Terms and Conditions

That the parties agree as follows:

Introduction and Purpose:
TRUAUDIO manufactures and/or sells high quality audio speaker systems and equipment and desires to appoint “Dealer” to promote and sell for the company, the products described on Exhibit “A” attached hereto (“products”). It is the purpose of this agreement to set forth the terms and conditions which will govern the appointment of the Dealer by TRUAUDIO and to supersede and terminate all previous agreements, if any exist, between the Manufacturer relating to the distribution and sale of the manufacturers products.
Definitions:
As used herein, the following terms have indicated meanings: Dealer: “Dealer” shall mean dealer and all its sales personnel, if any. Product: “Product” shall mean any product manufactured, distributed, produced or otherwise marketed by Manufacturer. Product Territory: “Product Territory” shall mean the geographical area in which dealer is entitled to market and sell product, as evidenced by these in current schedule, particularly described in 3 (b) below. Purchase Order: “Purchase Order” shall mean a written order for the purchase of a product or products from Manufacturer and shall be Manufacturer’s form of purchase order or such other form as such reasonably satisfactory to Manufacturer. Customer: “Customer” shall mean any persons or entity located in the product territory who shall have placed or may reasonably be expected to place a purchase order or the purchase of any product. Net Billings: “Net Billings” shall mean the amounts due and owing pursuant to invoices arising out of purchase orders, plus the following:
1. Replacement of damaged, lost or stolen product;
2. Service charge for labor, parts or repair;
3. Parts sales;
4. Freight, handling, and shipping charges;
5. Excise taxes, sales taxes, use and other personal property taxes;
6. Restocking fees charged for returned goods; and
7. Finance charges on overdue invoices.
Appointment and Authority:
1. Appointment: Manufacturer hereby appoints dealer, and dealer hereby accepts such appointment as an independent dealer representative for certain of Manufacturer’s products upon the terms and conditions hereinafter set forth.
2. Schedules: Product Price list
3. Marketing Authority: Unless the prior written consent of Manufacturer is obtained, Dealer shall not accept or submit
  Purchase Orders:
  1. For a product from any person or entity with a place of business outside the Product Territory for such product; or
  2. From any person or entity with a place of business within the applicable Product Territory, whom Dealer knows intends to ship to an ultimate user with a place of business outside said Product Territory, including, without limitation, a transaction or transactions in which Dealer desires to enter into a sharing of revenue with one or more Dealers.
  TRUAUDIO Dealer Agreement:
4. Exclusivity and Reservation: Dealer shall have the exclusive right during the term hereto to market and sell each product within its Product Territory as is designed on the then current Schedule.
Operation:
1. Sales: Dealer’s sales of Products shall be at the price set forth on the current dealer price sheet.
2. Acceptance of Sales: Manufacturer shall have the absolute right, in its sole discretion, to refuse to accept any Purchase Order submitted by Dealer:
3. Payment: Dealer shall make payment to Manufacturer pursuant to the payment terms in effect at the time an order is accepted by the distributor and dealer shall pay when all invoices are due. All sales terms are Credit Card, COD or net 30 days from the date of the invoice, unless otherwise approved in writing by Manufacturer, and shall be paid to TRUAUDIO 439 North 3050 East, St. George, Utah 84790.
4. Remedies Upon Default: A credit account that is not paid by Dealer in accordance with the terms of payment 30 days of the date of the invoice shall be considered delinquent and shall bear interest at the rate of eighteen (18) percent per annum. If Dealer becomes delinquent in the payment of any account, or if, at the sole discretion of distributor, Dealers credit becomes impaired or if dealer is in breach of any terms of this agreement, Manufacturer shall have the following rights and remedies to and including any remedies provided by law:
  1. At the discretion of Manufacturer shipping shall cease;
  2. The delinquent account(s) may be subject to litigation;
  3. Manufacturer may refuse to extend further credit and require payment in advance;
  4. Manufacturer may declare all outstanding amounts due and payable, not withstanding any credit terms previously in effect;
  5. Manufacturer may require the return of any portion of its products in the possession of dealer; and
  6. Should Manufacturer initiate legal action to collect sums owed by dealer, dealer shall pay all costs of collection including, but not limited to, attorney’s fees, collection agency fees up to 50 percent of the amount outstanding (if placed with the collection agency for collection), court costs and any and all other costs associated with the collection of the outstanding amounts due.
