APPOINTMENT OF DISTRIBUTORSHIP

Appointment Of Distributor. Distributor is appointed on an non-exclusive basis for the sale of Goods of the Company. Distributor shall promote the sale of the Goods of Company in the territory and shall maintain a sales organization of sufficient size to cover and serve the trade in the territory promptly and adequately. Distributor shall conform to all announced merchandising policies of Company. Distributor accepts this appointment and shall select retail dealers in the territory, all to the satisfaction of Company, and make all sales of the Goods of Company only in accordance with this agreement.

Territory. The distribution right shall be limited to customers who have places of business in, and will initially use the Company's products in the geographic area specified in the Distributor Agreement. Company assumes no liability in the event that any Goods of Company are shipped into the territory of distributor by others.

Extra-Territorial Sales. With the prior written agreement of Company, Distributor may sell in territory outside that initially authorized by Distributor. Such sales may be subject to termination in the event Company contracts with another Distributor who historically comprehensively covers that geographic area as part of its regular territory.

Reservation of Sales Right. Company reserves the exclusive right to sell in the territory of Distributor any of the Goods, or parts thereof, and Distributor shall not attempt to sell or sell to:

·        to the government of the United States, or other nations, or any state, departments or bureaus thereof, any governmental or municipal corporation or to any prime or subcontractor of such governmental entities

·        via the Company’s website

·        national retailers and major regional retailers with more than four locations such as Home Depot, Lowes, Scottys, Grainger, Builders Square, Ace Hardware, Walmart, Pinch-a-Penny, Pool Time, Leslie’s Pool Supplies, and so forth.

·        major electrical distributors and supply houses listed from time to time in the top 250 in the U.S. by Electrical Wholesaling Magazine. (see www.ewweb.com).

·        Major P&H, PVF, HVACR distributors and supply houses listed from time to time in the top 150 in the Supply House Times. (see www.supplyht.com).

·        when the Distributor or territory is located outside the U.S., the top 100 electrical and/or plumbing distributor and supply houses within that territory or such larger standard statistical area of which it forms a part in the computations and rankings compiled by similar trade organizations in that geographic area.

PRICING

Pricing of Goods to Distributor. Distributor shall pay Company for Goods purchased pursuant to this contract according to the pricing agreement in effect between Company and Distributor at the time Distributor’s order is accepted by Company. All prices stated are F.O.B. shipping point. Distributor shall bear all costs of transportation and insurance and will promptly reimburse Company if Company prepays or otherwise pays for such expenses.

List Price. The List Price of the Goods shall be as from time to time posted on this website. Company will endeavor to give Distributor advance notice of price changes.

Competitive Goods. Distributor agrees not to represent or sell other products which are competitive with Company's Goods unless agreed to in writing by Company.

ORDERS

Purchase Orders. Distributor shall order Goods by written or electronic notice to Company. Each order shall specify the number of units to be shipped, the type of units to be shipped, and the desired method of shipment. For clarification purposes, Company may insert in orders received from Distributor ministerial clarification matters such as the prices of the Goods, their particular descriptions, including numbers and distinguishing characteristics. Distributor agrees to be bound by such details as though they were contained in the orders at the time Distributor signed them.

Acceptance. An order from Distributor shall be considered accepted by Company when acknowledgment of receipt of the order is given by Company to Distributor, or if no acknowledgment is given then when shipment is made.

Cancellation. An order from Distributor that is accepted by Company shall not be subject to cancellation by Distributor without the written agreement of Company.

Minimum. Minimum invoice value is $1000 net. Orders received below that amount will be processed and billed the minimum charge of $1000.

Size. Orders will be in standard package quantities as time to time set by Company.

Payment

Net 30 Days. Terms are net thirty (30) days from date of delivery where satisfactory credit is established, otherwise terms are payment upon placement of order.

·        Payment in full within 15 (fifteen) days of delivery, 1% discount.

·        Payment in full within 10 (ten) days of delivery, 2% discount.

All payments shall be made in U.S. Dollars, unless agreed in prior writing. Distributors not based within the fifty states of the United States shall make payments under this contract by certified irrevocable letter of credit guaranteed by a U.S. bank, or upon such other terms as may be determined in advance by mutual agreement. Company reserves the right to revoke any credit extended at the Company's sole discretion. Distributor agrees to pay such invoices when due regardless of other scheduled orders or deliveries. Invoices not paid within thirty (30) days of the invoice date will have one and one-half percent (1.5%) per month finance charge assessed against the unpaid balance from the original date of invoice until the date of payment. All expenses incurred by Distributor shall be paid by Distributor.

