Dealer Terms and Conditions
GENERAL TERMS AND CONDITIONS
Effective as of April 1, 2022
These General Terms and Conditions are incorporated in and made a part of the Distribution Agreement between Seller and Distributor. All defined terms used herein and below have the same meanings given to them in the Distribution Agreement, and vice versa. It is intended that the parties shall read and interpret these documents as part of the same contract; therefore the numbering below supplements the numbering in the Distribution Agreement. All references to Section numbers in these General Terms and Conditions shall mean and refer to the applicable sections in the Distribution Agreement, and all references to Section numbers in the Distribution Agreement shall mean and refer to the applicable Section in these General Terms and Conditions.
- Additional Shipping Terms. ROAM does not ship internationally for distributors. Distributors must use freight forwarders if interested in selling internationally. Freight charges will be assessed based on the Distributor’s designated location, which is presumed to be Distributor’s principal place of business unless alternate instructions are agreed upon in writing by ROAM. Distributors will be responsible for all charges incurred in connection with a refused shipment. ROAM designates shipping points and carrier for all shipments unless other arrangements are agreed upon in writing.
- Shipping Claims. ROAM takes pride in our shipping containers and we take added measures and expense to ensure that your order is received in good condition. Claims for any visible damage or error in shipment (such as missing boxes) must be made upon receipt of merchandise, before the driver leaves, and brought to the attention of the freight company immediately and noted on the bill of lading or similar delivery instrument with a signature from the freight party driver or representative. Such claims must be initiated with the shipping carrier directly. Claims for order discrepancies, such as concealed shortages or defective product found within a sealed shipment must be submitted to firstname.lastname@example.org.
- Stocking Program. ROAM may offer a stocking program to certain Distributors from time to time, depending on the space and availability at ROAM’s facilities, at ROAM’s sole discretion. When available, Distributors may purchase Goods and stock such Goods at ROAM’s facilities until such time as Distributor requests the Goods be shipped to Distributor’s designated location. For all Goods stocked under this program, ROAM reserves the right to buy back any and all stock at any point prior to shipping at the price that the Distributor purchased it. ROAM reserves the right to charge storage fees at any time and in any amounts for such stocking program, in its sole discretion.
- Past Due Payments; Returned Checks.
- Past due accounts (any invoice that is more than 30 days overdue) will be placed on shipping hold.
- No prompt pay discounts will be allowed on current invoices when older invoices are unpaid.
- Any returned check will be subject to a $50.00 charge.
- IF FOR ANY REASON ANY CUSTOMER CHECK IS RETURNED DUE TO NON-SUFFICIENT FUNDS, CUSTOMER WILL BE REQUIRED TO REPLACE THE ORIGINAL CHECK AMOUNT, ALONG WITH ANY ASSESSED SERVICE CHARGES, WITH A CERTIFIED BANK CHECK UPON RECEIPT OF NOTIFICATION FROM ROAM.
- Distributor grants ROAM approval to contact Distributor’s trade and bank references.
- Returns for Stock Adjustment. Stock adjustments returns of new, never installed inventory are allowed for review from January 1st through September 30th of each year. ROAM will not accept or process any stock adjustments after October 1st. All Distributors must obtain a “Return Merchandise Authorization” (RMA) prior to returning any product. The RMA number must be clearly marked on the outside of the external returned package(s). RMA number should not be written on original product packaging. Merchandise returned must be in original packaging, without writing on packaging, and resalable condition and must have been purchased by the Distributor directly from ROAM. Stock adjustment requests are limited to 1% of previous year’s purchases and must be accompanied with a two for one offsetting order. All returned merchandise is subject to a 15% restocking fee. Any missing parts or reconditioning costs will be billed to the Distributor. Freight Costs are the responsibility of the Distributor returning the Goods. Returns for discontinued products will not be accepted. All returns for stock adjustment are at the sole discretion of ROAM.
- Warranty Returns.
- All warranty returns by a customer are to be handled by the distributor where the products were originally purchased. Distributors shall not direct the customer to contact ROAM directly.
- All warranty returns must include proof of purchase complete with date of purchase. Returns will not be accepted without proof of purchase unless approved in writing by ROAM.
