a. “Blackout Defense Products” means Blackout Defense products and services, which may be modified from time to time by mutual agreement of the Parties.
b. “Blackout Defense Mark” means trademarks, tradenames, and official logo of Blackout Defense.
c. “Dealer Mark” means trademarks, tradenames, and official logo of Dealer..
d. “Confidential Information” means all non-public information, including trade secrets, marketing plans, pricing, internal company information, manufacturing data, drawings, product development, and other information and data that Blackout Defense discloses to Dealer as confidential in nature, in whatever form, or that Dealer learns or observes in its dealings with Blackout Defense or that Dealer knows or has reason to know is confidential to Blackout Defense.
e. “Governmental Requirements” means any and all statutes, codes, ordinances, laws, regulations, rules, orders and decrees of all governmental authorities, whether legislative, executive, judicial, or otherwise having relevant jurisdiction under this Agreement.
f. “Taxes” means any applicable foreign, national, state or local duty, value-added, withholding or other tax or levy.
g. “Territory” means the United States of America.
h. “Parties” means Blackout Defense and/or Dealer, as the case may be.
All other capitalized terms used in this Agreement have the meaning ascribed to them where defined in this Agreement.
2. APPOINTMENT AS NON-EXCLUSIVE DEALER.
a. Blackout Defense grants Dealer the non-exclusive, non-transferable right to purchase Blackout Defense Products, and sell the Blackout Defense Products to qualified and licensed end users.
3. MARKETING AND ADVERTISING SUPPORT.
a. Blackout Defense will at its expense and discretion furnish Dealer with certain marketing and advertising support towards the sale of Blackout Defense Products, including (i) training regarding Blackout Defense Products, manufacturing processes, and quality standards; and (ii) print and digital product photography, product literature, brochures, and other material.
4. PROMOTION OF PRODUCT.
a. Dealer will provide adequate training and educational literature to its staff regarding Blackout Defense Products and use its best efforts to promote Blackout Defense Products in store, online, and at trade shows.
5. MAINTENANCE OF INVENTORY.
a. Blackout Defense agrees to undertake reasonable good faith efforts to keep an adequate inventory of product to ensure that Dealer orders ship complete within 48 hours of order placement.
b. Dealer will regularly communicate with Blackout Defense regarding its anticipated product needs in order to facilitate Blackout Defense’s efforts to ensure adequate inventory.
6. TRADEMARKS AND TRADE NAME.
a. Blackout Defense hereby grants and conveys to Dealer for the term of this Agreement a non-exclusive, non-assignable right and license to use Blackout Defense Mark for the purpose of selling, distributing, advertising, and marketing Blackout Defense Products in the Territory, as well as on packaging, promotional and advertising material associated therewith.
b. Dealer hereby grants and conveys to Blackout Defense for the term of this Agreement a non-exclusive, non-assignable right and license to use Dealer Mark for the purpose of selling, distributing, advertising, and marketing Blackout Defense Products in the Territory, as well as on packaging, promotional and advertising material associated therewith.
c. Except as expressly identified in Sections 6.a and 6.b, no other right or license is granted in this Agreement. It is understood and agreed that this license shall pertain only to the Blackout Defense Mark, Dealer Mark, and the Blackout Defense Products and does not extend to any other mark, product or service.
d. Neither Party may grant any sublicenses to any third party without the prior express written consent of the licensing Party which may be withheld for any reason.
7. INTELLECTUAL PROPERTY RIGHTS.
a. Dealer acknowledges and agrees that Blackout Defense is the owner of all right, title, and interest in and to the Blackout Defense Mark, and all such right, title and interest shall remain with the Blackout Defense. Dealer acknowledges that Dealer shall not acquire any right, title, or interest in the Blackout Defense Mark by virtue of this Agreement other than the license granted hereunder, and disclaims any such right, title, interest, or ownership. Dealer shall not contest, dispute, challenge, oppose or seek to cancel Blackout Defense’s right, title, and interest in and to the Blackout Defense Mark. Dealer shall not take any action that would interfere with or prejudice Blackout Defense’s ownership or registration of the Blackout Defense Mark, the validity of the Blackout Defense Mark or the validity of the license granted by this Agreement. Dealer shall not prosecute any application for registration of the Blackout Defense Mark, or seek to register the Blackout Defense Mark as a domain name or part of any domain name. All goodwill and reputation generated by Dealer’s use of the Blackout Defense Mark shall inure to the exclusive benefit of Blackout Defense. Dealer shall not by any act or omission use the Blackout Defense Mark in any manner that disparages or reflects adversely on Blackout Defense or its business or reputation.
