Authorized Dealer Agreement
Both Air Oasis and the Dealer agree as follows:
1. Appointment and Term.
Subject to the terms and conditions set forth herein, Air Oasis hereby appoints Dealer and Dealer hereby accepts appointment as an Air Oasis Authorized Dealer. This appointment is nonexclusive. Air Oasis has the right to discontinue the distribution of or availability of any Air Oasis products without notice. The term of this Agreement and of Dealer’s appointment hereunder shall commence as of the date of this Agreement and continue until terminated by either party.
2. Dealer Rights and Restrictions.
Dealer shall have the right to purchase Air Oasis products from Air Oasis so long as it remains in compliance with all of the following conditions:
(i) Dealer distributes only pursuant to the terms and conditions of sale. (ii) Dealer distributes the Air Oasis products solely in the form obtained from Air Oasis. (iii) Dealer sells only replacement parts obtained from Air Oasis. (iv) Dealer provides adequate service and support in connection with the distribution of the Air Oasis products.
3.1 Dealer Order. The terms and conditions of this Agreement shall apply to all orders submitted to Air Oasis and supercede any different or additional terms on Dealer’s purchase orders. Orders issued by Dealer to Air Oasis are solely for the purpose of requesting delivery dates and quantities. All orders placed hereunder for the Air Oasis products for fulfillment by Air Oasis shall be subject to acceptance by Air Oasis at its principal place of business. Air Oasis shall use reasonable efforts to make deliveries promptly of orders so accepted, but Air Oasis shall not be liable for any damages to Dealer or any other person for Air Oasis’s failure to fill any orders, or for any delay in delivery or error in filling any orders for any reason whatsoever. If orders for the Air Oasis products exceed Air Oasis’s inventory, Air Oasis shall allocate available inventory on a basis Air Oasis, in its absolute discretion, deems equitable.
3.2 Price. The price to Dealer of the respective Air Oasis products ordered by Dealer from Air Oasis shall be calculated as (i) the minimum advertised price set forth in Air Oasis’s Price List, (ii) less the then-current published Air Oasis Authorized Dealer Discount, (iii) plus the appropriate amount for shipping. Air Oasis reserves the right, without prior notice, to revise the Price List, the Air Oasis Authorized Dealer Discount, and the shipping costs. The price of Air Oasis products to Dealer shall be calculated with reference to the Price List, Air Oasis Authorized Dealer Discount, and shipping costs in effect on the date of each Air Oasis shipment to Dealer.
3.3 Shipments. All shipments will be made F.O.B. Amarillo, Texas. Delivery will be deemed complete, and risk of loss or damage to the Air Oasis products will pass to Dealer upon delivery to the carrierif product is shipped via Dealer’s carrier. If Air Oasis carrier is used any and all damage will be covered by Air Oasis.
3.4 Payment. Payment for the Air Oasis products ordered from Air Oasis and shipping costs shall be due at the time of the order by check or other means satisfactory to Air Oasis. Air Oasis may, in its sole discretion, grant credit approval, in which case all payments shall be due within thirty (30) days after date of Air Oasis’s invoice. The invoice date shall be before the actual date of shipment. All sums not paid when due shall accrue interest daily at the lesser of an annual rate of 18% or the highest rate permissible by law on the unpaid balance until paid in full. Until paid in full, Air Oasis shall remain the lienholder of Air Oasis products. Air Oasis reserves the right to terminate or modify the terms of credit payments when, in its sole discretion, Air Oasis believes that its payments may be at risk
3.5 Restocking. Except as otherwise provided in this Agreement, Dealer may not return unused Air Oasis products obtained from Air Oasis to Air Oasis without Air Oasis’s express authorization and subject to the following restocking procedure (which is subject to change, at Air Oasis’s sole discretion): (i) Dealer must provide Air Oasis with original sales order, number(s) of the unit(s) to be returned and obtain a “return of merchandise authorization“ (RMA) number from Air Oasis prior to returning any Air Oasis products. (ii) Returns are subject to a minimum 5% restocking fee . The amount of the restocking fee is subject to the condition of the Air Oasis products upon return. All amounts due to Dealer by Air Oasis under this provision shall be payable solely as a credit toward future purchases of Air Oasis products from Air Oasis and shall not be payable in cash.
In addition to any payments due to Air Oasis under this agreement, Dealer shall pay amounts equal to any taxes or other amounts, including state sales taxes, however designated, which are levied or based upon such payments, or upon this Agreement. Dealer agrees to provide Air Oasis with a state resale certificate, if required by state.
5. Dealer Obligations.
Marketing. (i) Dealer agrees to use its best efforts to market and distribute Air Oasis products to end-users and agrees that its marketing and advertising efforts will be of high quality, in good taste, and will preserve the professional image and reputation of Air Oasis and Air Oasis products. (ii) Dealer will include in all its advertisements, brochures and other marketing materials referring to Air Oasis or to an Air Oasis product all applicable copyright and trademarks. Air Oasis will provide a reasonable amount of advertising material, as requested by Dealer, for use in Dealer’s efforts to market the Air Oasis products. (iii) Dealer is required when advertising Air Oasis products to advertise at Minimum Advertised Price (MAP) or higher, as set forth by the Air Oasis Price List. No advertised discounting of any kind is permitted unless suggested by Air Oasis.
6. License to Use the Air Oasis Trademark; Nongeneric Advertising.
6.1. Air Oasis hereby grants to Dealer a nonexclusive, limited license to use “Air Oasis,” both the name and in the stylized form used by Air Oasis, and the applicable product trademarks solely in its distribution, advertising, and promotion for the Air Oasis products. Dealer’s use shall be in accordance with Air Oasis’s policies regarding advertising and trademark usage established from time to time. Dealer agrees not to attach any additional trademarks, logos, or trade designations to the Air Oasis products. Dealer further agrees not to affix any Trademarks to products other than the genuine Air Oasis products.
