|Terms for General Distributor agreement
|DISTRIBUTOR APPLICATION ENQUIRY
BM AUDIO LABS AUTHORISED DISTRIBUTOR GENERAL TERMS AND CONDITIONS
These terms and conditions including the TERMS OF SALE, and other applicable terms not explicitly contained or referenced herein (collectively “TERMS”) constitute the whole agreement (collectively “AGREEMENT”) that governs the non-exclusive distributor (“DISTRIBUTOR”) of BM Audio Labs, Inc. Unless otherwise specified by BM Audio Labs, Inc., this AGREEMENT shall also apply to any and all subprograms deemed by BM Audio Labs, Inc. to be relevant to the DISTRIBUTOR, such as but not limited to any marketing or other incentive programs offered by BM Audio Labs, Inc.
The APPLICANT (who may be a company, entity, group or individual) submitting the online DISTRIBUTOR Enquiry form to gain an opportunity to be a DISTRIBUTOR must fully read the AGREEMENT before submitting the form. To apply to become a DISTRIBUTOR, the APPLICANT must agree to be bound by all of the TERMS of this AGREEMENT, both in capacity as APPLICANT, and as DISTRIBUTOR if its APPLICATION is approved, by expressly accepting the TERMS and all such associated terms and conditions by checking the box associated with “I have read and accept these terms and conditions” provided at the end of the AGREEMENT.
In this AGREEMENT, the following alphabetically capitalized terms shall be defined as the following meanings:
- “APPLICANT” shall mean the individual or entity who is submitting the online DISTRIBUTOR Enquiry form to BM AUDIO;
- “APPLICATION” shall mean the submission of the fully completed online DISTRIBUTOR Enquiry form by the APPLICANT to BM AUDIO to apply for the opportunity to act as an authorised DISTRIBUTOR via the SITE;
- “APPOINTMENT” shall mean the granting of non-exclusive DISTRIBUTOR status to the APPLICANT for the distribution of MODELS in the TERRITORY specified in the REFERENCING DOCUMENT by BM AUDIO;
- "BM AUDIO" shall mean BM Audio Labs, Inc., Proline Industries (HK) Limited, Megavox Corporation Limited, and any affiliated companies of BM AUDIO Labs, Inc. including direct or indirect holding and subsidiaries of BM AUDIO Labs, Inc. (collectively or individually as applicable);
- "DISTRIBUTOR" shall mean either an individual or entity, if that individual or entity has been authorized to act as a non-exclusive wholesaler, importer, value added dealer, retailer, reseller, buyer, broker or resale partner for a selection of BM AUDIO PRODUCTS, and with whom BM AUDIO has entered into a separate, written agreement authorizing the DISTRIBUTOR to purchase from BM AUDIO for resale to customers in a specified TERRITORY of the DISTRIBUTOR;
- “EFFECTIVE DATE” shall mean the date on the REFERENCING DOCUMENT issued to the DISTRIBUTOR if the APPLICATION has been approved;
- “MODELS” shall mean the limited selection of PRODUCTS that the DISTRIBUTOR is only authorized by BM AUDIO to distribute in the TERRITORY, as listed and continuously revised in the REFERENCING DOCUMENT;
- "PRODUCT(S)" shall mean the PRODUCTS and/or other PRODUCT families made or supplied or generally made available by BM AUDIO and offered for sale by BM AUDIO in the marketplace;
- “REFERENCING DOCUMENT” shall mean the official APPOINTMENT contract provided by BM AUDIO to DISTRIBUTOR containing details of the APPOINTMENT and other applicable terms and conditions;
- "SITE" shall mean all, or any of the BM AUDIO public websites currently located at: www.bmaudio.com, www.bmaudiolabs.com, www.boschmann.com, www.bmboschmann.com;
- “TRADEMARK(S)” shall mean all, or any of the trademarks “BM AUDIO”, “BM AUDIO LABS”, “BMBOSCHMANN”, “BOSCHMANN”, the oval-shaped stylised “BM” device logo;
- “TERRITORY” shall mean the geographical region (which may be a city, state, province or country) within the boundary specified by BM AUDIO which the DISTRIBUTOR is authorized to only distribute the MODELS in;
- “TERMS” shall mean the terms and conditions of this AGREEMENT including other applicable terms and conditions as provided by BM AUDIO which may not be explicitly contained herein, and any future revisions, additions and any other documents that BM AUDIO designates to incorporate into this AGREEMENT;
- “TERMS OF SALE” shall mean the terms and conditions from BM AUDIO that govern the pricing, production, delivery, purchase, payment, returns, warranty and risks of the PRODUCTS for all DISTRIBUTORS.
The APPLICANT wishes to apply to be a DISTRIBUTOR by submitting the online DISTRIBUTOR Enquiry form, for the opportunity to act as non-exclusive DISTRIBUTOR of MODELS for BM AUDIO in a TERRITORY, and BM AUDIO shall review that APPLICATION for the possibility of approving that APPLICATION. The APPLICANT becomes an authorized non-exclusive DISTRIBUTOR if the APPLICATION is approved by BM AUDIO and when APPLICANT receives and accepts an official APPOINTMENT from BM AUDIO. Except as expressly set forth below or as otherwise mutually agreed to by BM AUDIO in writing, the TERMS, together with any future revisions, additions and any other document that BM AUDIO designates to incorporate into this AGREEMENT, set forth the terms and conditions for all business activities APPLICANT or DISTRIBUTOR shall engage with BM AUDIO.
2-1. TERMS OF SALE. All trade transactions for any PRODUCTS between the DISTRIBUTOR and BM AUDIO are subject to the terms and conditions of sale (“TERMS OF SALE”). The TERMS OF SALE govern BM AUDIO’s production, pricing, delivery, DISTRIBUTOR’s purchase, payment, returns, warranty and all risks of using the PRODUCTS. APPLICANT warrants that it has fully read the TERMS OF SALE before submitting the DISTRIBUTOR Enquiry form to BM AUDIO. Proceeding to complete the APPLICATION shall be construed as APPLICANT’s acceptance of both the TERMS OF SALE and the AGREEMENT. The TERMS OF SALE govern all orders accepted, produced and delivered by BM AUDIO to DISTRIBUTOR. Every order DISTRIBUTOR places with BM AUDIO is conditioned upon, and confirms the DISTRIBUTOR’s acceptance of the TERMS OF SALE. TERMS OF SALE shall supersede any contrary terms or conditions appearing on DISTRIBUTOR’s purchase orders or associated purchase documentation. No waiver, modification, or addition to the TERMS OF SALE, or any assignment of DISTRIBUTOR’s rights or obligations under them is valid or binding on BM AUDIO unless accepted in writing and signed by BM AUDIO.
2-2. Completion and submission of the DISTRIBUTOR Enquiry form does not automatically imply that the APPLICANT’s APPLICATION has been approved or that APPLICANT has been appointed as DISTRIBUTOR. BM AUDIO reserves the right to reject the APPLICANT’s APPLICATION without providing the reasons for the rejection.
2-3. If BM AUDIO approves APPLICANT’s APPLICATION, APPLICANT shall be notified by e-mail clearly stating the APPOINTMENT of APPLICANT as DISTRIBUTOR, expressly granting APPLICANT to act as authorised DISTRIBUTOR of a TERRITORY for BM AUDIO subject to the TERMS of this AGREEMENT and any associated or applicable terms and conditions as may be determined and provided by BM AUDIO.