b. Blackout Defense acknowledges and agrees that Dealer is the owner of all right, title, and interest in and to the Dealer Mark, and all such right, title and interest shall remain with the Dealer. Blackout Defense acknowledges that Blackout Defense shall not acquire any right, title, or interest in the Dealer Mark by virtue of this Agreement other than the license granted hereunder, and disclaims any such right, title, interest, or ownership. Blackout Defense shall not contest, dispute, challenge, oppose or seek to cancel Dealer’s right, title, and interest in and to the Dealer Mark. Blackout Defense shall not take any action that would interfere with or prejudice Dealer’s ownership or registration of the Dealer Mark, the validity of the Dealer Mark or the validity of the license granted by this Agreement. Blackout Defense shall not prosecute any application for registration of the Dealer Mark, or seek to register the Dealer Mark as a domain name or part of any domain name. All goodwill and reputation generated by Blackout Defense’s use of the Dealer Mark shall inure to the exclusive benefit of Dealer. Blackout Defense shall not by any act or omission use the Dealer Mark in any manner that disparages or reflects adversely on Dealer or its business or reputation.
c. Dealer agrees to notify Blackout Defense of any known or suspected breach of Blackout Defense’s proprietary and/or intellectual property rights, including patents and trade secrets, and upon confirmation from Blackout Defense of infringement will refrain from selling any such third party product.
a. Dealer agrees to use the Blackout Defense Mark in accordance with such quality standards as to not compromise, diminish, or disparage the Blackout Defense Mark, or as may be reasonably established by Blackout Defense and communicated to Dealer from time to time in writing.
b. Dealer agrees that the business operated by it in connection with the Blackout Defense Mark shall comply with Government Requirements in the Territory, or elsewhere as may be applicable to the operation, advertising and promotion of the business and shall notify Blackout Defense of any action that must be taken by Dealer to comply with such law, rules, regulations or requirements.
c. Blackout Defense agrees to use the Dealer Mark in accordance with such quality standards as to not compromise, diminish, or disparage the Dealer Mark, or as may be reasonably established by Dealer and communicated to Blackout Defense from time to time in writing.
d. Blackout Defense agrees that the business operated by it in connection with the Dealer Mark shall comply with all laws, rules, regulations and requirements of any governmental body in the Territory or elsewhere as may be applicable to the operation, advertising and promotion of the business and shall notify Dealer of any action that must be taken by Blackout Defense to comply with such law, rules, regulations or requirements.
a. Dealer will not disclose, publish, distribute, transfer, loan, provide, or otherwise make available Confidential Information of Blackout Defense, except as is necessary to fulfill its obligations hereunder or as may be required by law. Dealer may disclose Confidential Information to its employees and agents who have a need to know such information provided that such persons or entities are subject to a non-disclosure agreement with Dealer containing terms at least as restrictive and those contained herein. Dealer shall use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of the Confidential Information. In the event of an order from a court of competent jurisdiction to release Confidential Information, Dealer shall first notify Blackout Defense of such court order in a timely manner to allow Blackout Defense to obtain a protective order requiring that the information and/or documents so disclosed be used only for the purpose for which the order was issued.
b. Dealer agrees that all Confidential Information received is and will remain the property of Blackout Defense and that such shall not be copied or reproduced without the express permission of Discloser, except for such copies as may be absolutely necessary in order to perform tasks for the benefit of Blackout Defense. Upon written request, Dealer will either return all Confidential Information to Blackout Defense along with all copies and/or derivatives made, or destroy all Confidential Information and certify by written memorandum that all such Confidential Information has been destroyed.
c. Dealer’s obligations under this section will survive the termination of this Agreement, and will continue until such time as the Confidential Information enters the public domain, other than by reason of a breach of this Agreement.