DELIVERY

Shipment. All shipments of Goods shall be made F.O.B. shipping point and liability for loss or damage in transit, or thereafter, shall pass to Distributor upon Company's delivery of Goods to a common carrier for shipment. Shipping dates are approximate and are based to a great extent on prompt receipt by Company of all necessary ordering information from Distributor. Company agrees to ship units to Distributor as closely as possible to the delivery schedule set forth in each order as accepted by Company, unless Company otherwise indicates in writing. Company shall make every effort, but shall not be liable for failure, to honor any order which: (a) specifies a shipping date earlier than Company's then current delivery schedule for the date such order is received by Company and/or (b) specifies a quantity to be delivered in any one month within the current delivery schedule which is greater than one hundred percent (100%) of the total quantity shipped in the preceding sixty (60) day period.

Taxes. Prices do not include federal, state or local taxes applicable to the Goods sold under this contract. In any international sales, applicable Import and export taxes and duties shall be for the account of Distributor. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Distributor shall pay such amount to the Company unless Distributor provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Any gross receipts taxes assessable by Distributor’s state in lieu of sales taxes shall be for the account of Distributor.

Title to Goods. The Company hereby reserves a purchase money security interest in the Goods sold or to be sold under this contract and in the proceeds thereof, if Distributor shall have sold the Goods to another party prior to Distributor paying Company the purchase price for such Goods. These interests will be satisfied by payment in full. A copy of this contract may be filed with the appropriate authorities at any time after the signature by the Company as a financing statement in order to perfect the Company's security interest. On the request of the Company, Distributor shall execute UCC financing statement(s) and other instruments the Company shall desire to perfect a security interest in the Goods for its purchase price, and Distributor appoints Company its attorney-in-fact to execute such instruments.

Goods Acceptance. The Goods shall be deemed accepted by Distributor if at the time of delivery Distributor does not report to Company in writing that the Goods do not conform to the product description on Distributor’s Purchase Order to Company.

Delays in Delivery; Force Majeure. Company shall not be liable for or in default of this contract by reason of any delay attributable to any cause, circumstance, or contingency beyond its control or the control of its suppliers or Company’s which prevents or impedes manufacture, supply, or delivery to Distributor by Company whether directly or indirectly. Such causes, circumstances, and contingencies shall include, but not be limited to: inability to obtain material, supplies or services in the normal course of business; accidents; fire; explosion; strikes, lockouts, or other labor problems; freight embargo; gas or petroleum product shortage or embargo; act of God or of the public enemy; war; riots; civil disturbance; act of any government, de jure or de facto, or agency or official thereof; material or labor shortage; transportation contingencies; unusually severe weather; default of any other Company or a supplier or subcontractor; quarantine, restriction, epidemic; catastrophe; restraints affecting shipment or credit; non-arrival or delay of carriers; lack of timely instructions or essential information from Distributor; inadequate or reduced supply or excessive cost of suitable raw materials, transportation or production facilities; or otherwise arising out of causes beyond the reasonable control of the Company. Nor shall the Company at any time be liable for any incidental, special or consequential damages. Company shall not be liable for fines, penalties, damages or offsets arising out of or relating to illegible, unscannable, or unworkable UPC bar codes on Goods. Delays in delivery attendant to same shall not entitle Distributor to terminate this contract, terminate or not honor any Purchase Order, or collect damages for same. In the event of such default or delay, the date for shipment shall be extended correspondingly. Company may make delivery on an equitable basis with reference to all its Distributors and buyers. No orders may be cancelled unless acceptable to Company. If payment is to be made by letter of credit and if the letter of credit should expire prior to the date of completion of the products, Distributor shall extend the letter of credit promptly on terms acceptable to Company, or shall otherwise assure full and prompt payment in a manner acceptable to Company.

Returned Goods. Goods may not be returned without the prior written agreement of the Company. The request for an agreement to return Goods must show Company’s invoice number, date, quantity of items and Company part number. Goods to be returned must be new, unused, properly packaged and in resaleable condition and no credit will be issued for open or partially used packages. A restocking charge of twenty five percent (25%) off of the list price will be imposed. Distributor will prepay freight cost to return the product and the outbound freight will be deducted from the credit issued.