- An RMA must be obtained prior to returning any product. The RMA number must be clearly marked on the outside of the returned package(s). All products returned to ROAM must be freight prepaid and properly packaged.
- Disposition: Should product(s) be deemed defective we will, at our discretion, either repair the product or issue credit if product is unrepairable. ROAM will issue credit for shipping fees if product is defective and covered under warranty. If ROAM determines that product is not covered under warranty, Distributor will be notified and will have the option to either have the product shipped back to Distributor or have ROAM scrap the product. If Distributor requests that ROAM ship denied returns back to Distributor, the Distributor is responsible for shipping costs. Deductions for returned merchandise will not be honored until the merchandise has been received and inspected by ROAM and a credit memo issued. Forced deductions will result in account suspension.
- New Product Returns. ROAM reserves the right to accept or deny any new product returns. An RMA must be requested by dealer/distributor from ROAM before products can be returned.
- MAP Policy.
- ROAM has adopted a Minimum Advertised Price Policy (MAP) for all ROAM branded products. This revised policy, dated May 20, 2020, replaces any previous version. ROAM’s MAP price is equal to the MSRP on ROAM product(s).
- For purposes of this MAP policy, “advertising” is defined as any form of media including, but not restricted to forms of print, radio, television, billboards, brochures, posters, catalogs, letters, coupons, internet, E-commerce, direct mail, e-mail solicitations, e-mail newsletters, mass promotional mail, faxes, or social media, online auctions or any internet link to a website based shopping cart.
- Any attempt to advertise ROAM products at prices other than set by this MAP policy directly or indirectly, including on the internet, will be considered an attempt to undermine the MAP policy and will therefore be considered a violation of the policy.
- No part of ROAM’s MAP policy is designed to determine, control or influence the actual selling price of ROAM branded products. This MAP policy does not apply to the actual price at which products are sold in a retail location, over the telephone or in response to a customer inquiry. This MAP policy does not apply to signs or price tags located within a physical retail store and not visible from outside of a retail store. Authorized ROAM Dealers/ Distributors are free to set the actual retail price of each ROAM product.
- ROAM products have been established as a premium brand with a reputation for high quality and performance. ROAM has invested considerable resources in marketing and product development to build and maintain this reputation, establish a favorable marketing position and generate goodwill toward the ROAM brand.
- ROAM supports and enforces our MAP Policy to prevent advertising that tends to depreciate or degrade the image and position of the ROAM brand, products and trademarks in the marketplace and to maintain a quality brand reputation. By adopting a MAP policy, ROAM Distributors benefit from enhanced profitability, loyalty and product image.
- Trademarks and Service Marks. The following trademarks and service marks are licensed for Distributor’s use:
- Facilities, Inventory, and Marketing Obligations.
- Distributor Obligations. Distributor shall:
- market, advertise, promote, and sell the Goods to Customers in a manner that reflects favorably at all times on Goods and the good name, goodwill and reputation of Seller and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the Goods;
- maintain a place or places of business, including adequate office, storage, and warehouse facilities and all other facilities as required for Distributor to perform its duties under this Agreement in a location or locations approved by Seller;
- purchase and maintain at all times a representative quantity of each Good sufficient for and consistent with the Distributor’s Customers’ sales needs;
- have sufficient knowledge of the industry and products competitive with each Good (including specifications, features, and benefits) so as to be able to explain in detail to Customers:
- the differences between the Good and competing products; and
- information on standard protocols and features of each Good;
- observe all directions and instructions given to it by Seller in relation to the marketing, advertisement, and promotion of the Goods, including Seller’s sales, marketing, and merchandising policies as they currently exist or as they may hereafter be changed by Seller;
- not use any promotional and marketing materials, whether prepared by Distributor or others, without the prior written consent of Seller.
