of
customers serviced by Distributor in ___________).
GRANT OF DISTRIBUTORSHIP
Manufacturer hereby grants Distributor, subject to the terms and conditions of this Agreement, the
exclusive right to sell, distribute and service Products in Territory during the Term. (The word “exclusive” is
optional. Also, the right to sell can also be limited to selling Products to specified types of customers.)
RELATIONSHP OF THE PARTIES
Independent Contractor. This Agreement shall not be deemed to create a partnership, joint venture or an
agent and principal relationship between the parties, and Distributor or any of Distributor’s directors, officers,
employees or agents shall not, by virtue of the performance of their obligations under this Agreement, represent
themselves as, or be deemed to be, an agent, partner or employee of Manufacturer. The parties mutually agree that
Distributor is an independent contractor, not an employee, of Manufacturer. Neither party is liable for any acts,
omissions to act, contracts, promises, commitments or representations made by the other, except as specified in this
Exclusivity. Distributor shall be the exclusive distributor for Manufacturer to sell Products in Territory and
shall not act as a distributor or a sales representative for, or design, manufacture, sell, distribute, service or market,
any products in competition with any products manufactured by Manufacturer. Distributor shall disclose to
Manufacturer the identities of all products and manufacturers, which it distributes or represents, and notify, and
obtain prior written consent from, Manufacturer of any future products or manufacturers that it will distribute or
represent prior to making such commitment to do so. (Optional.)
Most Favorable Terms. If Manufacturer enters into any other export distribution agreement for Product
with another distributor in a different territory in the future, which provides that new distributor more favorable
terms, other than pricing for Products, Manufacturer will immediately amend this Agreement to provide Distributor
with the benefit of any terms, other than the pricing for Products, in the new agreement more favorable than those
included in this Agreement. (Optional.)
DUTIES AND RESPONSIBILITIES OF DISTRIBUTOR
Distributor's duties and responsibilities include but not be limited to:
Using its best effort to market, offer, sell, promote and develop a market for Products within
Territory, referring all inquiries regarding Products or other products manufactured by Manufacturer to
Manufacturer and maintaining qualified sales distribution organization and channels within Territory;
88 | Page
Engaging in sales promotion activities, in which designate Products with its correct name and
identify Products as being manufactured by Manufacturer and marketed and sold by Distributor as an
attached to this Establishing and maintaining place of business in Territory with display of
Products for demonstration, a staff of trained technicians and a stock of spare parts and technical literature in
order to provide technical support and services to customers; and providing technical support and services to
Purchasing the minimum dollar amounts of Products as set forth in Attachment A, a copy of which
is Agreement and is hereby incorporate by reference as fully set forth herein; and maintaining an inventory of
products sufficient to satisfy customer Orders as they are received.
Providing reports concerning inventory, sales and potential sales with fifteen (15) days from the
closing of each calendar __ (month or quarter), or as reasonably requested by Manufacturer, and forecasts of
anticipated sales over __ month period on a __ (quarter or yearly) basis to assist Manufacturer in planning
production activities; and assisting Manufacturer in assessing customer requirements for Products and
developing modifications and improvements of Products;
Providing logistical and support services in Territory concerning the sale or service of Products,
including but not limited to providing assistance necessary to Manufacturer in arranging and providing lodging,
office space, equipment, translation, transportation, communications, facilities and other related support
Conducting its business at all times in a manner, which shall reflect favorably on Manufacturer
and Products, and which is not deceptive, misleading, illegal or unethical, and providing advice and assistance
concerning compliance of laws, regulations, business and financial practices in Territory, maintenance of
contact, communications and liaison with government officials and obtaining necessary licenses, permits and
authorizations in compliance with law, regulations and ordinances;
Obtaining all necessary export and import licenses and permits, paying all customs duty and other
charges and fees and taking all other actions required to accomplish the export and import of Products;
Providing advice and assistance to Manufacturer on compliance of laws, regulations, business and
financial practices in Territory, maintenance of contact, communications and liaison with government officials
and obtaining necessary licenses, permits and authorizations in compliance with law, regulations and
Providing Manufacturer, upon reasonable notice by Manufacturer and during regular business
hours, access to Distributor’s place of business and inventory stock to ascertain Distributor’s compliance with
Providing Manufacturer with a copy of all Distributor’s sales, advertising and promotion materials
mentioned Products, and a copy of any translation of materials relating to Products prior to the use of such
materials and translations; and
Providing other assistance and services as Manufacturer may reasonably request.