2-4. Other terms and conditions from BM AUDIO may form associated and inseparable part of the TERMS. Where any or such other terms and conditions exist, they will automatically be enforced and jointly form the unified TERMS. APPLICANT’s APPLICATION and any relationship it eventually engages with BM AUDIO are based upon its acceptance of the TERMS in this AGREEMENT.
2-5. Where relevant and applicable, the TERMS also apply to partners of the DISTRIBUTOR who are not themselves directly appointed by BM AUDIO to be DISTRIBUTORS, but are already in a contractual and business relationship with DISTRIBUTOR who may be involved in the distribution of any PRODUCTS.
2-6. By clicking “SUBMIT” and submitting the online DISTRIBUTOR Enquiry form or any form of enquiry to BM AUDIO on this SITE, the APPLICANT agrees to accept and be unconditionally bound by all the TERMS of this AGREEMENT whether its application is successful or otherwise. Unless otherwise agreed in writing by BM AUDIO no other terms and conditions endorsed upon, delivered with or contained in DISTRIBUTOR’s purchase orders, or in any other similar documents, will amend, or vary the provisions of these TERMS.
The APPLICANT hereby represents and warrants to BM AUDIO that APPLICANT has full authority and power to enter into this AGREEMENT and to grant the rights, covenants, and licenses specified herein, and has secured any and all necessary approvals, permits, or consents deemed necessary or advisable for the consummation of the transactions contemplated hereby, that APPLICANT is not a party to and shall not become a party to any agreement with another that is inconsistent with this AGREEMENT, and that upon agreeing to this AGREEMENT, it shall immediately be executed and become a valid and binding obligation of the APPLICANT, enforceable in accordance with its TERMS.
3-1. To be eligible to apply to be a DISTRIBUTOR, the APPLICANT:
a) must be in compliance with all of the contracts of BM AUDIO pertaining to the conduct of a DISTRIBUTOR, including without limitation, Section 7 of this AGREEMENT and all of the other applicable DISTRIBUTOR agreements provided by BM AUDIO;
b) must meet all criteria that may be required by BM AUDIO, including without limitation all requirements mentioned in other BM AUDIO documents that concern the fitness to qualify or remain as a DISTRIBUTOR;
c) must have no outstanding or unpaid BM AUDIO invoices and maintain good credit standing with BM AUDIO;
3-2. APPLICANT authorizes BM AUDIO to investigate, and agrees to execute any documents that BM AUDIO and its contractors and agents may require in order to investigate APPLICANT, its company, its affiliated entities, employees, agents and representatives for purposes of determining APPLICANT’s suitability to be a DISTRIBUTOR.
3-3. The TERMS may be accepted by legal persons (companies) and private persons, who are above 18 and perform business activity according to the applicable legal provisions.
|4. ACCEPTANCE AND APPOINTMENT
Subject to the TERMS of this AGREEMENT, if the APPLICANT’s DISTRIBUTOR Enquiry form is accepted and approved by BM AUDIO, the APPLICANT shall be offered the status of authorised DISTRIBUTOR and granted the non-transferable non-exclusive right to solicit and distribute the MODELS in the TERRITORY. The offer does not transfer any right, title or interest to any such MODELS or PRODUCTS to DISTRIBUTOR or DISTRIBUTOR's customers.
4-1. APPOINTMENT. The approved APPLICANT becomes an authorised non-exclusive DISTRIBUTOR only when BM AUDIO has expressly accepted and approved that APPLICATION by sending an original copy of the REFERENCING DOCUMENT to the APPLICANT by registered air mail noticing APPOINTMENT together with an e-mail informing APPLICANT’s APPLICATION approval, and when the APPLICANT has accepted that APPOINTMENT by expressly accepting to be an EXCLUSIVE DISTRIBUTOR by returning the REFERENCING DOCUMENT signed and endorsed with the EXCLUSIVE DISTRIBUTOR’s official business entity chop via registered air mail to BM AUDIO, in accordance with the notice service procedure in Section 16-4 hereunder. If BM AUDIO does not receive the original copy REFERENCING DOCUMENT or any written notices from the DISTRIBUTOR within ten (10) business days from the EFFECTIVE DATE, the DISTRIBUTOR may be deemed to have declined to accept such APPOINTMENT.
4-2. Non-Exclusivity. DISTRIBUTOR is accorded the non-exclusive right to solicit and distribute orders for the MODELS in the TERRITORY. BM AUDIO may offer, license and sell any PRODUCTS or other PRODUCTS from BM AUDIO, directly or indirectly, with no obligation to give notice or pay compensation to DISTRIBUTOR, or to other distributors, who may in turn distribute PRODUCTS in the TERRITORY or authorise any qualified third party, or invite other qualified parties to jointly act as DISTRIBUTORS within the TERRITORY. The rights granted in the APPOINTMENT are non-exclusive to DISTRIBUTOR, and DISTRIBUTOR hereby agrees that during the TERM of APPOINTMENT it will not, directly or indirectly authorise, or grant to any third party, the right to distribute or sublicense any of the MODELS, or PRODUCTS outside the TERRITORY as defined in the REFERENCING DOCUMENT, without prior written consent of BM AUDIO.
4-3. TERRITORY. If the TERRITORY is not defined in the REFERENCING DOCUMENT, the TERRITORY shall be defined as the country which the DISTRIBUTOR specified in the Distributor Enquiry form submitted to BM AUDIO and must be where DISTRIBUTOR primarily operates its business. DISTRIBUTOR may not, at any time solicit or distribute orders for MODELS or any other PRODUCTS in any other geographic locations outside the TERRITORY. In case of breach of these rights by DISTRIBUTOR, BM AUDIO shall be entitled to terminate the DISTRIBUTOR’s APPOINTMENT without prior notification, with immediate effect.
4-4. Relationship. DISTRIBUTOR at all times shall be considered an independent contractor with respect to its relationship with BM AUDIO. Nothing contained in this AGREEMENT or APPOINTMENT or APPLICANT’s APPLICATION shall be deemed to create the relationships of employer and employee, master and servant, franchisor and franchisee, agent and principal, investment shareholders, partnership or joint venture between DISTRIBUTOR and BM AUDIO. DISTRIBUTOR acknowledges that use of the term "partner" anywhere in name, materials, and administration does not constitute or imply any such relationships or a partnership or any other fiduciary relationship.
4-5. BM AUDIO reserves the rights from time to time, in its sole discretion and without liability to DISTRIBUTOR, to:
- review, modify, add to, or delete PRODUCT articles from the list of MODELS through the REFERENCING DOCUMENT with or without written notice to DISTRIBUTOR;
- update, improve, replace, discontinue, modify or alter the specifications for and functionality of the MODELS and PRODUCTS from time to time; and
- add to or delete from the TERRITORY through the REFERENCING DOCUMENT without written notice to DISTRIBUTOR.
4-6. Notwithstanding DISTRIBUTOR's APPOINTMENT, BM AUDIO reserves the right at any time to terminate DISTRIBUTOR’s eligibility to remain as DISTRIBUTOR if DISTRIBUTOR does not satisfactorily meet its obligations and/or basic responsibilities pursuant to Section 7, or if DISTRIBUTOR is found to be in breach of any TERMS of this AGREEMENT.