- establish and maintain a sales and marketing organization sufficient to develop to the satisfaction of Seller the market potential for the sale of the Goods, and independent sales representatives, facilities, and a distribution organization sufficient to make the Goods available for shipment by Distributor to each Customer immediately on receipt of order;
- develop and execute a marketing plan sufficient to fulfill its obligations under this Agreement;
- not make any materially misleading or untrue statements concerning Seller or the Goods, including any product disparagement or “bait-and-switch” practices;
- promptly notify Seller of any complaint or adverse claim about any Good or its use of which Distributor becomes aware;
- submit to Seller complete and accurate monthly reports regarding inventory, marketing, and sales of the Goods in a computer-readable format and containing the scope of information acceptable to Seller, maintain books, records, and accounts of all transactions and permit full examination thereof by Seller in accordance with Section 19;
- not resell Goods to any federal, state, local, or foreign government or political subdivision or agency thereof, without express written approval from Seller;
- not advertise or sell Goods on any third-party reseller or distribution site (such as Amazon, E-bay, etc.) without Seller’s prior written consent, which may be withheld in its sole discretion;
- on request, provide Seller with a written survey of the current and six (6)-month forecast of demand for the Goods, especially in relation to similar or competing products; and
- only resell any software or accessories sold, bundled, or packaged with any Good on those terms and conditions as Seller may, from time to time, require.
- Seller Obligations. Seller shall:
- provide any information and support that may be reasonably requested by Distributor regarding the marketing, advertising, promotion, and sale of Goods;
- allow Distributor to participate, at its own expense, in any marketing, advertising, promotion and sales programs or events that Seller may make generally available to its authorized distributors of Goods, provided that Seller may alter or eliminate any program at any time;
- approve or reject, in its discretion, any promotional information or material submitted by Distributor for Seller’s approval; and
- in Seller’s discretion provide promotional information and material at Distributor’s sole cost and expense for use by Distributor in accordance with this Agreement.
- Audit and Inspection Rights. During the term of this Agreement, on request and during regular business hours, Seller or its representatives may at its own expense reasonably inspect Distributor’s facility and audit Distributor’s books, records, and other documents as necessary to verify compliance with the terms and conditions of this Agreement.
- Term; Termination.
- Term. The term of this Agreement commences on the date set out in the preamble of this Agreement until terminated as provided under this Agreement or applicable law (the “Term”).
- Termination Rights. Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement and the appointment of Distributor under Section 1, for any or no reason, at any time upon written notice to the other Party, and said termination shall become effective thirty (30) days following the delivery of such notice, except where a shorter period is provided for in this Agreement. In addition to any remedies that may be provided in this Agreement, Seller may immediately terminate this Agreement (including all related purchase orders pursuant to Section 20.3(a)), upon notice to Distributor if Distributor:
- fails to pay any amount when due under this Agreement;
- is in breach of this Agreement or any of the policies, standards, or terms of Seller and either the breach cannot be cured or, if the breach can be cured, it is not cured within ten (10) days following Seller’s receipt of notice of such breach;
- if Distributor:
- becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
- files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
- seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;
- makes or seeks to make a general assignment for the benefit of its creditors; or
- applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement:
- All related purchase orders are automatically terminated; and
- Distributor shall cease to represent itself as Seller’s authorized distributor regarding the Goods, and shall otherwise desist from all conduct or representations that might lead the public to believe that Distributor is authorized by Seller to sell the Goods;
- Distributor shall promptly return or destroy (pursuant to Seller’s instructions) all:
- documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Confidential Information; and
- products that Seller provided to Distributor that are not intended for resale.
- Option to Repurchase. Within ten (10) days after the effective date of termination, Distributor shall submit to Seller a written schedule reflecting all Goods then owned by Distributor or in the Distributor’s possession. Upon notice within thirty (30) days following its receipt of such schedule from Distributor, Seller shall have the right, but not the obligation, to buy back all or a portion of such Goods, free of all liens, claims or encumbrances, at a price equal to the lower of Distributor’s cost therefor and the then-prevailing price, minus a 15% restocking fee, pursuant to the following procedures. Distributor shall promptly deliver, at Seller’s reasonable expense, the repurchased Goods in their original packaging (unopened and undamaged) to Seller’s designated carrier for delivery to Seller. Seller has the right to set off or recoup any liability it owes to Distributor under this Section 20.4 against any liability for which Distributor is liable to Seller, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
- Confidential Information.
- in the public domain;
- known to Distributor at the time of disclosure; or
- rightfully obtained by Distributor on a non-confidential basis from a third party.