(This is a suggested list and should be revised to meet the needs of the parties.)
Distributor shall not advertise, market, sell or distribute Products outside Territory or to establish or
maintain a warehouse located outside Territory for the distribution of Products outside Territory.
Distributor shall have no authorities to make any representations, warranties or guarantees or make or
execute any commitment or agreement, accept any Orders or incur any liability on behalf of Manufacturer or bind
Manufacturer in any way.
Distributor is responsible for all expenses incurred by Distributor in connection with the implementation
and performance of Distributor's duties and obligations under this Agreement, including but not limited to: (a) the
expenses incurred in fulfilling its duties and responsibilities as provided in Section 4; (b) costs, expenses and salaries
of its personnel associated with establishing and maintaining its sales organization and offices; (c) advertising and
promotion expenses; and (e) any and all taxes, duties, tariffs or charges that may be imposed on Distributor in
Distributor is solely responsible for the performance of its duties.
DUTIES AND RESPONSIBILITIES OF MANUFACTURER
Manufacturer will use its best efforts to deliver Products pursuant to the dates and other requirements stated
in Orders delivered to and accepted by Manufacturer, however, Manufacturer is under no obligation to sell or
continue to product any model or type of any Products, whether or not listed on Attachment A beyond ___ (__) days
of notice of discontinuation sent by Manufacturer to Distributor, and Manufacturer reserves the right to make
89 | Page
substitutions and/or modifications to Products if such substitutions or modifications will not materially adversely
affect overall performance of Products. In addition, Manufacturer will keep Distributor informed of changes in
Products, specifications and deliveries.
Manufacturer will provide Distributor, from time to time, advertising matter, price lists and technical
assistance when Manufacturer deems necessary
Manufacturer, from time to time, may, at Manufacturer’s sole discretion, make special purchase offers
and/or quantity discounts available to Distributor.
Manufacturer may, from time to time, send representatives to consult with Distributor concerning the
promotion and increase of market of Products and technical support and service of Products and provide training to
Distributor’s personnel as reasonably requested by Distributor.
Manufacturer shall make repair or replacement parts available to Distributor. Further, during the Term and
during a period of ___ (months, years) after the expiration or termination of the Agreement, Manufacturer will sell
Distributor repair and replacement parts necessary to maintain Products in good and serviceable condition at all
times, unless the parts have been discontinued by Manufacturer. Manufacturer shall provide Distributor __ (_) day
prior notice of any discontinuance.
Manufacturer shall not make any direct sales within Territory, except for accommodation sales or as
otherwise agreed upon by the parties. In those cases, commissions shall be credited to Distributor on a case by case
Manufacturer is solely responsible for the performance of its duties.
(This is a suggested list and should be revised to meet the needs of the parties.)
PRICING, ORDER, PAYMENT, SHIPMENT AND ACCOUNTING
Pricing. The initial pricing for Products is provided in Attachment A. However, the pricing is subject to
change by Manufacturer at its sole discretion at any time. Such changes shall be effective upon sending notice by
Manufacturer to Distributor pursuant to Section 15.8 of this Agreement (or by email, facsimile or other means). All
pricing is quoted FOB _________ (name of city and country.) and shall include the cost of packaging and crating for
Orders. Any Order placed by Distributor shall be submitted to Manufacturer. An Order shall designate the
delivery date for at least __ days from the day such Order is submitted to Manufacturer. The Order shall not contain
a shipment date fewer than __ (_) days from the date that such Order is submitted to Manufacturer. After receiving
the Order, Manufacturer shall either reject or accept the Order in writing within ___ hours and notify Distributor of
its decision pursuant to Section 15.8 of this Agreement. Manufacture has sole discretion to determine if it will
accept such an Order. Prior to receiving an acceptance of the Order, Distributor may cancel the Order without
further obligations. Upon acceptance of any Order, it shall become a binding agreement between Distributor and
Manufacturer, wherein Distributor agrees to purchase Products set forth on the Order pursuant to the terms and
conditions in this Agreement. Should Distributor intend to either cancel or change an Order after such Order has
been accepted by Manufacturer, Manufacture has the sole discretion to determine if Manufacturer will (1) allow
such a cancellation or change, (2) impose a cancellation or change order charge, or (3) declare that Distributor has
breached the Agreement and terminate the Agreement pursuant to Section 8.2.1 of this Agreement. Furthermore,
Distributor shall meet the minimum dollar amount set forth in Attachment A. Otherwise, Manufacturer may declare
that Distributor has breached this Agreement and terminate the Agreement pursuant to Section 8.2.1 of this
Payments. For each Order, Distributor shall establish an applicable irrevocable letter of credit in favor of
Manufacturer’s bank within __ days after receipt of the acceptance of the Order from Manufacturer. The letter of
credit must be confirmed by a United States bank and for the entire amount of each shipment of the Order when
made. The letter of credit shall allow negotiation time of ___ days from the day of the Order’s confirmed shipment
date. The Order shall be paid, upon presentation of shipping documents to Distributor’s bank in ___(name of city,
country), net cash in U.S. currency.