5. APPOINTMENT TERMINATION
5-1. APPOINTMENT Termination. The DISTRIBUTOR’s APPOINTMENT, if granted shall remain valid from the EFFECTIVE DATE without a pre-determined expiration date or as defined in the REFERENCING DOCUMENT. The APPOINTMENT will continue to be in effect and be subject to review by BM AUDIO from time to time. In the event of a decision of non-renewal after a review, BM AUDIO will provide written notice to DISTRIBUTOR of the termination of its APPOINTMENT.
5-1a. Termination by BM AUDIO. BM AUDIO shall have the right at any time, to suspend or terminate DISTRIBUTOR’s APPOINTMENT, with or without providing cause or prior written notice, in whole or in part based on the occurrence of any events of the following in nature or other reasons as BM AUDIO deems sufficient to justify that termination.
5-1b. Automatic Termination. DISTRIBUTOR’s APPOINTMENT shall terminate automatically and immediately if:
a) DISTRIBUTOR commits a breach of any of the TERMS of this AGREEMENT, or fails to meet any requirement or criteria provided by BM AUDIO, and such breach has not been rectified within thirty (30) days after receipt of a notice to rectify served on DISTRIBUTOR by BM AUDIO;
b) DISTRIBUTOR’s business becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt;
c) DISTRIBUTOR fails to pay its debts owed to BM AUDIO as they become due and at least two (2) due notices have been served by BM AUDIO, or DISTRIBUTOR defaults in any payment due to BM AUDIO, or persistently ignores BM AUDIO’s payment reminders, and DISTRIBUTOR has not cured such breach within thirty (10) days thereof such that the default continues un-remedied for a period of ten (10) days following BM AUDIO’s written notice of such default;
d) DISTRIBUTOR has failed to meet the criteria and requirements outlined by BM AUDIO in the PARTICIPATION MAINTENANCE REQUIREMENT document, or EXCLUSIVE DISTRIBUTOR has not satisfactorily fulfilled its basic responsibilities as a DISTRIBUTOR pursuant to Section 7 hereunder;
e) DISTRIBUTOR attempts to impair the integrity of the APPOINTMENT, or engages in unauthorized activities that cause damage to the goodwill of the MODELS, PRODUCTS, TRADEMARKS, or the normal businesses of other BM AUDIO DISTRIBUTORS, or engages in activities that result in permanent losses to BM AUDIO, or in any manner detrimental, destructive or unacceptable to BM AUDIO;
f) DISTRIBUTOR’s separate written business or distribution agreement with BM AUDIO terminates or expires;
g) DISTRIBUTOR fails to perform any other obligation, warranty, duty or responsibility or is in default with respect to any TERMS undertaken by DISTRIBUTOR under this AGREEMENT or other agreements with BM AUDIO and such failure or default continues un-remedied for a period of twenty (20) days following written notice of such failure or default;
h) DISTRIBUTOR’s business entity is merged, acquired, or consolidated, or if DISTRIBUTOR sells all or substantially all of its assets, or implements or suffers any substantial change in management or control which results in impaired ability to operate its business normally as before;
i) any bill or government regulation granting DISTRIBUTOR extra-contractual compensation upon termination or expiration of this AGREEMENT is introduced into or passed by the legislature or other governing body of the TERRITORY;
5-1c. Effect of Termination of APPOINTMENT. Upon termination of APPOINTMENT:
- a) all DISTRIBUTOR’s accorded rights and due benefits from the PROGRAM shall cease, except that DISTRIBUTOR shall not be relieved of any other obligation set forth in this AGREEMENT which is to take effect after the date of termination. DISTRIBUTOR shall cease to access all the privileges and rights accorded by BM AUDIO on a DISTRIBUTOR;
- b) this AGREEMENT, BM AUDIO's rights, and DISTRIBUTOR's obligations to pay BM AUDIO all amounts due hereunder, as well as DISTRIBUTOR's responsibilities under Section 7 shall survive termination of APPOINTMENT. This AGREEMENT remains in effect until terminated by BM AUDIO by serving written notice to DISTRIBUTOR in accordance with Section 16-4b hereunder;
c) the due dates of all outstanding invoices to DISTRIBUTOR for the PRODUCTS automatically will be accelerated so they become due and payable on the effective date of termination, even if longer terms had been provided previously. All orders or portions thereof remaining unshipped as of the effective date of termination shall automatically be cancelled;
d) BM AUDIO will be entitled to reject all or part of any orders received from DISTRIBUTOR after notice but prior to the effective date of termination if availability of MODELS is insufficient at that time to meet the needs of BM AUDIO and its customers fully. Notwithstanding any credit terms made available to DISTRIBUTOR prior to such notice, any MODELS or PRODUCTS shipped thereafter shall be paid for by cash, bank remittance, certified or cashier's check prior to shipment.
5-1d. No Damages For Termination or Expiration. BM AUDIO is not obligated to provide any benefits to DISTRIBUTOR related to or arising from the cause, suspension or termination of the APPOINTMENT. All provisions that by their nature are intended to survive the termination shall survive. DISTRIBUTOR accepts all risks of termination by BM AUDIO. On termination, DISTRIBUTOR will have no claim against BM AUDIO for the investment it may have made in the activities established under the participation in the PROGRAM or due to its own anticipation of the sales and other revenue to be gained because of it. BM AUDIO SHALL NOT BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by BM AUDIO or for any other reason whatsoever based upon or growing out of such termination or expiration. DISTRIBUTOR acknowledges that:
(i) DISTRIBUTOR has no expectation and has received no assurances that any investment by DISTRIBUTOR in the promotion of MODELS, PRODUCTS or TRADEMARKS will be recovered or recouped or that DISTRIBUTOR will obtain any anticipated amount of profits or compensation by virtue of the APPOINTMENT, and
(ii) DISTRIBUTOR will not have, or acquire by virtue of APPOINTMENT or otherwise any vested, proprietary or other right in the promotion of MODELS, PRODUCTS or TRADEMARKS or in any goodwill created by its efforts hereunder.
IN ACCORDANCE WITH THIS SECTION, DISTRIBUTOR WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF ITS APPOINTMENT OR THIS AGREEMENT UNDER THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
DISTRIBUTOR ACKNOWLEDGES THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR BM AUDIO TO ENTER INTO THIS AGREEMENT AND THAT BM AUDIO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
5-1e. DISTRIBUTOR Obligations on Termination. On termination, DISTRIBUTOR must still fulfil the following obligations:
a) pay all amounts owed by DISTRIBUTOR to BM AUDIO, which shall, notwithstanding prior TERMS OF SALE, become immediately due and payable;
b) continue to resell and deliver to its own customers or customers that BM AUDIO may possibly suggest or arrange for DISTRIBUTOR, free and clear of liens and encumbrances, in an orderly manner through acceptable channels such of MODELS at a reasonable price, but not in deficit of BM AUDIO’s current price to other distributors for such MODELS, PRODUCTS and materials;
c) for a period of one (1) year after the date of termination or expiration, DISTRIBUTOR shall make available to BM AUDIO for inspection and copying all books and records of DISTRIBUTOR that pertain to DISTRIBUTOR's performance of and compliance with its obligations, warranties and representations under this AGREEMENT;
d) DISTRIBUTOR shall cease using any TRADEMARKS including any BM AUDIO’s trade names, trade dresses, service marks, service names, logos or designations.
