CONCEALMENT EXPRESS DEALER AGREEMENT
The Dealer and Concealment Express, LLC (the “Company”) agree as follows:
1. Sale of Products. Company agrees to sell to Dealer, on a non-exclusive basis, KYDEX™ IWB Holsters and other similar products under the “Concealment Express” brand (the “Products”) for resale by the Dealer within the agreed-upon territory, in accordance with the terms contained herein. The Products are subject to modification and/or discontinuation by the Company at its discretion. Dealer hereby acknowledges and agrees that all warranties, rights, and remedies in respect of the Products are subject and limited to those contained the Company’s standard warranty policies of the Products as in effect from time to time. With respect to the Products sold hereunder, the Dealer acknowledges and agrees as follows: (i) the Products shall be sold with the “Concealment Express” name and logo; (ii) the Products shall be displayed on “Concealment Express” racks or other displays which may be approved by the Company, in its sole discretion; (iii) all advertising and marketing of the Products shall be through Company-provided marketing materials and/or as otherwise approved by the Company; and (iv) Company may list Dealer as an authorized dealer of its Products on the “Concealment Express” website, listing contact information for the Dealer, including Dealer’s website and phone numbers.
2. Term; Termination. The term of this Agreement is for a period of 1 year commencing on the date hereof, unless sooner terminated as provided in Section 3 herein. This Agreement may be renewed for additional periods of 1 year by mutual written agreement of the parties prior to the end of the initial term or any successive term thereafter. The initial term and any successive or renewal term shall be the “Term.” Either party may terminate this Agreement by providing the other party 30 days prior written notice. This Agreement may also be terminated by the Company immediately due to a breach of the terms of this Agreement by Dealer. Upon termination or expiration of this Agreement: (a) Dealer shall immediately discontinue the use of the trademark “Concealment Express” and any and all other Company trade names and trademarks; and (b) all payment obligations of Dealer to the Company shall be immediately due and payable, but in no event shall payment be made later than 30 days following the termination date.
3. Obligations of the Dealer. In addition to all other covenants and agreements of the Dealer hereunder, the Dealer covenants and agrees as follows: (i) to provide and pay, at its expense, all materials and services incurred and used in the sale of the Products, and all taxes and other costs it incurs in carrying out the obligations under this Agreement; (ii) to not misrepresent or make any false or untrue claims with regard to function and use of the Products or make any additional representations or warranties, or to incur any additional obligation on behalf of Dealer or the Company with regard to the Company’s warranty policy; (iii) to comply with all applicable laws and regulations in all jurisdictions where it sells the Products; and (iv) obtain and maintain all regulatory authorizations and licenses required for the sale of the Products.
4. Product Sales Price and Sales Terms. Orders of Products shall be placed by written purchase order on the form provided by the Company and signed by Dealer. The purchase order will include terms of the purchase, including purchase price for the purchase of the Products from the Company and payment terms, and other terms including the sales price for the Dealer’s sale of the Products to its customers, which shall in all cases be greater than or equal to the minimum advertised “Concealment Express” price (“MAP”) with respect to the applicable Products, to be set by the Company from time to time (the “Dealer Sales Price”). All orders are subject to availability of the Products, and are subject to any recalls by the Company. All Product sales are final, provided that returns of any defective Product may be made pursuant to the Company’s applicable warranty.
5. Restrictive Covenants. During the Term of this Agreement and for a period of 1 year following the termination or expiration of this Agreement, Dealer shall not, directly or indirectly, within the world (i) sell, market, and/or distribute any product with a design function and/or features that are substantially similar to the Products of the Company, unless otherwise approved in advance in writing by the Company; (ii) sell, market, or advertise the Products for sale in any marketplace where the Company sells the Products, including but not limited to the online sites and/or stores of Amazon, Walmart, EBay, Etsy, and/or Jet and other websites and/or marketplaces where the Company sells the Product; (iii) sell, market, or advertise the Products as a price other than the Dealer Sales Price (i.e., all sales must be at a price greater than or equal to the MAP as set forth in Section 4); or (iv) reverse engineer or otherwise manufacture products similar to the Products or aid others in so doing. For clarification purposes, it is understood by the Company that the Dealer may sell other gun holsters that are not substantially similar to the Company’s Products and such sale shall not be in violation of the terms of this Agreement. The terms and conditions pursuant to this Section 5 shall apply to all of its officers, directors, employees, consultants, agents, partners, joint venturers, or otherwise. The Dealer agrees that the foregoing covenants are appropriate and reasonable when considered in light of the nature and extent of the business conducted by the parties.