Shipment. Distributor is liable to pay for all costs and expenses associated with the shipment of Products.
At Distributor’s request, Manufacturer may arrange for shipment of Products, with all costs and expenses associated
with the shipment paid by Distributor in accordance with Section 6.3 of this Agreement. Title and risk of loss or
damage of Products shall pass from Manufacturer to Distributor upon delivery of Product to the shipping company
or Distributor’s representative for shipment, regardless of which party makes the shipping arrangements. After the
acceptance of an Order by Manufacturer, if Distributor requests delay in shipment, any storage, insurance or other
costs incurred because of the delay shall be paid by Distributor pursuant to Section 6.3 of this Agreement. If any
90 | Page
Product is not correctly shipped due an error by Manufacturer, Manufacturer will replace such Product as promptly
as possible free of charge and freight prepaid to Distributor’s destination. (Last sentence is optional.)
Inspection of Products. Manufacturer shall inspect all Products prior to shipment to confirm that such
Products are in first-class condition. Distributor shall have the right to inspect the Products dockside in __ (name of
city, country). Manufacturer has the right to appoint a third party for inspection purpose. If Distributor discovers
any damaged or defective Products, Distributor shall notify Manufacturer within __ (_) days of such discovery.
Upon a written confirmation of an independent merchandise surveyor and a written confirmation from
Manufacturer, Distributor shall have damaged and defective merchandise repaired in __ (name of city, country) at
Payments Following Termination or Expiration. Following termination or expiration of this Agreement,
Distributor shall pay Manufacturer for Products ordered by Distributor and accepted by Manufacturer prior to the
termination or expiration within __ (__) from the date of termination or expiration, even though such Products have
not been shipped by Manufacturer.
Audit Rights. During the Term and for a period of one (1) year following the termination or expiration of
the Agreement, each party shall maintain complete, accurate and detailed books and records with respect to the
determination of its revenues and other matters associated with the performance of this Agreement. Each Party (the
“requesting party”) shall have the right, at its expense and upon prior written notice given to the other party (the
“responding party”) at least fifteen (15) days prior to the inspection date requested by the requesting party, to inspect
and audit all of the responding party’s records associated with the performance of this Agreement, and the
responding party agrees to reasonably cooperate with and provide access to the requesting party and its financial
advisors as may be necessary and appropriate for such inspection and audit.
COMPLIANCE WITH LAW
Distributor agrees that in carrying out its duties under this Agreement, Distributor will neither undertake
nor cause or permit to be undertaken any activity which to Distributor's knowledge is illegal under the laws of the
Territory or of the United States. It is a condition of this Agreement that, within __ (specify number, such as: 30)
days from execution of this Agreement and prior to the initiation of any activities with respect to any Order,
Distributor will submit to Manufacturer an opinion of Distributor's counsel, provided that such counsel and the form
and substance of the opinion shall be to Manufacturer’s satisfaction, that nothing in this Agreement prevents
Distributor from carrying out its duties in accordance with laws, decrees, rules and regulations of the Territory, and
that Distributor may act as Distributor for all Products to any government ministries, agencies and departments,
including the armed forces. The submission of this opinion is a condition precedent to the effectiveness of this
Distributor understands and agrees that Manufacturer may comply with any legal provision requiring
disclosure, or any request from the U.S. Government or the Government of the Territory to disclose, by affidavit or
otherwise, the identity of Distributor, as well as the identities of Distributor's principal and the amount of any
payment made or to be made to Distributor under this Agreement.