5-2. APPLICANT and DISTRIBUTOR acknowledge that termination of APPOINTMENT or this AGREEMENT may occur at some point and that termination by BM AUDIO is possible and should be treated in the ordinary course of business with both parties exerting their best efforts to end the relationship amicably.
5-3. Audit and Verification. BM AUDIO or their authorized representatives may visit or appoint random enquirers to perform good distributorship practice audit on APPLICANT or DISTRIBUTOR by way of survey or through investigation work to ascertain if APPLICANT or DISTRIBUTOR conforms to TERMS set forth in AGREEMENT or any applicable PROGRAM MAINTENANCE REQUIREMENT criteria without notifying DISTRIBUTOR in advance, and during any such visits at any of the DISTRIBUTOR-owned business premises or operation venues, DISTRIBUTOR agrees to offer all cooperation and supply to BM AUDIO a list of all product items handled by DISTRIBUTOR, including all those that may not include the MODELS or PRODUCTS, and proof of sales and marketing activities for the MODELS or PRODUCTS at BM AUDIO’s request.
6. DISTRIBUTOR RESTRICTIONS
6-1. TERRITORY Restriction. Unless authorized in a separate written agreement with BM AUDIO, DISTRIBUTOR may not distribute, remarket, resell, or present BM AUDIO quotes to consumers, other BM DISTRIBUTORS, resellers, or third-party sales agents with retail storefronts, online stores, or auction or resale websites whose retail market is located outside the TERRITORY. All of DISTRIBUTOR’s distribution rights shall be limited to within the geographic area known as the TERRITORY set forth in the REFERENCING DOCUMENT, which is also the location of its primary place of business, and shall not exceed these boundaries of the TERRITORY where it intends to resell the MODELS.
6-2. PRODUCT Modification Restriction. DISTRIBUTOR shall not modify or refurbish the MODELS or any PRODUCTS or parts thereof for resale or marketing. DISTRIBUTOR is not authorized by BM AUDIO to modify MODELS or PRODUCTS and resell them by purporting them as designed or made by BM AUDIO. Furthermore, DISTRIBUTOR shall not remarket or resell refurbished or previously owned or used MODELS, including used PRODUCTS that DISTRIBUTOR obtained from an end user or any other third party. However, DISTRIBUTOR may remarket and resell refurbished or previously owned or used PRODUCTS that DISTRIBUTOR has purchased directly from BM AUDIO (e.g., via BM AUDIO Outlet, BM AUDIO Auction or BM AUDIO Specials) or that DISTRIBUTOR has received permission pursuant to the AGREEMENT or other valid BM AUDIO agreements.
6-3. Unauthorized Websites and Distribution Channel Restriction.
6-3a. DISTRIBUTOR shall not market MODELS or PRODUCTS by means of websites that are have not been approved by BM AUDIO. PRODUCTS may not be linked to or appear on web pages or other media containing inappropriate material such as, but not limited to, material that is obscene (including child pornography), sexually explicit, defamatory, libellous, threatening, abusive, hateful, excessively violent, racially offensive or that BM AUDIO otherwise deems harmful or offensive.
6-3b. DISTRIBUTOR shall not market MODELS or PRODUCTS in unregulated, non-licensed or makeshift market places which portrays themselves in inadequately constructed stores or poorly presented resale points such as unsheltered bazaars or flea markets. DISTRIBUTOR shall not offer, resell, promote or distribute MODELS or PRODUCTS using deceptive or unconventional marketing and distribution arrangements not approved by BM AUDIO such as or similar to pyramid sale schemes in nature.
6-4. Reverse Engineering and Duplication Restriction. DISTRIBUTOR shall not itself, nor permit any third parties to, directly or indirectly:
- reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the bill of materials or schematic maps of any part of the MODELS or PRODUCTS,
- copy duplicate or create derivative works of the MODELS or PRODUCTS without the prior written consent of BM AUDIO or
- access or use the MODELS or PRODUCTS for any purpose other than for sales and marketing or personal use or as specified in the guidelines and restrictions for exclusive distribution.
6-5. Counterfeiting and Piracy Restriction. DISTRIBUTOR is prohibited from engaging in any counterfeiting or piracy activities against BM AUDIO which amount to aiding, ordering to manufacture, importing or purchasing from any person or entity other than BM AUDIO, any products of any category which bear the TRADEMARKS, or that appears to be similarly confusing, aesthetically similar, indistinguishable, passed-off trademark to that of BM AUDIO’s original TRADEMARKS including other proprietary trademarks or service marks belonging to BM AUDIO. DISTRIBUTOR shall not use the TRADEMARKS or trade names or any names closely resembling same as part of DISTRIBUTOR’s corporate or business name, or in any manner which BM AUDIO, at its sole discretion, may consider misleading or otherwise objectionable. DISTRIBUTOR shall not order, advertise, market, promote, sell, produce, develop, or trade any goods or products that appear to pass-off or directly bear the TRADEMARKS from any person or business other than BM AUDIO, or that which BM AUDIO did not authorize, did not produce or is not aware of. DISTRIBUTOR is prohibited from trading or selling any products produced by any manufacturer other than BM AUDIO, which illegally bear the TRADEMARKS, or have not obtained the required license from BM AUDIO to do so. DISTRIBUTOR shall purchase the MODELS or PRODUCTS solely from BM AUDIO only and shall not directly or indirectly engage in the development, marketing, distribution or sale of any product with functionality substantially similar to or competitive with the MODELS or PRODUCTS, in or outside of the TERRITORY.
DISTRIBUTOR agrees that, in the event of a breach of Sections 6-4 and 6-5, BM AUDIO shall immediately confiscate and assume ownership of any products of reverse engineering or derivative works created by or for DISTRIBUTOR.
6-6. TRADEMARK and Domain Registration Restriction. TRADEMARKS, service marks, trade or company names, product and service identifications, internet domains/internet addresses, logos, artwork and other symbols and devices associated with BM AUDIO, BM AUDIO affiliates, PRODUCTS and MODELS are and shall remain BM AUDIO's property. DISTRIBUTOR acknowledges that any provided images and artwork of the MODELS or PRODUCTS are copyrighted by BM AUDIO and DISTRIBUTOR will not alter these images or use them outside of the context in which they were provided. Additionally, DISTRIBUTOR may not register, or use any trademark, domain name or business name containing TRADEMARKS, or containing any marks confusingly similar to the SITE domains or TRADEMARKS.
6-7. Unfair Trade Practice Restriction. DISTRIBUTOR shall at no time engage in any unfair trade practices with respect to BM AUDIO or MODELS or PRODUCTS, and shall make no false or misleading representations with respect to BM AUDIO or the MODELS or PRODUCTS. DISTRIBUTOR shall refrain from communicating any information with respect to guarantees or warranties regarding MODELS, except such as are expressly authorized by BM AUDIO or are validated by BM AUDIO’s optionally purchased warranty programs. DISTRIBUTOR further shall not:
(i) engage in deceptive, misleading or unethical marketing and trade practices that are or might induce complaint from customers or the public about the MODELS, PRODUCTS, or BM AUDIO;
(ii) make false or misleading representations with regard to MODELS, PRODUCTS or BM AUDIO;
(iv) publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to MODELS, PRODUCTS and BM AUDIO;
(v) make representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of MODELS or PRODUCTS that are inconsistent with the literature and specifications supplied by BM AUDIO; or
(vi) enter into any contract or engage in any practice detrimental to the interests of BM AUDIO, MODELS or PRODUCTS.