10. PRICING AND PAYMENT.
a. Blackout Defense will permit Dealer to purchase product at the discounted price listed on the most current Blackout Defense Price List, which Blackout Defense may modify from time to time, with or without notice.
b. Dealer acknowledges that Blackout Defense may unilaterally establish a minimum advertising pricing policy, which Blackout Defense may modify from time to time, with or without notice.
c. Dealer will purchase product via the issuance of a purchase order to Blackout Defense, which Blackout Defense will acknowledge in writing. Payment of the ordered Blackout Defense Products is due as stated in the purchase order acknowledgment or net thirty (30) days from delivery, whichever is earlier in time. All payments under this Agreement must be made in United States dollars.
d. Prices and other amounts payable by Dealer hereunder do not include any amount for Taxes. Dealer shall be solely responsible for and shall hold Blackout Defense harmless from the payment of any and all present and future Taxes imposed on orders of Blackout Defense Products or other fees incurred hereunder, including reimbursement of Tombstone’s behalf (exclusive of Taxes on Blackout Defense’s net income or those for which Dealer is exempt).
11. SHIPPING AND INSPECTION.
a. All sales are final.
b. Shipping shall be F.O.B. origin and Dealer will be responsible for all shipping costs, insurance, taxes, duties, and ensuring conformance with all local laws and restrictions. At its discretion, Blackout Defense may, from time to time, offer complimentary drop off of Blackout Defense Products to Dealer’s principal place of business, located at 10011 North Metro Parkway East, Phoenix, Arizona 85051.
c. Dealer will promptly inspect each shipment within 72 hours of receipt. If any firearms are missing, Dealer will immediately report to Blackout Defense in writing the serial number of the missing firearm(s).
12. LIMITED LIFETIME WARRANTY; NO OTHER WARRANTIES.
a. Blackout Defense provides a Lifetime Limited Warranty by warranting that each product that it manufactures shall be free from defects in material and workmanship for the duration of time that the original purchaser (i.e., Dealer’s original customer) owns the product.
b. If an original purchaser submits a valid warranty claim, as well as proof of purchase, Blackout Defense, in its sole discretion, shall repair or replace the product. If Blackout Defense opts to replace the product, Blackout Defense will keep the product that it replaces. The original purchaser’s remedies under this warranty are limited to repair or replacement of the firearm. Blackout Defense will not provide cash, credit, or refund.
c. This warranty does not apply to or cover any defects associated with any parts manufactured by a third party. In addition, Blackout Defense does not warrant against any type of defect to a product that Blackout Defense did not cause, including but not limited to damage or defects arising out of, e.g.: (i) failure to provide proper care and maintenance; (ii) accidents, abuse, or misuse; (iii) barrel obstruction; (iv) hand loaded, reloaded, or improper ammunition; (v) unauthorized adjustments, repairs, or modifications, or; (vi) normal wear and tear.
d. Blackout Defense excludes and will not pay incidental or consequential damages, i.e., any loss, expense or other damage that cannot be remedied by repairing the defect or replacing the product. Blackout Defense also disclaims and excludes all implied warranties or conditions, including implied warranties or conditions of merchantability, fitness for a particular purchase, and claim of intellectual property infringement.
e. Dealer agrees that it is not a representative or agent of Blackout Defense for any purpose, and shall make no warranty, guarantee, or representation, whether written or oral, on Blackout Defense’s behalf.
f. If during and according to the Lifetime Limited Warranty, the original purchaser is entitled to and receives a refund from Blackout Defense, Dealer shall refund Blackout Defense the amount that Blackout Defense refunded to the original purchaser.