TERM AND TERMINATION
Term. The term of this Agreement will commence on the effective date of this Agreement and will
continue for a period of __ (__) years unless earlier terminated by either party accordance with Section __. At the
end of each Term, including at the end of the Initial Term and the Renewal Terms, this Agreement will be
automatically renewed for an additional __ (__) year period, unless either party give the other party a written notice
__ (__) days prior to the expiration of the Initial Term or any Renewal Term. All the terms and conditions contained
in this Agreement will remain the same during any renewals beyond the Initial Term, unless this Agreement is
amended or modified in written pursuant to Section __ of this Agreement. (The automatic renewal portion of the
provision is optional. Also, restrictions or conditions may be required, such as sales quota, before there will be a
Termination. In the event of any of the following, this Agreement, and the rights and licenses granted
hereunder, will terminate.
If either party defaults in the performance of or compliance with any provision contained in this Agreement or
breach any provisions set forth in this Agreement (except as otherwise provided in this Section 8) and such default
or breach is not cured within fifteen (15) days after written notice thereof is received by the defaulting party, the
party giving such notice may then give further written notice to the defaulting party terminating this Agreement, in
which event this Agreement, and the rights and licenses granted hereunder, will terminate on the date specified in
such further notice.
91 | Page
If either party discontinues its primary business for more than fifteen (15) days, either party may terminate this
Agreement upon fifteen (15) days' prior written notice to the other party. If the primary business is continued by an
Affiliate, the primary business will be deemed continued by the party for purposes of Section 8.2.2.
Either party may terminate this Agreement by written notice to the other party and may regard the other party as in
default of this Agreement, if the other party becomes insolvent, makes a general assignment for the benefit of
creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or
assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, which is not dismissed
within ninety (90) days, or has wound up or entered liquidation, voluntarily or otherwise. In the event that any of
the above events occur, the defaulting party will immediately notify the other party of its occurrence.
In the event of a breach of Distributor's obligations under Sections 7, 11, 12, 13 and/or 14, Manufacturer may
immediately terminate this Agreement in writing without providing any cure period.
If one party is unable to perform its obligations under the Agreement by reason of any law, rule, regulation or order
of any municipal, state or federal or foreign authority, including, but not limited to any regulatory authority that has
jurisdiction over that party’s business, then the either party may terminate this Agreement by given the other party a
thirty (30) day written notice.
If the performance of this Agreement becomes impracticable because of the change of the situation of the U.S., or if
the trade between the U.S. and the Territory becomes impracticable because of the change in the currency controls
renders, then either party may terminate this Agreement by given the other party a _ (_) days’ prior written notice.
Either party may terminate this Agreement without cause upon _ (_) days’ prior written notice to the other party.
Termination of the Agreement for any reason does not affect (a) obligations that have accrued as of the date
of termination; and (b) the obligations under those sections identified in Section 15.12 of this Agreement. Further,
in the event of termination, Distributor shall return Manufacturer the Confidential Information as provided in
Section 12.4 (or 12.1) of this Agreement, and Distributor’s limited license to use Manufacturer’ intellectual property
shall cease immediately.
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that:
It has the authority to enter into this Agreement and the rights and license necessary to enter into, and perform its
obligations under, this Agreement.
It is free to enter into this Agreement and is not bound by any agreements, including but not limited to nondisclosure
agreement, noncompetition agreement, documents or obligation that may infringe on its ability or in any manner
prevent it from performing any of the duties that may be required of it during the Term, or that may result in liability
to it in any manner, action, or proceeding.
It has full power and authority to execute and deliver this Agreement, and this Agreement has been duly executed
and delivered by or on behalf of itself and constitutes a legal, valid and binding obligation enforceable against it in
accordance with its respective terms. Neither the execution, delivery, nor performance of this Agreement violates or
conflicts with any applicable laws, decrees, rules, regulations, requires any notice, consent or other action by a third
party or creates a default or breach or give rise to any right of termination, cancellation or acceleration of any right
or obligation or to lose any benefit to which it is entitled under any agreement or other instrument binding upon it. It
will not take any action that would have the effect of causing the other to be in violation of any laws, decrees, rules
Manufacturer represents and warrants that it has all rights, title and interest in and to all copyrights, patents,
trademarks and other intellectual property rights associated with Products or otherwise has the right to allow the use
thereof which are necessary to use, sell, market and distribute Products, and to manufacture and sell Products
without infringing any rights; and that, as of the Effective Date, Manufacturer is not aware of any basis for third
party claims of infringement of any patents, trademarks, or tradenames with respect to Products. In the event that
92 | Page
any action, claim or suit is brought against Distributor alleging that the manufacture, use, sale or transfer of any
Product or the use of the trademarks or tradenames constitutes infringement of any proprietary rights of any third
party, Manufacturer shall indemnify Distributor pursuant to Section 10.1 of this Agreement, provided that
Distributor gives written notice of such actions or claims brought against Distributor within five (5) days from the
receipt of notice of such actions or claims, and that Distributor takes reasonable steps as may be requested by
Manufacturer to assist in the defense of such action. (The last sentence, starting with “In the event that . . .” is
Manufacturer further represents and warrants that Products shall conform in all material aspects with
Manufacturer’s written specifications for Products and are free of defects in material or workmanship. This
representation and warranty will extend for __ (months or years) from the shipment date of Products.