6-8. Unauthorized Contract Restriction. APPLICANT and DISTRIBUTOR shall not have, nor shall they hold themselves as having, any right, power or authority to create any contract or other obligation, either express or implied, on behalf of, in the name of, or otherwise binding on BM AUDIO.
7. BASIC RESPONSIBILITIES
DISTRIBUTOR shall fulfil all the following basic responsibilities required of all DISTRIBUTORS hereunder at all times during its APPOINTMENT.
7-1. Basic Marketing Responsibility. DISTRIBUTOR shall use its best efforts to vigorously engage in the marketing of the MODELS and promote the MODELS in the TERRITORY in accordance with, terms, guidelines and policies of BM AUDIO relating to the obligations of an DISTRIBUTOR as provided or announced from time to time, and satisfy those reasonable criteria and policies with respect to the REFERENCING DOCUMENT by BM AUDIO from time to time. DISTRIBUTOR will whenever appropriate promote effectively the marketing of MODELS through all popular and effective channels of exposure prevailing in the TERRITORY, in conformity with BM AUDIO’s current sales and marketing strategies, policies and programs.
7-2. Basic Sales Responsibility. DISTRIBUTOR shall use its best efforts to promote the sale and distribution of the MODELS and to provide adequate support, which efforts shall include the following:
- establishing and maintaining appropriate, attractive and accessible premises and facilities for the display and demonstration of MODELS and PRODUCTS;
- provide an adequate, trained sales and technical staff to promote the sale and support of the MODELS and PRODUCTS;
- undertake promotional campaigns and canvas prospective users to stimulate the sales of MODELS and PRODUCTS;
7-3. Basic Customer Service and Support Responsibility. DISTRIBUTOR shall be the first and primary customer service providers to their customers or purchasers of the MODELS. Customer service shall include prompt response to inquiries concerning the MODELS whether by phone or electronic transmission. DISTRIBUTOR will provide prompt pre-and post-sales or license service and support for all MODELS located in the TERRITORY. DISTRIBUTOR will provide necessary and useful assistance and consultation on the use of MODELS or PRODUCTS, timely respond to its customers' general questions concerning use of MODELS or PRODUCTS, and assist customers in the diagnosis and correction of problems encountered in using MODELS. Any inquiries which cannot be resolved by DISTRIBUTOR shall be promptly forwarded to BM AUDIO.
7-4. Basic Website Responsibility. DISTRIBUTOR shall display the MODELS on its international network worldwide website. BM AUDIO will only provide customer redirection or linkage from the SITE to DISTRIBUTOR’s website if its website meets BM AUDIO’s minimum standard requirements.
7-5. Good Image Responsibility. DISTRIBUTOR shall conduct itself and its business in a manner consistent with the high image, reputation and credibility of BM AUDIO and PRODUCTS that reflects favourably at all times on the good name, goodwill and reputation of the MODELS, PRODUCTS and BM AUDIO, and shall engage in no activities which reflect adversely on MODELS, PRODUCTS or BM AUDIO.
7-5. Minimum Suggested Resale Price Responsibility. DISTRIBUTOR shall adhere with the Manufacturer Suggested Resale Price (“M.S.R.P.”) established by BM AUDIO, whose objective is to achieve and maintain a unilateral minimum pricing floor guideline for all MODELS and PRODUCTS. ALL DISTRIBUTORS shall operate their businesses for MODELS by ensuring that resale prices for MODELS they offer for resale - including those prices which their customers, retailers, or any other downstream customers and business partners - do NOT transact below the BM AUDIO’s M.S.R.P.
7-6. Anti-Piracy Responsibility.
a) promptly inform BM AUDIO if they become aware of any counterfeit BM AUDIO product traders, unlicensed users or unauthorized distributors of the MODELS or PRODUCTS and, after approval by BM AUDIO, take all appropriate actions against such unlicensed users or distributors in their TERRITORIES respectively to stop and eliminate such activities or illegal distribution. DISTRIBUTOR shall report to BM AUDIO the outcome of any such actions that they undertake;
b) proactively protect the intellectual property in the MODELS and PRODUCTS by actively participating in and supporting BM AUDIO’s Anti-Piracy policy, associations and initiatives in its TERRITORY; and
c) support and co-operate with BM AUDIO with respect to any actual or contemplated proceedings BM AUDIO initiates or may initiate against unlicensed users or distributors of the PRODUCTS in instances in which BM AUDIO’s rights and/or intellectual property in the PRODUCTS may be infringed, including, without limitation, testifying at any such proceedings.
|8. INTELLECTUAL PROPERTY
All intellectual property rights, patent rights, TRADEMARKS, copyrights or mask rights in PRODUCTS, MODELS, packaging, labelling, drawings, other documents, designs, samples and trade secrets are reserved to BM AUDIO and they shall be neither used nor transmitted to any party by DISTRIBUTOR without BM AUDIO's prior written consent. The DISTRIBUTOR shall not alter, deface, reproduce, or use any TRADEMARKS, except as provided in this AGREEMENT. The DISTRIBUTOR shall not do or authorize any third party or partner with any third party to do any act or design or develop or create or manufacture any product which would or might invalidate, compete with, or be inconsistent with any of the TRADEMARKS, MODELS, PRODUCTS, or any other Intellectual Property of BM AUDIO. DISTRIBUTOR shall promptly and fully notify BM AUDIO of any actual, threatened or suspected infringement whether inside or outside the TERRITORY of any of the TRADEMARKS, PRODUCTS, or any other intellectual property of BM AUDIO which comes to the DISTRIBUTOR’s notice, and of any claim or threatened claim by any third party that the importation or sale of PRODUCTS into the TERRITORY infringes the intellectual property rights of another.
8-1. Background Rights.
BM AUDIO retains ownership of all information and materials in its possession as of the EFFECTIVE DATE and of any proprietary BM AUDIO intellectual property rights therein
8-2. No Implied License.
None of the rights granted to DISTRIBUTOR by BM AUDIO pursuant to this AGREEMENT shall be construed as providing a license of any sort for the discovery, development, manufacture, use, sale, offer for sale, export, and/or import of MODELS or PRODUCTS or any future PRODUCTS developed by BM AUDIO unless otherwise provided by this AGREEMENT.
8-3. Collaboration Rights.
All conceptions, ideas, innovations, discoveries, inventions, compositions, biological material, and methods, whether or not patentable or susceptible to any other form of legal protection, that are made or derived by BM AUDIO and/or the DISTRIBUTOR during performance under APPOINTMENT and this AGREEMENT and all rights therein shall be owned by BM AUDIO.
8-4. License to Intellectual Property.
BM AUDIO hereby grants to DISTRIBUTOR, a TERRITORY-wide, fully paid, royalty-free, non-exclusive license to the extent that BM AUDIO has the power to so grant, to use BM AUDIO’s copyright-protected material for the sole purposes of promoting sales of MODELS and marketing of PRODUCTS through the APPOINTMENT consistent with the TERMS of the AGREEMENT, with such material including limited content displayed on the SITE, and BM AUDIO’s policies during APPOINTMENT.