5. Price, Terms and Sales Policy: Prices, discounts, terms, and sales policy and respect to the sale of Products shall be under the exclusive control of Manufacturer, and may be modified at any time and from time to time in manufacturer’s sole discretion. Changes in price for products shall become effective on the stated effective date of the change. All sales by Dealer shall comply with prices in effect at the time of placement of such Purchase Order. Dealer shall, promptly upon receipt of same, communicate to sales management of Manufacturer, any and all requests by customers for discount pricing, and shall communicate to any such customer that discounts off the then-current list price must be approved by management of Manufacturer. Upon, and only upon authorization from Manufacturer, Dealer shall sell such Products at the authorized prices(s).
Duties of Dealer:
1. Best Efforts: Dealer shall use its best efforts to promote demand for and the sale of each product designated on the then-current Schedule within the products’ respective product Territory, and shall maintain adequate facilities and personnel for such purpose.
2. Financial Condition: Dealer represents and warrants that it is in good financial condition and is able to pay all its bills and accounts when due. Dealer agrees to furnish Manufacturer with financial statements or additional information at the discretion of the manufacturer upon request. Manufacturer has Dealer’s authorization to check credit reporting agencies, Dealer’s banks, and suppliers, and to change or limit the amount or duration of credit extended to Dealer by Manufacturer.
3. Exclusive Dealings: Dealer shall not, directly or indirectly, act as distributor, independent agent, sales representative, employee, or other sales personnel of any person or entity engaged in the distribution, marketing or sale of any products which, in the sole discretion of Manufacturer, compete with or are of a like nature to any one or more products designated on the then-current Schedule.
4. Customer Relations: Dealer hereby acknowledges that prompt, courteous and professional service to all Customers and the fostering and maintenance of good relations with Customers is of paramount importance to Manufacturer and this Agreement, and Dealer hereby agrees to use its best efforts to so serve Customers and promote such relations with Customers.
5. Dealer’s Expertise: Dealer shall take all necessary steps to ensure that it and all of its sales personnel are fully familiar with the products, Manufacturer’s then-current price list, and applicable Manufacturer’s policies and procedures.
6. Customer Training: If applicable to the particular product sold, upon initial installation and from time to time as thereafter requested by Customers or Manufacturer, Dealer shall provide Customers within its Product Territory with training in the proper use of products.
7. Sales Meetings and Conventions: Dealer shall attend such sales meetings for, among other things, the training and education of Dealer’s sales personnel, as Manufacturer may request; provided, however, that Dealer shall not be required to attend more than _________ such meetings per year. All expenses, including transportation, lodging and meal expenses incurred by Dealer in attending such sales meetings shall be borne by Dealer.
8. Other Sales: Dealer shall promptly report to Manufacturer any inquiry or order for Products received from any person or entity with a place of business outside Dealer’s Product Territory or Territories.
9. Satisfaction: Dealer shall perform all its duties and obligations hereunder to the reasonable satisfaction of Manufacturer.
Duties of Manufacturer:
1. Materials: Manufacturer shall supply Dealer with Manufacturer’s current catalogues, literature, price lists and applicable policies and procedures, if any. Manufacturer shall also provide Dealer with such information and training aids, as Manufacturer deems reasonably necessary to enable Dealer to carry out its responsibilities under this Agreement. All the foregoing material shall be supplied at Manufacturer’s expense, and shall remain the property of Manufacturer. Upon termination of this Agreement, said material shall be returned to Manufacturer at Dealer’s expense promptly, but not more than 30 days from the effective day of termination.