6. Confidentiality; Rights to Proprietary Information.
(a) The Dealer will have access to data, specifications, training, and any other know-how related to the design, implementation, performance, manufacture, or cost of the Products and other confidential and proprietary information of the Company (collectively, the “Confidential Information”). The Dealer agrees to and shall maintain and keep in confidence all Confidential Information of the Company, including the terms of this Agreement and/or any purchase order, and information contained therein.
(b) The Company has manufactured and distributed the Products through the world itself and/or through its licensees, and/or other distributors. The Products hereunder have become closely associated with the trade name of “Concealment Express” and other trademarks, trade names, trade dress, logos, and proprietary information (the “Proprietary Information”) as the Company has designed, developed, and/or owned. Dealer acknowledges the validity of the rights of the Company in and to the Company’s Proprietary Information associated with the Products and agrees not to challenge or contest the validity of the Company’s rights in such Proprietary Information or to aid others to do so. Dealer agrees that all such Proprietary Information shall remain the sole property of the Company.
7. Agents of Dealers. Dealer may carry out the duties undertaken by the Dealer hereunder either directly or through the use of agents, employed and/or engaged by Dealer; provided, however, that the Company shall in no way be responsible to, or be considered to be in privity of contract with, any such agent of Dealer.
8. Indemnity. Dealer hereby indemnifies, defends, and holds harmless the Company, its officers, directors, members, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”), from and against any and all obligation, liability, claim (including, but not limited to third party claims), cause of action, or matter whatsoever which may be claimed, filed, or brought against the Indemnified Parties arising out of or as a result of any act, representation, statement, or other thing made or done by the Dealer or any party working on behalf of or employed or engaged by the Dealer, including but not limited to (i) violation of any federal, state, or local laws, regulations, ordinances, or administrative orders or rules of the United States, its territories, or any other country in which the Products are sold or delivered relating to the sale of the Products by Dealer; (ii) the failure of Dealer to comply with any provision of this Agreement; or (iii) the breach of any of the representations, warranties, and/or covenants of this Agreement by the Dealer. Dealer further agrees to indemnify, defend, and hold the Indemnified Parties harmless against any and all expenses and losses which the Indemnified Parties may incur as a result of any indemnification event provided hereinabove, including attorney’s fees, and/or other costs and expenses. The Company shall have the sole and absolute right to settle any and all such claims, demands, or things indemnified hereunder in the Company’s reasonable discretion.
9. Representations and Warranties. Dealer represents and warrants to the Company that: (i) Dealer is duly organized, validly existing, and in good standing under the laws of the state of its incorporation/organization and has full power and authority to enter into this Agreement and consummate the transactions contemplated herein, and the execution hereof and the performance by Dealer in accordance with the terms hereof will not violate any contract, agreement or covenant to which the Dealer is bound or subject; (ii) Dealer has the capacity, expertise, and experience to carry out its duties hereunder; and (iii) Dealer acknowledges that except as set forth in this Agreement, the Company has not made any representation or warranties with respect to the Products, the market therefore or otherwise. Dealer further acknowledges that it is familiar with the Products (as well as competitive products) and the Product market, and is entering into this Agreement in reliance on its own knowledge and information and not on the basis of any representation or warranty of the Company.
10. Miscellaneous Provisions.
(a) Specific Performance. Dealer agrees that damages at law will be an insufficient remedy to the Company in the event that Dealer breaches the terms of this Agreement, and that the Company shall be entitled to obtain injunctive relief to enforce the provisions of this Agreement, in addition to any other rights or remedies available to it.
(b) Severable. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.
(c) Independent Contractor. Nothing contained in this Agreement shall be construed to constitute Dealer as a partner, employee, or agent of the Company, nor shall either party have any authority to bind the other.
(d) Assignment. This Agreement shall not be assigned by Dealer without the prior written consent of Company. The Company may assign any or all of its rights and interests hereunder to its successor or assign, and all provisions hereunder shall be enforceable by and inure to the benefit of such successor and/or assign, whether by merger, sale of assets, or otherwise.
(e) Applicable Law. This Agreement shall be enforced under the laws of Florida and venue for any litigation shall be appropriate in Duval County, Florida.
(f) Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties and supersedes all existing agreements or arrangements between the parties relating to the terms hereof. Any amendments to this Agreement must be made in writing, signed by both parties.
(g) Attorneys’ Fees. In the event that enforcement of this Agreement is required, the substantially prevailing party in any such action shall be entitled to its legal costs and reasonable attorneys’ fees arising from such enforcement of this Agreement.
(h) Survival. The obligations of Dealer under this Agreement will survive the expiration or termination of this Agreement.
(i) Negotiated Document. The parties acknowledge and agree that this Agreement has been negotiated by each with the assistance of independent counsel, or an opportunity for counsel to assist and review the same.
(j) Binding on Successors. This Agreement shall be binding on the agents, employees, heirs, successors and assigns of the parties hereto.