10.6. Periodic Reports. Tire Stickers may require Distributor to deliver to Tire Stickers via electronic mail to such address as may be specified by Tire Stickers, in form and substance as is reasonably acceptable to Tire Stickers, summary reports relating to Distributor’s sales activities, as well as such additional matters as Tire Stickers may require in its sole discretion. Tire Stickers may change its reporting requirements from time to time in its sole discretion.10.7. Exclusivity. During the term of this Agreement, Distributor will not promote, offer for sale or sell any products that compete, in Tire Stickers’ reasonable and sole discretion, with the Products sold hereunder.11. Term; Termination.11.1. Term. The term of this Agreement shall commence on the date first written above and shall continue until terminated as provided in Section 22.214.171.124. Termination. This Agreement may be terminated as follows:11.2.1. At-will. At any time after December 31, 2018, this Agreement may be terminated by either party by delivery of at least 60 days’ prior written notice to the other party. 11.2.2. Failure to Achieve Sales Target. Beginning with calendar year 2015 and thereafter, if Distributor fails to achieve a Sales Target, Distributor will lose its rights hereunder and Tire Stickers will have the right to terminate this Agreement upon at least 30 days’ notice to Distributor. Tire Stickers’ rights pursuant to this Section 11.2.2 are subject always to the provisions of Section 15.3 of this Agreement. Tire Stickers’ right of termination pursuant to this Section 11.2.2 may be exercised in Tire Stickers’ sole and absolute discretion as long as Tire Stickers shall: (i) permit Distributor during the 90 day notice period to make written submissions in support of Distributor’s continued service and (ii) consider and analyze relevant trading information and data, including national economic conditions and relevant trading conditions, then prevailing when making its termination assessment.11.2.3. Breach. If, at any time, either party commits a material breach of its obligations hereunder (including any breach by Distributor of any of its covenants under Section 10), the non-breaching party may, in addition to all other remedies available to it at law and in equity, terminate this Agreement by written notice to the breaching party, which notice shall identify and describe the basis for such termination as long as such termination does not occur if the breaching party has cured such breach (if curable) within 30 days from the date of receipt of such notice.11.2.4. Suspension for Breach.Except with respect to any payments due by Distributor to Tire Stickers, whether for the purchase of Products or otherwise, and Distributor’s covenants under Section 10, upon providing notice of a material breach under Section 11.2.3, the non-breaching party may, at its option, in lieu of terminating this Agreement, suspend all of its obligations hereunder until such material breach is cured.11.3. Post-Termination. Following the expiration or earlier termination of this Agreement for any reason, on the expiration or earlier termination of this Agreement, except for termination by Tire Stickers for Section 11.2.2 or Section 11.2.3, Distributor may, in accordance with the applicable terms and conditions of this Agreement, sell off its existing inventories of Products for a period of three months following the last day of the Term (“Post-term Sale Period”).12. Confidentiality; Non-Solicitation.12.1. Confidential Information. Distributor acknowledges that, from time to time during the term of this Agreement, it shall acquire or gain access to confidential and proprietary information of Tire Stickers regarding Tire Stickers’ business and operations, including (without limitation) non-public Product information and pricing, contract terms (including the terms of this Agreement), non-public Product warranty terms or procedures, sales, or other financial performance data, Tire Stickers customer lists, training materials and protocols and other information that a reasonable person would conclude to be confidential and proprietary to Tire Stickers (collectively, “Confidential Information”). Distributor acknowledges that all such Confidential Information is the exclusive property of Tire Stickers and constitutes confidential and proprietary information of Tire Stickers, that disclosure of such information to Distributor is being made only because of the position of trust and confidence that Distributor occupies because of its agreement to the restrictions contained in this Section 12.1, that Distributor’s knowledge of such information could enable Distributor to unfairly compete with Tire Stickers in a manner likely to cause Tire Stickers irreparable harm, that disclosure of such information to third parties would similarly cause irreparable harm to Tire Stickers, and that the restrictions imposed upon Distributor’s receipt, use, and disclosure of such information are reasonable.12.2. Prohibition on Disclosure and Misuse of Confidential Information. Distributor hereby covenants and agrees that, without the prior written consent of Tire Stickers, Distributor shall not, nor shall it cause or permit any of its affiliates, employees, or agents to, directly or indirectly, disclose to any person or entity or use for its own account or benefit or for the account or benefit of any other person or entity any Confidential Information; provided, however, that the foregoing restriction shall not apply to (i) information that Distributor can