- Limited Product Warranty; Disclaimer.
- Seller shall have no obligation under the warranty set forth above if Distributor or Customer:
- fails to notify Seller in writing during the warranty period of a non-conformity; or
- uses, misuses, or neglects the Good in a manner inconsistent with the Good’s specifications or use or maintenance directions, modifies the Good or improperly installs, handles or maintains the Good.
- Except as explicitly authorized in this Agreement or in a separate written agreement with Seller, Distributor shall not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Goods it sells to Customers. Distributor shall not provide its own warranty regarding any Good.
- EXCEPT FOR THE WARRANTIES SET OUT UNDER SECTION 22, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES FOR DISTRIBUTOR’S BENEFIT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. DISTRIBUTOR ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF.
- Indemnification. Subject to the terms and conditions of this Agreement, Distributor shall indemnify, hold harmless, and defend Seller and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Seller arising out of or occurring in connection with:
- Distributor’s acts or omissions as Distributor of the Goods, including breach of this Agreement;
- Distributor’s advertising or representations that warrant performance of Goods beyond that provided by Seller’s written warranty or based upon Distributor’s business or trade practices;
- any failure by Distributor or its personnel to comply with any applicable Laws; or
- allegations that Distributor breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement.
- Limitation of Liability.
- IS SELLER OR ANY SELLER REPRESENTATIVE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF:
- WHETHER THE DAMAGES WERE FORESEEABLE;
- WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND
- THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED.
- SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SELLER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000.00, WHICHEVER IS LESS.
- THE FOREGOING LIMITATIONS APPLY EVEN IF THE DISTRIBUTOR’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Insurance. During the Term, Distributor shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000.00 for each occurrence and $1,000,000.00 in the aggregate with financially sound and reputable insurers. Except where prohibited by law, Distributor shall require its insurer to waive all rights of subrogation against Seller’s insurers, Seller and the other Indemnified Parties.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth on the Signature Page(s) (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by email, personal delivery, nationally recognized overnight courier, or certified or registered mail (in each applicable case, return receipt requested and postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Amendments. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Distributor’s rights under Sections 4.3 and 22 are Distributor’s exclusive remedies for the events specified therein.
- Assignment. Distributor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Distributor of any of its obligations hereunder. Seller may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Distributor’s prior written consent.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- No Third-Party Beneficiaries. Subject to the next sentence, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person (including any Customer) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. The Parties hereby designate Indemnified Parties as third-party beneficiaries of Section 23 with the right to enforce such Section 23.
- Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, in any forum other than the United States District Court, District of Arizona or, if such court does not have subject matter jurisdiction, the courts of the State of Arizona sitting in Pima County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court, District of Arizona or, if such court does not have subject matter jurisdiction, the courts of the State of Arizona sitting in Pima County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 26, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- No Franchise or Business Opportunity Agreement. The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Seller and Distributor. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Distributor has the sole discretion to determine Distributor’s methods of operation, Distributor’s accounting practices, the types and amounts of insurance Distributor carries, Distributor’s personnel practices, Distributor’s advertising and promotion, its Customers, and Distributor’s service areas and methods. The relationship created hereby between the Parties is solely that of seller and distributor. If any provision of this Agreement is deemed to create a franchise relationship between the Parties, then Seller may immediately terminate this Agreement.
“Agreement” has the meaning set out in the preamble to the Distribution Agreement and includes all schedules and exhibits hereto, including these General Terms and Conditions.
“Confidential Information” has the meaning set out under Section 21.
“Customer” means a purchaser that is an individual or entity and has acquired a Good from Distributor for its own internal use or incorporation into its own products.
“Designated Location” means that location designated by Distributor as the delivery location for Goods purchased by Distributor and delivered by a carrier pursuant to Section 4.
“Distributor” has the meaning set out in the preamble.
“Force Majeure Event” has the meaning set out in Section 36.
“Good” means any good that is identified in Seller’s then-current product list, as it may be revised pursuant to 2.4 from time to time.
“Indemnified Party” has the meaning set out under Section 23.
“Party” has the meaning set out in the preamble.
“Seller” has the meaning set out in the preamble.
“Term” has the meaning set out under Section 20.