Manufacturer’s obligations for breaching this representation and warranty shall be limited to replacing or repairing
defective Products at Manufacturer’s choice. However, Manufacturer is not liable for any defects in Products, if
Products were used to operate in manner inconsistent with use intended by Manufacturer, or if there were
modifications or repairs made to Products by party other than Manufacturer’s personnel in manner that adversely
affects Products’ operation or reliability, or if Products were damaged because of accident, neglect or misuse by
party other than Manufacturer’s personnel.
Distributor represents and warrants that except as appropriate to carry out Distributor's duties in this
Agreement, Distributor has not, has no obligation to and will not, directly or indirectly, give, offer, pay, promise to
pay or authorize the payment of money or thing of value to any other person in connection with transactions under
this Agreement are to be paid. Distributor agrees not to take any actions that would cause Manufacturer to violate
section 103 of the Foreign Corrupt Practices Act of 1977 (15 U.S.C.A. § 78dd-l). Distributor warrants that none of
its officer, director, employee or agent is an "official" of ___ (name of country) Government as that term is defined
in section 103, nor will Distributor employ an "official" of that government.
Distributor represents and warrants that it will make and keep books, records and accounts that, in
reasonable detail, accurately and fairly reflect the transactions performed by Distributor under this Agreement and
the dispositions of Products. Distributor specifically agrees that Manufacturer may inspect such books, records and
accounts upon reasonable requests made by Manufacturer to Distributor.
INDEMNIFICATION AND LIMITATION OF LIABLITY
Indemnification. Each party (the “First Party”) hereby indemnifies and agrees to hold the other party (the
“Second Party”) and its affiliates, and its and their successors and assigns, and its and their directors, officers and
employees harmless against any and all claims, causes of actions, loss, demands, penalties, damages, costs,
judgments, attorney's fees or any other expenses incurred in connection with, caused by or relating to the First
Party’s actions or failure to act or any breach by the First Party of the terms, covenants, representations or warranties
set forth in this Agreement.
Limitation of Liability. REGARDLESS OF THE BASIS ON WHICH ANY PARTY (THE “FIRST
PARTY”) MAY BE ENTITLED TO RECOVER DAMAGES FROM THE OTHER PARTY (THE “SECOND
PARTY”), INCLUDING BUT NOT LIMITED TO, BREACH OF WARRANTY, CONTRACT OR FIDUCIARY
DUTY, FRAUD, NEGLIGENCE, MISREPRESENTATION, OTHER TORT OR INDEMNITY, THE SECOND
PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO PRODUCTS OR THE
USE THEREOF IS LIMITED TO ACTUAL, DIRECT DAMAGES THAT CAN BE PROVEN UP TO AN
AMOUNT NOT TO EXCEED THE AGGREGATE OF AMOUNT PAID BY MANUFACTURER TO
DISTRIBUTOR FOR THE SIX-MONTH PERIOD PRIOR TO THE DATE WHEN SUCH PROBLEM
OCCURRED. THE PARTY SUFFERING SUCH DAMAGES OR LOSSES MUST FIRST EXHAUST ANY
AVAILABLE LEGAL AND EQUITABLE REMEDIES AGAINST PARTIES OTHER THAN THE SECOND
PARTY. THE SECOND PARTY SHALL IN NO EVENT BE LIABLE TO THE FIRST PARTY OR ANY THIRD
PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING
LOST PROFITS, SAVINGS, REVENUES, BUSINESS OPPORTUNITIES OR BUSINESS ADVANTAGES)
UNDER THIS AGREEMENT OR IN ANY WAY IN CONNECTION WITH PRODUCTS OR THE USE
THEREOF WHATSOEVER, EVEN IF SECOND PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET
FORTH ABOVE IN THIS SECTION 10.2 SHALL NOT APPLY TO LOSSES AGAINST WHICH THE PARTIES
HAVE AGREED TO INDEMNIFY EACH OTHER PURSUANT TO THE TERMS AND PROVISIONS OF THIS
AGREEMENT OR THE DAMANAGES INCURRED BY MANUFACTURER BECAUSE OF THE BREACH OF
SECTIONS 11, 12, 13 AND 14 OF THIS AGREEMENT BY DISTRIBUTOR.