MARKETING RESPONSIBILITIES

Distributor Responsibilities. Distributor shall use its best efforts to perform the following duties:

·        Promote and expand the sale of Goods within the Territory;

·        Provide an adequate, trained sales staff to promote the sale and support of the Goods;

·        Undertake promotional campaigns and canvas prospective users to stimulate the sales of Goods;

·        Act truthfully while representing Company Goods and refrain from any misrepresentation of facts about Company Goods;

·        Appoint dealers for the sale of the Goods and maintain a sales organization adequate to work and develop the territory of Distributor;

·        Provide and maintain at all times a stock of Goods from Company adequate to meet the needs of the territory of Distributor;

·        Provide Company with periodic forecasts of its probable requirements for the next six months for Goods and accessories;

·        Promote the Goods to Distributor’s potential customers (which shall not be taken to include any duty to advertise the Goods to the general public);

·        Work to have the Company’s Goods featured in application trade industry magazines;

·        Provide Company with such reports of Distributor’s activities in furtherance of Company's business in the Territory as Company may reasonably request;

·        Confine sales of the Goods of Company, other than warranty replacement Goods, to retail merchants who are engaged in the business of selling the Goods at retail, except that Distributor may sell direct to governmental units other than the military;

·        Accept the suggestions and requests of Company in advertising and general sales promotion policies of Company;

·        Honor, at Distributor’s expense, the Company’s product warranty. Any warranty request from a customer that Distributor disputes and desires not to honor shall be immediately (within one hour if possible) communicated to Company so that Company at its option may choose at its expense to honor the warranty claim whether rightful or not, in order to build good customer relations and product reputation;

·        Refrain from modifying Company Goods;

·        Provide to Company, on a periodic basis as designated by Company, the names and address of those customers to whom Distributor has sold Goods during the preceding reporting period, sales information, customer comment and feedback, returns information, and such other information as Company shall reasonably request. Company shall have the right to use any such information for any legal purpose.

Company Responsibilities. Company shall use its best efforts to perform the following duties:

·        Provide downloadable product literature and product information on this website which Distributor may access and use without charge.

·        Warrant to Distributor (not subsequent purchasers, whose warranty is stated elsewhere herein) that the Goods purchased by Distributor meet the following warranty of merchantability:

(a)   pass without objection in the trade

(b)   are of fair average quality

(c)   are fit for ordinary purposes

(d)   are of even kind, quality and quantity

(e)   are adequately contained, packaged and labeled

(f)     conform to the product description on Distributor’s Purchase Order to Company;

·        Supply the Goods requirements of Distributor;

·        Assure that the Goods conform to the warranties set forth herein.

PERFORMANCE REQUIREMENTS

Sales performance requirements shall be as stated in the Distributor Agreement and shall form a material part of this Contract.

PROPRIETARY RIGHTS

Authorized Use of Company Name and Logos by Distributor. Company authorizes Distributor’s use of all slogans, ads, logos, and graphics developed by Company and provided to Distributor, found from time to time on the Company’s website (SnapMarker.com), or created by Company in the future. Distributor will, on termination of this contract, or upon request of Company, discontinue the use of the above and thereafter will not use the same either directly or indirectly in connection with its business or expressions so nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public.

Patent Indemnity by Company. Company agrees, at its own expense, to indemnify, defend and hold harmless Distributor from and against expense, damage, cost and loss and to satisfy all judgments and decrees resulting from a claim, suit or proceeding insofar as it is based upon an allegation that the Goods or any part thereof furnished by Company is or has been infringing upon any U.S. patent, U.S. copyright or U.S. proprietary right, provided that Company is notified within ten (10) calendar days of such claim in writing and given authority, and full and proper information and assistance for the defense of same. In case the Goods, or any part thereof, in such suit are held to constitute an infringement and the use of said Goods or part is enjoined, Company shall, in its sole discretion and at its own expense, have the option as the sole remedy due from Company, to (a) procure for Distributor the right to continue using said Goods, (b) modify the Goods so that they become non-infringing, or (c) refund the purchase price less depreciation. Company has no duty to indemnify Distributor, and Distributor shall indemnify Company (including attorneys fees), if the claimed infringement is a result of (a) Distributor’s detailed specifications, (b) parts supplied by Distributor, (c) modification of the Goods by someone other than Company, or (d) Distributor’s combination of Company’s products with other products.

Drawings and Data. The Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to Goods specified in the contract and to all discoveries inventions, patent rights, etc., arising out of work done in connection with the contract and to any and all Goods developed as a result thereof, including the sole right to manufacture any and all such products. The Distributor shall not contact the Company's suppliers, or any other person, for the purpose of manufacture.