demonstrate with reasonable evidence is generally known to, and available for use by, the public other than as a result of the breach of this Agreement or any other agreement pursuant to which Distributor or any other person or entity owes any duty of confidentiality to Tire Stickers or previously owed any duty of confidentiality to Tire Stickers, (ii) information that is required to be disclosed pursuant to applicable law or a court or arbitrator’s order, or (iii) disclosure by Distributor that is reasonably necessary for Distributor to exercise its rights or satisfy and perform its covenants and obligations under this Agreement. Distributor’s covenants under this Section12.2 shall survive the termination of this Agreement indefinitely.12.3. Non-Solicitation of Tire Stickers Employees. During the term of this Agreement and for a period of one year following the expiration or earlier termination hereof, Distributor shall not induce or encourage (or attempt to induce or encourage) any employee of Tire Stickers to terminate his or her employment with Tire Stickers, whether for purposes of employing or contracting with any such employee or for any other reason, or otherwise interfere in any way with the relationship between Tire Stickers and any such employee.13. Warranties; Limitation of Liability.13.1. LIMITATION OF WARRANTIES. TIRE STICKERS’ WARRANTIES WITH RESPECT TO ITS PRODUCTS ARE LIMITED TO THE WRITTEN WARRANTIES PROVIDED WITH SUCH PRODUCTS UPON SALE, A CURRENT COPY OF WHICH IS ATTACHED AS SCHEDULE E BUT WHICH REMAINS SUBJECT TO CHANGE FROM TIME TO TIME BY TIRE STICKERS. TIRE STICKERS EXPRESSLY DISCLAIMS ANY OTHER WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. AS PROVIDED IN SECTION 5, DISTRIBUTOR SHALL BE SOLELY RESPONSIBLE FOR ADDRESSING, SERVICING AND REMEDYING ALL WARRANTY CLAIMS BROUGHT BY CUSTOMERS OF THE PRODUCT, AT DISTRIBUTOR’S SOLE COST, AND IN NO EVENT SHALL TIRE STICKERS BE LIABLE FOR ANY CLAIM AGAINST DISTRIBUTOR BY ANY CUSTOMER OR OTHER THIRD PARTY.13.2. GENERAL LIMITATION OF LIABILITY. IN NO EVENT SHALL TIRE STICKERS BE LIABLE FOR ANY LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF TIRE STICKERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.14. Indemnification. Distributor shall indemnify and hold harmless Tire Stickers, its subsidiaries, affiliates, customers, and their directors, members, owners, employees, successors and assignees from and against any losses, damages, claims, demands, suits, liabilities and expenses (including court costs and reasonable attorneys’ fees) (collectively, “Loss”) that arise out of or result from (i) any acts or omissions of Distributor, its agents or employees (collectively, “Representatives”) or from any failure of Distributor or its Representatives to perform its obligations under this Agreement; (ii) any performance or non-performance by Distributor or its Representatives under this Agreement resulting, in whole or in part, in any damage to property, injury to, or death of persons, including those resulting from the use of any motor vehicle or other equipment or property; (iii) the failure of Distributor to comply with any applicable laws, rules, and regulation; and (iv) Distributor’s failure to procure and maintain all licenses and permits necessary to the performance of its business and its obligations hereunder, or in any way related to the breach by Distributor of its representations, warranties or covenants hereunder. Distributor will give Tire Stickers prompt written notice of any such claim of loss, liability, damage, or fine of which it becomes aware. Distributor shall, unless Tire Stickers expressly elects to the contrary, assume the investigation, defense, or settlement of any action, at its own expense, with counsel reasonably satisfactory to Tire Stickers. Distributor shall not settle any such claim without Tire Stickers’ written consent unless such settlement contains a complete release of Tire Stickers from any liability.15. General Provisions.15.1. Recall of Products.15.1.1. If a Product, because of a defect that existed at the time of delivery to Distributor, is subject to a recall that is initiated by Tire Stickers, Tire Stickers shall reimburse Distributor for any reasonable out-of-pocket costs and expenses paid by Distributor to the extent they arise from such recall. Tire Stickers will promptly replace any recalled Products with conforming Products.15.1.2. With respect to any recall of Products, Distributor agrees to assist Tire Stickers in developing a withdrawal or recall strategy and to work with Tire Stickers and all applicable governmental agencies in monitoring any recall operation and in preparing such reports as may be required.15.2. Relationship of Parties. The parties hereby agree that they are independent contractors. Neither party is to be considered an agent or employee of the other party for any purpose other than as expressly set forth herein. Nothing in this Agreement is intended, nor shall be construed, to create an employer-employee, partnership, or joint venture relationship, or allow either party to exercise control or direction over the manner or method by which either party performs its services which are the subject of this Agreement, except as specifically stated herein. Neither party nor its employees shall be entitled to any of the benefits that the other party provides for its employees Each party shall be liable for its own debts, obligations, acts, and omissions, including the payment of all required withholding, social security, and other taxes or benefits.15.3. Force