93 | Page
Disclaimer. EXCEPT OR AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH
PARTY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES OR PRODUCTS, QUIET ENJOYMENT, AS
WELL AS IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the
above limitation or exclusion may not apply.
(The sections on limitation of liability will limit the liability for both parties. If the parties or either party does not
want to set a limitation on liability, then please delete Sections 10.2 to 10.4 and delete the reference of limitation of
liability in the header. If the limitation is applicable as to one party only, then revise these sections accordingly.)
OWNERSHIP OF INTELLECTUAL PROPERTY
Manufacturer shall at all times own and retain all respective right, title and interest in and to, and is the sole
and exclusive owner of, any intellectual property rights in Products. Such right, title and interest include, but are not
limited to, all patents, copyrights, trademarks, trade names, trade dress and trade secrets, names and marks now and
subsequently used to identify Products, any proprietary information used in or applying to Products, rights of
privacy or publicity, rights to the graphical user interface, source code, object code and other intellectual property
rights. Distributor agrees that (a) the intellectual property rights in Products are Manufacturer’ property and contain
valuable proprietary materials of Manufacturer; (b) Manufacturer hereby grants a limited license to Distributor to
use the name of Product to market and sell Product in strict conformity with this Agreement; and (c) Distributor
shall not have any rights in and to the intellectual property rights in Products, except as otherwise explicitly stated in
this Agreement. If requested by Manufacturer, Distributor shall assist Manufacturer or Manufacturer's designees at
Manufacturer's expense to file any application for registration of a patent, trademark, tradename, service mark or
other trade-identifying symbol used in connection with the Products and to establish any right of prior use by
Manufacturer that may be required for the registration or protection of the patent, trademark, tradename, service
mark or other symbol under the laws of the Territory. Upon expiration or sooner termination of this Agreement,
Distributor’s limited license to use Manufacturer’ intellectual property shall cease immediately.
Confidential Information. In the course of performing its obligations hereunder, it may be necessary for
Manufacturer or Manufacturer Customers to disclose Confidential Information. Manufacturer shall be the sole
owner of the Confidential Information. Such Confidential Information is considered by Manufacturer to be
commercially valuable, confidential and proprietary including information furnished by a third party. Manufacturer
makes no representations or warranties, express or implied, with respect to any Confidential Information.
Manufacturer will not be liable for any damages arising out of use of Confidential Information by Distributor. Any
use of Confidential Information is at Distributor’s own risk. Also, nothing in this Agreement will be construed as
granting or conferring any rights by license or otherwise in Confidential Information, except for the use as expressly
provided in this Agreement.
Notice to Manufacturer re Disclosure. If, at any time, Distributor become aware of any unauthorized
access, use, possession or knowledge of any Confidential Information, or if Distributor receives any request of a
governmental agency or third party pursuant to operation of law, regulation or court order, Distributor shall (1) give
Manufacturer sufficient prior written notice of such proposed disclosure to enable Manufacturer to obtain an
appropriate protective order, if it so desires; and (2) take such reasonable steps as are available to Distributor to
prevent disclosure of such Confidential Information until the Manufacturer has been informed of such requested
disclosure and Manufacturer has an opportunity to take any necessary action to respond to such requested disclosure.
In addition, Distributor shall provide all reasonable assistance to Manufacturer to protect the confidentiality of any
such Confidential Information that Distributor may have directly or indirectly disclosed, published, or made
available to third parties in breach of this Agreement, including reimbursement for any and all attorney fees and
costs that Manufacturer may incur to protect the rights in such Confidential Information.
Nondisclosure. Distributor: (1) shall hold and maintain Confidential Information in strictest confidence
and in trust for the sole and exclusive benefit of Manufacturer; (2) shall not, without the prior written approval of
Manufacturer, use for its own benefit, publish or otherwise disclose to others, or permit the use by others for their
benefit or to the detriment of Manufacturer, any of Confidential Information; and (3) shall only disclose Confidential
Information to its employees and/or consultants with a need to know, and only if such employees and/or consultants
Documents you may be interested
Documents you may be interested