8-5. Use of Licensed Intellectual Property.
8-5a. Correct Use of TRADEMARKS.
Whenever DISTRIBUTOR uses any of the TRADEMARKS, the TRADEMARKS shall be displayed in accordance with the specifications and directions furnished by BM AUDIO to the DISTRIBUTOR from time to time. For the use of non-registered TRADEMARKS, series marks or service marks of BM AUDIO, DISTRIBUTOR shall designate such use by annotating such marks using the “TM” subscript. For the use of registered TRADEMARKS, DISTRIBUTOR shall designate such use by annotating such marks using the “®” superscript. DISTRIBUTOR shall clearly indicate BM AUDIO’s ownership of the TRADEMARKS, series marks or service marks whenever and wherever they are used.
DISTRIBUTOR acknowledges BM AUDIO’s exclusive right, title and interest in the TRADEMARKS and will not at any time do, or cause to be done, any act or thing contesting or in any way impairing or tending to impair any part of such right, title and interest. Specifically, but without limitation, DISTRIBUTOR shall at no time adopt or use any word or mark that is likely to be similar to or confusing with the TRADEMARKS. DISTRIBUTOR shall not in any manner represent that it has ownership of the TRADEMARKS and acknowledges that use of the TRADEMARKS will not create in the DISTRIBUTOR’s favour any right, title or interest in or to the TRADEMARKS, but all uses of the TRADEMARKS by DISTRIBUTOR, including any goodwill generated by such use, will inure to the benefit of BM AUDIO. Only BM AUDIO may, at its sole discretion, file trademark registration applications and obtain trademark registrations for the TRADEMARKS in the TERRITORY.
8-5b. Authorisation for Copyright Material.
DISTRIBUTOR shall obtain prior written approval from BM AUDIO to use any Copyright Material or derivative works thereof, including, but not limited to, the use of SITE proprietary information or material or derivative works thereof. DISTRIBUTOR shall provide to BM AUDIO any and all information that may result from DISTRIBUTOR’s use of Copyright Material or derivative works thereof, including but not limited to, statistical information that may be associated with DISTRIBUTOR’s website, such as website page hits, sales leads generation and any other information that may be deemed relevant at BM AUDIO’s sole discretion.
8-5c. Copyright and Trademark Notices. DISTRIBUTOR will include on each MODEL that it distributes, and on all containers and storage media therefor, all TRADEMARK, copyright and other notices of proprietary rights included by BM AUDIO on such MODELS or PRODUCTS. DISTRIBUTOR agrees not to alter, erase, deface or overprint any such notice on anything provided by BM AUDIO. DISTRIBUTOR also will include the appropriate TRADEMARK notices when referring to any MODELS or PRODUCT in advertising and promotional materials.
8-5d. DISTRIBUTOR Does Not Acquire Proprietary Rights. DISTRIBUTOR has paid no consideration for the use of TRADEMARKS, series and service marks, trade names, logos, designations or copyrights, and nothing contained in this AGREEMENT will give DISTRIBUTOR any right, title or interest in any of them. DISTRIBUTOR acknowledges that BM AUDIO owns and retains all TRADEMARKS, trade names, logos, designations, copyrights and other proprietary rights in or associated with MODELS or PRODUCTS, and agrees that it will not at any time during or after APPOINTMENT assert or claim any interest in or do anything that may adversely affect the validity of any TRADEMARK, trade name, logo, designation or copyright belonging to or licensed to BM AUDIO (including, without limitation any act or assistance to any act, which may infringe or lead to the infringement of any of BM AUDIO's proprietary rights).
8-6. No Continuing Rights. Upon expiration or termination of APPOINTMENT or this AGREEMENT, DISTRIBUTOR will immediately cease all display, advertising and use of all TRADEMARKS, trade names, logos and designations and will not thereafter use, advertise or display any trademark, trade name, logo or designation which is, or any part of which is, similar to or confusing with any trademark, trade name, logo or designation associated with any MODEL or PRODUCT.
8-7. Obligation to Protect. DISTRIBUTOR agrees to use reasonable efforts to protect BM AUDIO's proprietary rights and to cooperate at DISTRIBUTOR's expense in BM AUDIO's efforts to protect BM AUDIO’s proprietary rights. DISTRIBUTOR agrees to promptly notify BM AUDIO of any known or suspected breach of BM AUDIO's proprietary rights that comes to DISTRIBUTOR's attention.
8-8. Title to MODELS Documentation Package. DISTRIBUTOR acknowledges that the documentation content and illustration design for packaging and labelling of MODELS and PRODUCTS are the property of BM AUDIO, and that the MODELS are being made available to DISTRIBUTOR in confidence and solely on the basis of its confidential relationship with BM AUDIO. DISTRIBUTOR agrees not to print, copy, provide or otherwise make available, in whole or in part, any portion of an original or modified MODEL or PRODUCT, their Documentation Package or related materials.
9. DISCLOSURE OF INFORMATION
9-1. BM AUDIO may choose to make certain information collected through the SITE about DISTRIBUTOR’s business available to companies with whom BM AUDIO has a strategic relationship, including, without limitation, companies who conduct market research on behalf of BM AUDIO or marketing activities for the PRODUCTS intended to be a benefit to BM AUDIO’s brand value, DISTRIBUTOR or DISTRIBUTOR’s customers. The information will be provided under confidentiality agreements between BM AUDIO and such partners and may be used in connection with notifying DISTRIBUTOR of PRODUCTS, services or information that BM AUDIO believes may be of interest to DISTRIBUTOR. BM AUDIO may determine in its sole discretion to transfer DISTRIBUTOR’s business information to a BM AUDIO partner and may share such information (including company name and contact information such as, but not limited to, contact names, phone and fax numbers, addresses, and emails) with that partner to ensure continued high quality service.
9-2a. DISTRIBUTOR acknowledges that in the course of performing its obligations under this AGREEMENT, it may obtain information relating to BM AUDIO, MODELS and PRODUCTS which is of a confidential and proprietary nature to BM AUDIO ("PROPRIETARY INFORMATION"). Such PROPRIETARY INFORMATION includes without limitation trade secrets, know-how, formulas, parts, compositions of matter, inventions, techniques, processes, product and packaging designs, diagrams, schematics, agreements, contracts, customer and financial information and sales and marketing plans.
9-2b. DISTRIBUTOR will:
a) use such PROPRIETARY INFORMATION only in connection with fulfilling its obligations as DISTRIBUTOR under this AGREEMENT;
b) during the APPOINTMENT and for a period of seven (7) years thereafter, hold such PROPRIETARY INFORMATION in strict confidence and exercise due care with respect to its handling and protection of such PROPRIETARY INFORMATION, consistent with its own policies concerning protection of its own proprietary and/or trade secret information;
c) disclose, divulge or publish the PROPRIETARY INFORMATION only to such of its employees or representatives as are Qualified Personnel (as defined below) and to no other person or entity, whether for its own benefit or for the benefit of any other person or entity. DISTRIBUTOR further agrees to return all copies of all PROPRIETARY INFORMATION in its possession, control or custody immediately upon termination or expiration of APPOINTMENT or termination of this AGREEMENT. As used herein, the term "Qualified Personnel" means such employees and representatives of DISTRIBUTOR who:
(i) have a need to know or have access to PROPRIETARY INFORMATION in order for such employees or representatives to carry out the obligations of DISTRIBUTOR contained in Sections 7 hereunder and the purposes of this AGREEMENT and
(ii) have executed non-disclosure agreements binding them not to use or disclose such PROPRIETARY INFORMATION except as permitted herein.