Intellectual Property Rights Reserved. Distributor acknowledges that the Goods and intellectual property rights pertaining to the Goods, and associated Tradenames are the property of Company, and that the products are being made available to Distributor in confidence and solely on the basis of its confidential relationship to Company for the purposes of distribution.

Trade Secrets; Confidential Business Information. Distributor shall not misappropriate or wrongfully disclose confidential business information of Company including pricing of Goods, product plans, or designs.

WARRANTIES

Goods Title Warranty. Company warrants that the Goods purchased by Distributor hereunder shall be free and clear of all liens and encumbrances except for Company's purchase money security interest therein.

Limited Goods Warranty. Warranties do not extend beyond the original end user. Company warrants that the parts are free from defects in material and workmanship under normal use and service for a period of one year from the date of delivery to the original end user. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS ARE LIMITED TO THE SAME PERIOD. Claimant must furnish proof of date of purchase or installation. Company will provide a replacement part, or may opt to reimburse the purchase price if that is infeasible. Company’s sole liability with respect to any defect shall be for the replacement of the defective part(s). No one is authorized to make any other warranties on behalf of Company, or modify this warranty. Company will not be liable for any pipe, valve, or line repair or replacement as a result or removing or replacing any Goods; going to an end-user’s location to teach them how to use the product; repairing damaged or failure caused by acts of God, abuse, faulty installation or removal, abnormal usage, use or application for which the product is not intended. The foregoing shall constitute Company’s sole warranty and sole liability, and is in lieu of any other warranties whether written, oral, implied, or statutory. Some states and provinces do not allow the limitation of exclusion or limitation or incidental or consequential damages and some states do not allow limitations on how long an implied warranty lasts, so the limitations or exclusions may not apply. This warranty gives its beneficiaries specific legal rights, and beneficiaries may have other rights which vary from state to state and province and province. COMPANY WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT OR OTHER INDIRECT DAMAGES WITH RESPECT TO LOSS OF PROPERTY, REVENUES, LIFE OR LIMB, PERSONAL INJURY, OR THE COST OF REMOVAL, INSTALLATION, OR REINSTALLATION, AND DISTRIBUTOR’S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS.

DURATION OF LICENSE

Term. The term of this Distributor Agreement shall be as shall be as stated in the Distributor Agreement.

Renewal. This Distributor Agreement shall automatically renew itself for a term equal to the first term, unless cancelled by either party not less than thirty (30) days prior to the expiration of the original or a renewal term.

Termination. This Distributor Agreement may be terminated by either party upon thirty (30) days written notice to the other party. The provisions of the paragraphs hereof entitled Payment, Warranties, and Proprietary Rights shall survive the termination. If terminated by Distributor, orders already accepted by Company shall be completed, but shall be paid for at the time the notice of termination is given rather than net 30. If terminated by Company, orders in process may be canceled or completed at the option of Company.

GENERAL PROVISIONS

Construction. Regardless that this contract was initially drafted by Company, the parties agree that any ambiguity herein shall not be construed by the parties or courts against Company because the parties mutually negotiated and if desired edited and revised, this Contact and reflected nay changes in the Distributor Agreement during their business discussions leading to the execution of the Distributor Agreement.

Notice or Communication. Any notice or communication required or permitted hereunder (other than routine administrative notices) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses of the Distributor and Company as shown on the Distributor Agreement or to such changed address as either party may have by the same means previously notified the other in writing.

Waiver of Default. No waiver by either of the parties to this Contract of any default or breach of any term, condition or covenant of this Contract shall be deemed to be a waiver of any other breach of the same or any other term, condition or covenant contained in this Contract. Further, the failure of a party to exercise that party's rights under this Contract upon the breach of any of the provisions hereof shall not constitute a waiver of such breach or prevent the party from enforcing strict compliance with any and all terms hereof.

Relationship of Parties. Distributor is an independent contractor and not an employee, franchisee, joint venture, partner or owner of the Company. The relationship between the parties established by this contract shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Distributor are expressly reserved to the Company.

Independence of Parties. Nothing contained in this contract shall be construed to make the Distributor or Company an agent for each other for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party.

Limitation on Authority. Distributor has no authority to act or hold itself out as an agent, employee or joint venturer of the Company, to execute contracts for or on behalf of Company, or to bind Company in any way. Distributor shall at the outset dis­close this fact to relevant parties with whom Distributor deals. Distributor has no legal authority and shall not enter into any agreement or arrangement with any person, customer or potential customer purporting to impose any legal obligation or liability on Company. Distributor will not at any time represent to any person that it has the right, power or authority to act for or bind the Company.