Majeure. The parties shall not be liable hereunder for failure or delay of performance of obligations under this Agreement (other than payment of moneys) due to causes arising from or attributable to acts, events, omissions, or accidents beyond reasonable control of such party, including, but not limited to, acts of God, strike, lockout, labor disputes, shortage of transportation, embargo, prohibition of import or export of the Products, governmental orders or restrictions, shortage of materials or labor, utility or communication failure, war, fire, explosion, sabotage, storm, flood, earthquake, or epidemics. The party affected by the force majeure shall promptly notify the other party hereof. If any of these causes, prevents, or delays performance for more than 90 consecutive days or for more than 180 days in any calendar year, either party hereunder may terminate this Agreement, effective immediately on written notice to the other party.15.4. Assignment; Successors and Assigns.Distributor may not assign, delegate, or cause to be assumed any of its rights or obligations hereunder without the prior written consent of Tire Stickers, and any such purported assignment, delegation, or assumption without such consent shall be void ab initio. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing contained in this Agreement is intended to confer upon any third party any rights, benefits, or remedies of any kind or character whatsoever, and no third party shall be deemed a third party beneficiary under or by reason of this Agreement.15.5. Notices.Any notice, report, approval, or consent required, or permitted hereunder, shall be in writing and shall be deemed given when personally delivered or delivered by courier to the address of the party to be notified, (as listed in the signature lines of this Agreement), or such other address, as such party last provided to the other by written notice.15.6. Waiver; Remedies Cumulative. The rights and remedies of the parties hereunder are cumulative and not alternative. Neither any failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or any of the documents referred to in this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. No waiver or renunciation of a party’s right or claim under this Agreement shall be valid unless made in writing, specifying the right or claim so waived and signed by such party.15.7. Governing Law; Venue.This Agreement shall be governed by, and interpreted under, the laws of the State of California, U.S.A. without giving effect to principles of conflict of laws that would require the application of any other law. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be instituted only in a state or federal court sitting in Los Angeles County, California, U.S.A., and the parties hereby irrevocably submit to the exclusive jurisdiction of such courts. THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED AND SHALL NOT APPLY TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.15.8. Injunctive Relief.Distributor acknowledges and agrees that (i) the provisions of Section 11.3 are reasonable and necessary to protect the legitimate business interests of Tire Stickers, (ii) any breach by Distributor of its covenants contained in Section 11.3 would result in irreparable injury to Tire Stickers, the exact amount of which may be difficult, if not impossible, to ascertain or estimate, and (iii) the remedies at law for any such breach would not be reasonable or adequate compensation to Tire Stickers for such breach. Accordingly, notwithstanding any other provision of this Agreement, if Distributor, directly or indirectly, breaches any of its covenants under Section 11.3, then, in addition to any other remedy which may be available to Tire Stickers, at law or in equity, Tire Stickers shall be entitled to injunctive relief against Distributor, without posting bond or other security, and without the necessity of proving actual or threatened damage or harm.15.9. Attorney Fees and Cost of Dispute.If either party breaches this Agreement, and the other party employs attorneys to enforce or interpret the terms of this Agreement, or to obtain a declaration of rights under this Agreement, whether or not legal proceeding are commenced, then such non-breaching party shall be entitled to recover from the breaching party all costs, expenses, and reasonable attorney’s fees incurred in connection with such breach.15.10. Entire Agreement; Modification.This Agreement and the attachments hereto, as amended, constitute the entire agreement between the parties with respect to the subject matter hereof. To the extent any conflict exists between the provisions of this Agreement and the provisions appearing at any time on any purchase order, the provisions of this Agreement shall govern unless otherwise specified in writing by Tire Stickers. This Agreement may only be amended by the written agreement of the parties.15.11. Severability. If any provision contained in this Agreement or any application thereof shall be determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and other applications thereof shall not in any way be affected or impaired thereby.15.12. Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf delivered via email), all of which shall be considered one and the same agreement.15.13. Language. This agreement is drafted in the English language. If this agreement is translated into any other language, the English language text shall prevail. Also, any notice given under or in connection with this agreement shall be in the English language.