9-2c. Exceptions. The obligations contained in Section 9-2 will not apply to PROPRIETARY INFORMATION which (a) is or becomes public knowledge without the fault or action of DISTRIBUTOR, (b) is received by DISTRIBUTOR from a source other than BM AUDIO, which source received the information without violation of any confidentiality restriction, (c) is independently developed by DISTRIBUTOR without violation of any confidentiality restriction or (d) is or becomes available to DISTRIBUTOR on an unrestricted basis from BM AUDIO.
|10. DISTRIBUTION WARRANTY DISCLAIMER
BM AUDIO MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE DISTRIBUTION (INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, TOOLS, AND OTHER MATERIALS RELATED TO OR PROVIDED UNDER THE APPOINTMENT), EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. APPLICANT UNDERSTANDS THAT THE DISTRIBUTION OF BM AUDIO PRODUCTS DOES NOT GUARANTEE THAT BEING APPOINTED SUCH DISTRIBUTOR IN THE TERRITORY WILL MAKE ANY SALES OR PROFITS. The risk of applying and acting as DISTRIBUTOR, selling, promoting and marketing the MODELS or PRODUCTS, is entirely the risk and duty agreed to be undertaken by the APPLICANT and DISTRIBUTOR. The APPLICANT or DISTRIBUTOR may not, under any circumstances, request BM AUDIO to reimburse any part for paid or unpaid invoices incurred or accrued for any of the sales and marketing services and any business activities undertaken by the APPLICANT while applying for, or DISTRIBUTOR after APPOINTMENT.
To the fullest extent permitted by law, APPLICANT and DISTRIBUTOR shall indemnify, defend, and hold harmless BM AUDIO, BM AUDIO partners, affiliates, and their respective successors and assigns from any claim, demand, cause of action, debt, or liability (including attorney or legal fees, expenses, litigation and court costs), loss, cost expense or damage arising from (a) APPLICANT or DISTRIBUTOR’s actions, or breach of this AGREEMENT or (b) DISTRIBUTOR’s conduct related to the APPOINTMENT, or (c) performance or non-performance of BM AUDIO, the APPOINTMENT or this AGREEMENT due to any reason whatsoever; or (d) as a direct or indirect consequence of termination of DISTRIBUTOR’s APPOINTMENT or this AGREEMENT pursuant with its TERMS; or (c) arising from acts of third parties in relation to PRODUCTS sold by DISTRIBUTOR under this AGREEMENT, including, but not limited to execution of liens and security interests by third parties with respect to any such MODELS or PRODUCTS.
|12. LIMITATION OF LIABILITY
IN NO EVENT SHALL BM AUDIO BE LIABLE FOR ANY LOSS OF BUSINESS, INCOME, OR PROFITS, OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. IN ADDITION, BM AUDIO SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, RELIANCE, EXEMPLARY, INCIDENTAL, OR INDIRECT LOSS OR DAMAGES OF THE APPLICANT OR DISTRIBUTOR. IN NO EVENT SHALL BM AUDIO'S AGGREGATE LIABILITY FOR ALL CLAIMS EXCEED U.S. DOLLARS ONE HUNDRED ($100.00). THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN TORT, CONTRACT, OR OTHER THEORIES, AND WHETHER BM AUDIO KNEW OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS, THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
|13. DISPUTE RESOLUTION
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) INITIATED BY DISTRIBUTOR WITH BM AUDIO, ITS AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS OR AFFILIATES ARISING FROM, OUT OF, OR RELATING TO THE DISTRIBUTION, THE APPOINTMENT, THIS AGREEMENT OR THE INTERPRETATION, BREACH, TERMINATION OR VALIDITY THEREOF, SHALL BE RESOLVED BY BINDING PRIVATE CONFERENCE WITH BM AUDIO IN ACCORDANCE WITH THE DISPUTE RESOLUTION PROVISION OF BM AUDIO.
|14. GOVERNING LAW
APPLICABLE LAW, FORUM SELECTION AND CONSENT TO JURISDICTION. THE PARTIES AGREE THAT THIS AGREEMENT, OR ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN APPLICANT, DISTRIBUTOR AND BM AUDIO BASED UPON, ARISING FROM, OR RELATING TO THE DISTRIBUTION, THE APPOINTMENT, THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THE APPOINTMENT, THIS AGREEMENT, BM AUDIO'S PROGRAMS, OR ANY RELATED SERVICES AND OFFERS SHALL BE SUBJECT TO AND GOVERNED BY THE LAWS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, CHINA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES.
14-1. APPLICANT and DISTRIBUTOR hereby represents and warrants that, as of the date of this AGREEMENT, no consent, approval or authorization of, or designation, declaration or filing with, any governmental authority in the TERRITORY, which has not been made or obtained by APPLICANT and DISTRIBUTOR prior to the EFFECTIVE DATE, is required in connection with the valid execution, performance and delivery of this AGREEMENT. Alternatively, if any such actions are required, APPLICANT and DISTRIBUTOR agree to use their best effort to obtain such consent, approval or authorization and agree to comply with all applicable laws in its performance under this AGREEMENT.
14-2. APPLICANT will comply with all applicable federal, state, provincial and local laws and regulations governing APPLICANT’s application to be a DISTRIBUTOR. In addition, at all times DISTRIBUTOR shall conduct business in a manner which reflects favourably on the MODELS and PRODUCTS, services, and goodwill and reputation of BM AUDIO. In the marketing and sales of PRODUCTS, DISTRIBUTOR will conduct its business in an ethical manner and avoid any business practices that may be perceived as deceptive, misleading, or otherwise improper. In connection with marketing activities related to MODELS or PRODUCTS, DISTRIBUTOR will comply with all applicable marketing communication laws and regulations, such as but not limited to the U.S. CAN-SPAM Act of 2003 and Canada's Anti-Spam Law.
15-1. Voluntary Participation. APPLICANT acknowledges that its application to become a DISTRIBUTOR is completely voluntary and that this participation has not been required by BM AUDIO as a condition of purchasing PRODUCTS from BM AUDIO, or as a condition for fulfilling another related or non-related commitment or for participating in any other programs or accessing any services offered by BM AUDIO.
15-2. Assignment. This AGREEMENT will not be assignable by APPLICANT or DISTRIBUTOR, and neither APPLICANT nor DISTRIBUTOR may delegate their duties hereunder without the prior written consent of BM AUDIO; provided, however, that BM AUDIO may (i) assign this AGREEMENT to a subsidiary or entity controlling, controlled by or under common control with BM AUDIO, or (ii) as part of a corporate restructuring, reorganization, divestiture, merger, acquisition or sale or other transfer of all or substantially all of the assets of BM AUDIO, assign the rights and delegate the obligations of this AGREEMENT without the consent of DISTRIBUTOR. The provisions hereof shall be binding upon and inure to the benefit of both parties, their successors and permitted assigns. Any attempt to assign this AGREEMENT will be null and void.