2. Sales and Technical Assistance: Manufacturer, at its expense, shall provide periodic sales and technical assistance to Dealer and its sales personnel to assist them in effective marketing of Products, education of Customers and relations with Customers, and may accompany Dealer or its personnel from time to time on calls to Customers. All other expenses of sales and promotion shall be borne by Dealer unless said expense shall have been approved in writing by Manufacturer.
3. Demonstration Models: Manufacturer will not provide demonstration models except as outlined in company programs which are subject to change.
4. Warranty and Other Representations: Manufacturer shall be entitled to give to Customers such warranty or warranties as Manufacturer deems appropriate. Dealer shall have no right to make any representations or warranties, or otherwise cause the Customer, or any of them, to believe that any warrant, except as is provided in writing by Manufacturer, is applicable to any Product. Dealer hereby agrees to indemnify and hold Manufacturer harmless from any expenses which Manufacturer may incur arising out of, or resulting from, any warranty or representation by Dealer other than a warrant in conformity with Manufacturer’s then-current express warranty. Unless the prior written consent of Manufacturer is first obtained, Dealer shall not, in connection with the sale of Products, use any advertising, promotional material or other literature other than that provided by Manufacturer, nor shall Dealer make any representations or warranties other than those contained in such materials and literature as Manufacturer may provide.
Risk of Loss:
Manufacturer has discretion in determining the method or mode of transportation and is responsible for delivery of product to dealer.
Payment:
1. Payment: Dealer shall pay all invoices when due and all sales shall be made on the payment terms at the time that the Purchase Order is accepted.
Relationship of Parties:
1. Independent Contractor: The parties expressly intend and agree that Dealer is acting as an independent contractor and not as an employee of Manufacturer. Dealer retains sole and absolute discretion, control and judgment in the manner and means of carrying out Dealer’s selling and marketing activities, except as set forth herein. Dealer understands and agrees that it shall not be entitled to any of the rights and privileges established for Distributor’s employees (if any), including, but not limited to, the following: retirement benefits, medical insurance coverage, life insurance coverage, disability insurance coverage, severance pay benefits, paid vacation and sick pay, overtime pay, or any of them. Dealer agrees to hold Manufacturer harmless against and indemnify Manufacturer for any such payment or liabilities for which Manufacturer may become liable with respect to such matters. This Agreement shall not be construed as a partnership agreement, and Manufacturer shall have no responsibility for any of Dealer’s debts, liabilities or other obligations, or for the intentional, reckless or negligent acts or omissions of Dealer or Dealer’s employees or agents.
2. Authority: Without the prior written approval of Manufacturer, Dealer shall not:
  1. pledge the credit of Manufacturer;
  2. collect any money owed to Manufacturer;
  3. execute or vary the terms of any agreement on behalf of; or
  4. represent that Dealer has the authority to do any of the foregoing.
3. Indemnification: Dealer shall indemnify and hold Manufacturer harmless from and against any and all liabilities, losses, damages, injuries, costs, expenses, causes of action, claims, demand, assessments, and similar matters, including, without limitation, reasonable attorney’s fees resulting from or arising out of the failure of Dealer to fully and completely conform and comply with each and all of the covenants, agreements, terms and conditions to be performed and complied with by Dealer under this Agreement.
Term and Termination:
1. Term: The term of this Agreement shall be an initial period of one years commencing on the date first written below, and shall be automatically renewed for successive terms of one year each, unless either party notifies the other in writing of its intention not to renew not less than 30 days prior to the expiration of the initial date of any renewal term.
2. Termination of Cause: Either party shall have the right to terminate this Agreement upon the occurrence of any of the following, and the expiration of any applicable period of cure;
  1. the failure to make any payment due and owing hereunder within thirty days after written notice of such default;
  2. the failure of a party to comply with any other term or condition of this Agreement, and the expiration of thirty days after written notice thereof, specifying the nature of such default, without cure;
  3. the attempt by Dealer to assign this Agreement, or any rights or obligations hereunder, without prior written consent of Manufacturer;
  4. the occurrence of a change in the control of management of Dealer, which is unacceptable to Manufacturer in its sole discretion;
  5. Dealer ceases to do business as a going concern;
  6. Dealer becomes subject to the insolvency, receivership or bankruptcy laws of any jurisdiction; and
  7. there occurs any willful misconduct, wrongful act, neglect or bad faith on the part of Dealer or any of its officers, agents or employees.