6.2 Quality. Dealer agrees that the nature and quality of any products or services Dealer supplies in connection with the Trademarks shall conform to the standards set by Air Oasis. Dealer agrees to cooperate with Air Oasis in facilitating Air Oasis monitoring and control of the nature and quality of such products and services, and to supply Air Oasis with specimens of use of the Trademarks upon request.
6.3 Use of Trademarks. Dealer shall not use the name “Air Oasis” – or any other trademark owned by the Air Oasis Company – or combination of words containing the trade names or trademarks of the Dealer or the Dealer’s business partners as part of the Dealer’s firm or business name. The Dealer’s use of the trade names and trademarks of the Seller shall be limited to the promotional literature, brochures, and catalogues supplied by Air Oasis and advertising for the products and as specified in article 6.1 (Marketing).
7. Ownership of Proprietary Rights and Nondisclosure.
Dealer acknowledges that the structure and organization of Air Oasis products is proprietary to Air Oasis and that Air Oasis retains exclusive ownership of the Air Oasis products and the Trademarks. Dealer will take all reasonable measures to protect Air Oasis’s proprietary rights in the Air Oasis products. Except as provided herein, Dealer is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, franchises, or licenses with respect to Air Oasis products. Dealer may be exposed to certain information concerning Air Oasis products and proposed new Air Oasis products, which are Air Oasis’s confidential and proprietary information (herein “Confidential Information”). Dealer agrees that, during and after the term of this Agreement, it will not use or disclose to any third party Confidential Information without the prior written consent of Air Oasis, except Dealer may disclose the Confidential Information to its employees as is reasonably necessary to allow Dealer to perform under this Agreement and to obtain the benefits thereof. This paragraph shall not apply to proposed new Air Oasis product information after such information is made public by Air Oasis.
8.1 Limitations and Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN AIR OASIS USER MANUALS, AIR OASIS MAKES NO OTHER WARRANTIES RELATING TO THE AIR OASIS PRODUCTS EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRIGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF AIR OASIS PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION AND IN THE AIR OASIS PROMOTIONAL LITERATURE. RESELLER SHALL MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF AIR OASIS.
8.2 Indemnity. Dealer shall indemnify and hold Air Oasis harmless from any claims or damages (inclusive of Air Oasis’s attorneys’ fees) made against Air Oasis as a result of negligence, misrepresentation, error, or omission on the part of Dealer or its representatives. Dealer shall be solely responsible for any claims, warranties, or representations made by Dealer or Dealer’s employees or agents that differ from the warranty provided by Air Oasis in its Air Oasis Product Manuals.
9.1 Without Cause. This agreement may be terminated at any time by either party without cause upon thirty (30) days prior written notice.
9.2 With Cause. (i) Air Oasis may terminate this Agreement upon ten (10) days written notice of a material breach of this Agreement if such breach is not cured within such ten (10) day period. (ii) Notwithstanding the above, Air Oasis may terminate this Agreement immediately, upon written notice, for breach of Article 2 (Dealer Rights and Restrictions), 6 (License to Use the Air Oasis Trademark; Nongeneric Advertising), or 7 (Ownership of Proprietary Rights and Nondisclosure). (iii) Air Oasis may immediately terminate this Agreement after giving written notice if Dealer shall become insolvent or fail to pay its obligations as they arise or upon any proceeding being commenced by or against Dealer under any law providing relief to Dealer as debtor.
9.3 Rights Upon Termination. Upon termination of this Agreement: (i) Dealer will no longer be an Air Oasis Authorized Dealer. (ii) Dealer shall immediately cease using the Trademarks and discontinue all representation that it is an Air Oasis Authorized Dealer. (iii) Air Oasis shall be entitled to (1) reject all or part of any orders received from Dealer after notice but prior to the effective date of termination and/or (2) require Dealer’s performance of any outstanding orders notwithstanding the fact that delivery dates for such orders may extend beyond the effective date of termination.
10. Consequential Damages Waiver.
AIR OASIS WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF AIR OASIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Notices. Any notices permitted or required under this Agreement shall be in writing, and shall be delivered in person or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail.
11.2 Assignment. This agreement may not be assigned by Dealer without the prior written approval of Air Oasis. Air Oasis’s rights and obligations in whole or in part under this Agreement may be assigned by Air Oasis.
11.3 Exclusivity. No exclusive selling rights are granted to the Dealer.
11.4 Waiver. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be constructed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
11.5 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
11.6 Controlling Law. This agreement shall be governed in all respects by the laws of the State of Texas as such laws are applied to agreements entered into and to be performed entirely within Texas and Texas residents.
11.7 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
11.8 Address Change. The addition to or change in the Shipping Address from the address first set forth shall require prior written approval of Air Oasis.
11.9 Forum. All disputes arising under this Agreement shall be brought in Superior Court of the State of Texas or Federal District Court as permitted by law.
11.10 Counterparts. This Agreement may be signed in two counterparts, which together form a single agreement as if both parties had executed the same document.
11.11 Entire Agreement. This Agreement completely and exclusively states the Agreement of the parties regarding its subject matter it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This agreement shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of Air Oasis and Dealer by their duly authorized representative, and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void.
11.12 Warranty. DEALER WARRANTS THAT IT HAS FULL POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT, AND THE PERSON SIGNING THIS AGREEMENT ON THE RESELLER’S BEHALF HAS BEEN DULY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT. RESELLER FURTHER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT WHEREOF, the parties have executed this Agreement as of the date set forth above.
Last updated: 5/1/15