15-3. Force Majeure. BM AUDIO shall not be liable for any loss or damage because of non-performance, delays in delivery or non-delivery occasioned by labour disputes, industrial action, strikes, lockouts, damage to BM AUDIO's facilities, acts of God, war, fire, flood, draught, tempest, failure of BM AUDIO's suppliers, manufacturers or subcontractors to meet scheduled deliveries or any similar or dissimilar cause beyond BM AUDIO's reasonable control or making BM AUDIO's performance hereunder commercially impracticable.
15-4. Changes and Cancellation. BM AUDIO reserves the right to change or cancel this AGREEMENT because of any circumstance requiring allocation of production or delivery, or because such change or cancellation is deemed by it necessary to comply with applicable laws, ordinances, regulations, directives or administrative actions or necessary for the improvement or proper manufacture of MODELS or PRODUCTS. BM AUDIO may license or subcontract all or any part of its rights and obligations under this AGREEMENT without APPLICANT’s or DISTRIBUTOR’s consent. BM AUDIO reserves the right to modify the nature, content or provisions of the APPOINTMENT, including, without limitation, the eligibility requirements, benefits (including any discounts and pricing), and this AGREEMENT, at any time without prior notice. If BM AUDIO elects to provide notice, BM AUDIO may do so via but not limited to, the DISTRIBUTOR LOGIN SERVICE, or the SITE or e-mail. No oral modifications are permitted under this AGREEMENT and DISTRIBUTOR agrees not to rely upon any oral representations made at any time.
15-5. U.S. Government Contracts. If the MODELS or PRODUCTS to be furnished under this AGREEMENT are to be used in the performance of a U.S. Government contract or subcontract, and a U.S. Government contract number shall appear on DISTRIBUTOR’s purchase order, those clauses of the applicable U.S. Government procurement regulations which are required by Federal Statute to be included in U.S. Government subcontracts are incorporated herein by reference.
15-6. Severability and Headings: Headings used in this AGREEMENT are for convenience only and shall not affect the interpretation of the AGREEMENT. If any provision of this AGREEMENT is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable. Failure or delay of BM AUDIO to enforce any of its rights under this AGREEMENT shall not, in any way nor under any doctrine, diminish or otherwise limit BM AUDIO’s rights to enforce those same rights at a later date or other rights under this AGREEMENT.
16-1. APPLICANT and DISTRIBUTOR may not assign the APPOINTMENT, or this AGREEMENT, or any benefits or services due to DISTRIBUTOR under the APPOINTMENT, to any third party without the express written consent of BM AUDIO. DISTRIBUTOR may not assign, transfer or sell all or any of its rights under this AGREEMENT or addendum(s) thereto (or delegate all or any of its obligations hereunder), without the prior written consent of BM AUDIO. If a sale or other transfer of DISTRIBUTOR's business is contemplated (whether by transfer of stock, assets or otherwise), DISTRIBUTOR shall notify BM AUDIO in writing no less than thirty (30) days prior to effecting such transfer, but such notice shall not obligate BM AUDIO in any manner. BM AUDIO may assign this AGREEMENT only to a parent, subsidiary or affiliated firm or to another entity in connection with the sale or other transfer of all or substantially all of its business assets. Subject to these restrictions, the provisions of this AGREEMENT or addendum(s) thereto, shall be binding upon and shall inure to the benefit of DISTRIBUTOR, their successors and permitted assigns.
16-2. If any provision herein is void or unenforceable, BM AUDIO may delete such provision and the remainder of the AGREEMENT shall continue to be in effect. BM AUDIO's failure to enforce APPLICANT or DISTRIBUTOR’s strict performance of any TERMS herein will not constitute a waiver of BM AUDIO's right to subsequently enforce such TERMS or any other TERMS of this AGREEMENT. The entire relationship between DISTRIBUTOR and BM AUDIO is defined in this AGREEMENT and any other applicable agreement as described in Section 4-3. APPLICANT and DISTRIBUTOR expressly disclaims any reliance on any oral statements, representations, or courses of conduct, including any right to continue to participate in the PROGRAM other than as provided in this AGREEMENT. APPLICANT and DISTRIBUTOR confirms that it is its wish that this AGREEMENT, as well as other documents relating to this AGREEMENT, including all notices, have been and will be drawn up in the English language only.
16-3. The waiver by BM AUDIO of its rights or any breaches of BM AUDIO under this AGREEMENT, or addendum(s) thereto, in a particular instance shall not be construed as a waiver of the same or different rights or breaches in subsequent instances. All remedies, rights, undertakings and obligations hereunder shall be cumulative, and none shall operate as a limitation of any other remedy, right, undertaking or obligation hereunder.
16-4. Notice Service. All notices and demands of any kind which BM AUDIO or APPLICANT/DISTRIBUTOR may be required or desire to serve upon the other under the TERMS of this AGREEMENT, or addendum(s) thereto, shall be in writing and shall be served by personal delivery, by registered air mail, by courier and simultaneously by e-mail at the primary registered addresses. Any notice served by APPLICANT or DISTRIBUTOR to BM AUDIO solely by personal or electronic delivery alone shall not be deemed a complete notice service upon such delivery. Notice service served to APPLICANT or DISTRIBUTOR by air mail or courier upon mailing or placement with courier and accompanied by a successfully sent e-mail to APPLICANT’s or DISTRIBUTOR’s most updated and current e-mail address registered through the online application form in BM AUDIO’s record shall be deemed complete.
16-4a. Notices to BM AUDIO. Any notice or communication required or permitted hereunder (other than Administrative Notice) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses set forth below or to such changed address as announced by BM AUDIO, and simultaneously a copy of that notice sent by e-mail to email@example.com. Notices and communications to BM AUDIO shall be sent to our Administrative & Legal Service Division:
1212 Block A New Trade Plaza, 6 On Ping Street, New Territories, Hong Kong
16-4b. Notices to APPLICANT or DISTRIBUTOR. Notices and communications to APPLICANT or DISTRIBUTOR shall be sent to address submitted in the online application form of the PROGRAM received by BM AUDIO through the SITE. Any notices or communications to APPLICANT or DISTRIBUTOR hereunder shall be deemed to have been given when deposited in the mail, addressed to the same address of APPLICANT or DISTRIBUTOR, and simultaneously a copy of that notice sent by e-mail to the e-mail address submitted by APPLICANT or DISTRIBUTOR on the online application form at the SITE.
16-5. In the event that any of the provisions of this AGREEMENT, or addendum(s) thereto, or the application of any such provisions to APPLICANT or DISTRIBUTOR hereto with respect to their obligations hereunder shall be held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining portions of this AGREEMENT, or addendum(s) thereto, shall remain in full force and effect and shall not be invalidated or impaired in any manner.
16-6. APPLICANT and DISTRIBUTOR acknowledge that no written or oral representations, inducements, promises or agreements have been made which are not embodied herein. Except as otherwise provided in this AGREEMENT, this AGREEMENT may not be amended, modified or supplemented, except by a written instrument signed by BM AUDIO hereto.
|16-7. This AGREEMENT may be executed in multiple counterparts, each of which may be deemed enforceable without production of the others.