3. Termination Without Cause: Either party shall have the right to terminate this Agreement upon thirty days’ prior written notice; provided, that if Manufacturer shall desire to market and sell Products directly to Customers within Dealer’s Product Territory, then Manufacturer shall be required to provide not less than thirty days’ prior written notice of termination before the effective date of such termination.
Proprietary Interests of Manufacturer:
1. Trademarks and Trade Names: Nothing contained herein shall be construed to authorize Dealer:
  1. to use any trademark or trade name of Manufacturer as a style of name, or as part of the style or name, of any firm, partnership, or corporation other than Manufacturer;
  2. to apply the same to any goods other than the Products; or
  3. at any time after the expiration or sooner termination of this Agreement, to apply the same to goods or to any other use whatsoever. Dealer shall not use any name, mark, or style to identify products other than trademarks or trade names used by Manufacturer, without prior written consent of Manufacturer.
2. Proprietary Interest: Dealer recognizes the proprietary interest of Manufacturer in technical data, marketing and confidential business information provided by Manufacturer to, or otherwise discovered by, Dealer from time to time. Dealer acknowledges and agrees that such information constitutes trade secrets of Manufacturer. Dealer acknowledges and agrees that any and all such information shall be and is the property of Manufacturer. Dealer hereby waives any and all right, title or interest in and to such information and agrees, upon termination of this Agreement to promptly return all copies of such information to Manufacturer, at Dealer’s expense.
3. Confidentiality: Dealer acknowledges and agrees that Manufacturer is entitled to prevent its competitors from obtaining and utilizing its trade secrets. Dealer agrees to hold Manufacturer’s trade secrets in strictest confidence and not to disclose them or allow them to be disclosed, directly or indirectly, to any other person or entity, other than to persons engaged by Dealer for the purpose of performance hereunder, without Manufacturer’s prior written consent. Dealer shall not, either during the term of this Agreement, or at any other time after the expiration or sooner termination of this Agreement, or during any extension hereof, disclose to anyone, other than persons engaged by it for the purpose of performing hereunder, any confidential or proprietary information or trade secrets of Manufacturer obtained by Dealer. Dealer also agrees to place upon any persons to whom said information is disclosed for the purpose of performance hereunder, a legal obligation to treat such information as strictly confidential.
General Provisions:
1. No Waiver: Failure by either party hereto to enforce at any time any term or condition under this Agreement shall not be a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.
2. Assignment: The rights conferred upon Dealer hereunder are personal and may not be transferred or assigned without the prior written consent of Manufacturer, and any assignment in violation of this section shall be void.
3. Notice: Any communication under this Agreement shall be given by prepaid, certified mail, return receipt requested, or prepaid telegram or personally delivered at the addresses first set forth on the signature page hereof, or such addresses as either party shall furnish to the other in writing. If the communication is mailed, delivery shall be deemed complete ten days after the communication is placed in the United States mail; otherwise delivery shall be deemed complete on the date actually delivered.
4. Modification: No modification in the terms of this Agreement shall be binding on either party unless in writing and executed by the duly authorized representatives of each party
5. Paragraph Headings: The headings of the several paragraphs of this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision hereof.
6. Number and Gender: All words used herein in the singular number shall include the plural and the present tense shall include the future and the neuter gender shall include the masculine and feminine.
Entire Agreement:
This Agreement and the documents referenced herein constitute the entire agreement between the parties in connection with the subject matter hereof and shall supersede all prior agreements, whether oral or written, whether explicit or implicit, which have been entered into prior to the execution hereof.
Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.