Assignment. This granting of this contract is based on the specific composition, reputation and makeup of the Distributor, and Distributor shall not transfer or assign same or any part thereof without the prior written agreement of Company. The Distributorship may not be sold, assigned, hypothecated, pledged as collateral, or conveyed to another without the prior written approval of the Company.

Gender; Plural. The singular includes the plu­ral, and the masculine includes the feminine, wherever necessary to effectuate the intent of this Contract.

Governing Law and Venue. This contract situs is established in the State of Florida in the United States of America. All claims, causes or action at law or equity arising out of this contract or the Goods contained herein, and all questions concerning the meaning, intention, interpretation, performance or en­forcement or validity of the terms of this contract, shall be judged and resolved in accordance with the laws of the State of Florida in the United States of America and venue for all such matters shall be in the State of Florida.

Language of Construction. This contract is written in American English, and American English shall be the language employed to construe this contract and resolve any conflict or unclarity herein.

Headings. The headings above the various provi­sions herein are to make it easier to locate the subject matter covered by various provisions, and are not to be used in ascertaining or construing the intent of the parties or the substantive content of a paragraph.

Invalid, Unenforceable, or Illegal Provisions. Should any provision of this contract be, become, or be declared invalid, unenforceable, or illegal, the remaining provisions shall be and continue in full force and effect, and the invalid, unenforceable or illegal provision shall be construed to the maximum extent possible to effectuate its intent and the intent of the rest of the contract. In the event a provision is invalid, illegal, or unenforceable, under law at any given time, it shall not be permanently stricken but rather shall be suspended, and in the event that a later change in the law makes that provision valid, legal or enforceable, then that provision automatically come back into full force and effect contemporaneously with said change in the law.

Attorneys Fees and Costs. In connection with any dispute arising out of this contract, Company is entitled to recover its attorney's fees, expert witness fees, discovery costs, investigative fees and costs, travel expenses, and court costs in trial court, in appellate courts, in bankruptcy courts, and in any arbitration to which Company might agree. Company is entitled to actual attorney's fees and costs for the perfection, establishment, enforcement and collection of any judgment, decree, or order rendered in favor of Company both throughout Florida, the United States of America, and in any foreign state, nation, or any political subdivision thereof or therein. Distributor waives all rights to claim attorney's fees against Company including those arising out of statute, Rule of Court, common law or rule of civil procedure in any state or nation.

Entire contract. This contract consti­tutes the entire agreement between Distributor and Company, and all prior and contemporaneous oral and written statements, promises, agreements, and understandings are incorporated herein, and no such agreements or representations are binding unless set forth herein. Any provisions of Distributor’s Purchase Orders which might in any way contradict, supplement, or be in addition to those in this Contract, shall not be part of the contract between the parties, shall be deemed stricken, and shall have no applicability to the sale of Goods by Company to Distributor. Acceptance of these terms is evidenced by Distributor’s signature on the shipment bill of lading or our purchase order, or payment, or physical acceptance of any of the Goods from the carrier.

Modification. No person, employee, agent, sales representative, distributor, or retail merchant has the authority to verbally or in writing modify, waive or alter, this Contract. No change or modification of this Contract shall be valid unless the same is herein posted on this website, or is set forth in a separate written paper document signed by an officer of SnapMark, Inc. listed as a then-current officer with the Florida Department of State (see www.dos.state.fl.us/). No other person has the actual authority to modify this Contract, and all apparent authority to do so is hereby publicly disavowed.

Corporate Entity; Release. Distributor acknowledges and agrees that Distributor is dealing with a corporate entity, SnapMark, Inc. in this contract, and that the persons who represent that corporation act on behalf of the corporation in their corporate capacities and not in their personal capacity. This provision is fundamental to this contract and therefor in consideration for entering into this contract Distributor releases and discharges the corporation’s officer, directors, shareholders, employees, suppliers, and software programmers of and from any and all rights, claims, damages, demands, actions, causes of action, or suits in equity, of wha­tever kind or nature, and whether accruing now or in the future, and whether known or unknown to the parties, arising out of or relating this contract. Without limitation, this release as to individual liability extends to the following grounds: failure to clearly indicate a corpo­rate capacity; failure to observe corporate formalities; transfer of corporate assets for personal use; corporate capitalization; non-filing of an Annual Return or Uniform Business Report with the Florida Secretary of the State; depletion of corporate assets for personal benefit; treating the corporation and an officer of director interchangeably or as an alter ego; tort; indemnification.

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