Schedule ADefinitionsCapitalized terms appearing in the Agreement and schedules have the meanings set out in this Schedule A or in the section in which they first appear in the Agreement:“Agreement” has the meaning set forth in the preamble.“Business Day” means any day except Saturday, Sunday, U.S. federal holiday, or California state holiday.“Confidential Information” has the meaning set forth in Section 12.“Customer” means a purchaser of Products that is located in the Territory who is (a) a subdistributor or reseller approved by Tire Stickers or (b) an end user.“Defective” means not conforming to the warranties in Schedule E.“Distributor” has the meaning set forth in the preamble of the Agreement.“Effective Date” has the meaning set forth in the preamble.“Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.“Intellectual Property” means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world. As used in the definition of “Intellectual Property”, the following terms have the following meanings:“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models);“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world; and “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.“Loss” has the meaning set forth in Section 14 of the Agreement.“Post-term Sale Period” has the meaning set forth in Section 11.3 of the Agreement. “Products” means those goods that are identified in Schedule B, as may be amended by Tire Stickers in accordance with the terms of the Agreement.“Records” has the meaning set forth in Section 5.“Representatives” has the meaning set forth in Section 14 of the Agreement.“Sales Target” means the number of Products that should be sold by Distributor in the period of time specified or the total dollar amount of Products sold by Distributor in the period of time specified in Schedule G. “Term” has the meaning set forth in Section 11.1 of the Agreement.“Tire Stickers” has the meaning set forth in the preamble of the Agreement.
Schedule CIntellectual PropertyRegistered trademarks for Tire Stickers, Tire Decals, Tire Labels and all other trademarksPatents granted and pending for Peel and Stick and Raised Rubber Lettering products
Schedule EProduct Warranty In Effect on Effective Date
Tire Stickers provides a limited warranty for physical goods purchased directly from Tire Stickers only. This warranty covers defects in material under normal use during the warranty period. The warranty period is defined as 90 days from purchase. Tire Stickers will repair or replace at no charge products that are deemed to be defective due to material or workmanship. This limited warranty does not cover conditions, malfunctions or damage during customer handling, application or use. This warranty also does not cover incorrect information entered by the custom during the order process. In order to qualify for the limited warranty, customer must contact Tire Stickers directly for an evaluation of the claim and from this an appropriate action will be taken to correct the situation.
Schedule FPricingDistributor will receive 35% discount off retail prices quoted or listed on Tire Stickers’ website. This discount will remain based on sales targets in Schedule G. Should a single order retail price exceed $1000 in one purchase, Distributor will receive 40% off retail price. Should a single order retail price exceed $2000 in one purchase, Distributor will receive 45% off retail price. Should a single order retail price exceed $3000 in one purchase, Distributor will receive 50% off retail price. Freight and applicable taxes, payment fees, etc. are the sole responsibility of the Distributor.
Schedule GSales Targets
Year 1 Sales Target (18 month period)The Year 1 Sales Targets are as follows:TBDYear 2 Annual Sales TargetThe Year 2 Sales Targets are as follows: TBDYear 3 Annual Sales TargetThe Year 3 Sales Targets are as follows: TBDSales Targets for future years shall be mutually agreed upon between the parties pursuant to Section 3.14 of the Agreement.Achievement of the Sales Targets shall be calculated based on [the amount invoiced to and paid by Distributor for Products, exclusive of any shipping costs, taxes, or other expenses included therein.