13. COVENANTS; INDEMNIFICATION.
a. Dealer shall (a) make no false or misleading representations with regard to Dealer’s relationship to Blackout Defense or Blackout Defense Products; (b) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to such matters; (c) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of Blackout Defense Products that are not contained in the most recent literature distributed by Blackout Defense; and (d) cooperate with Blackout Defense in ensuring that all end-user customers are offered and/or provided competent and professional post-sales support services.
b. Dealer shall indemnify Blackout Defense and hold it and its affiliates harmless from and against any and all liabilities and expenses whatsoever which any of them may incur or become obligated to pay arising out of or resulting from (a) Dealer’s breach of any of its obligations, agreements or duties under this Agreement; or (b) Dealer’s acts and/or omissions and those of its employees in selling Blackout Defense product.
14. DISPUTE RESOLUTION.
a. The Parties agree that if any dispute arises under the Agreement, including the
enforcement or interpretation hereof, the Parties shall submit the dispute to binding arbitration through the American Arbitration Association (AAA) in Maricopa County, Arizona, USA, before a single arbitrator selected by the Parties, or by the arbitration tribunal if the Parties cannot agree. The arbitration shall be conducted in the English language under the then current rules of the AAA. Arbitration must be initiated within two (2) years after the claimed breach occurred. Failure to initiate arbitration within that period constitutes an absolute bar to the institution of any new proceedings. The arbitrator or tribunal shall decide in accordance with the terms of this Agreement and shall take into account any appropriate trade usages applicable to the transaction. The arbitrator or tribunal shall state the reasons upon which the award is based. Both Parties have the right to confirm, correct or vacate the arbitration award. The sole and exclusive venue to confirm, correct or vacate the arbitration award is the Superior Court of Arizona, for Maricopa County.
15. TERM AND TERMINATION.
a. This Agreement shall remain valid until terminated by either Party.
b. Either Party may terminate this Agreement for any reason with written notice, including electronic mail.
c. As of the Termination Date, all rights granted to either Party under this Agreement terminate. Blackout Defense reserves the right to accelerate payment on all then-outstanding invoices and/or cancel any unshipped order for which payment has not been received by Blackout Defense. Dealer shall immediately return to Blackout Defense all Blackout Defense Products or other Blackout Defense property in Dealer’s possession or control. Notwithstanding anything to the contrary, all payment obligations and the terms of Sections 9, 10, 12, and 13 remain in effect after any termination or expiration of this Agreement.
16. GENERAL TERMS AND CONDITIONS.
a. Nothing contained in this Agreement is intended to create an employer-employee relationship or any relationship between the Parties other than that of independent companies. Neither Party has the authority to enter into any binding commitment on behalf of the other Party.
b. No waiver by either Party of any default by the other waives subsequent defaults of the same or different kind. No right may be waived and no amendment to this Agreement is effective, orally or in writing, unless in writing that references this Agreement and is signed by duly authorized representatives of each Party.
c. This Agreement shall be interpreted and enforced according to the substantive laws of the State of Arizona, excluding that body of Law known as conflicts of laws and excluding the Convention on Contracts for the International Sale of Goods.
d. As used in this Agreement, whenever a singular or plural number is used herein, the same shall refer to the plural or singular, as applicable, as well. Unless the context clearly requires otherwise, the words “hereof,” “herein” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision hereof. The terms “including” and “include” however used are not limiting and mean “including without limitation.” In the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if negotiated and drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
e. Every notice, demand, request, consent, approval or other communication hereunder (collectively, “Notice”), which a Party requires or desires to give to the other Party, must be in writing and will be deemed given: (a) on the date delivered, if given by personal delivery; (b) the second business day following deposit with a courier, if given by an internationally recognized overnight courier, charges prepaid for next-business-day delivery; or (c) the day following transmission, if given by e-mail (provided confirmation of recipient’s receipt of the e-mail is received by the sender), in each case properly addressed to the receiving Party as follows (which may be changed by written Notice to the other Party).
f. This Agreement consists of this document, its Exhibits A-C and the instruments and documents to the extent described or referenced herein and therein (all of which by this reference are incorporated into and made a part of this Agreement) and constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous understandings, relating to its subject matter. This Agreement may be executed in counterparts, each of which is deemed an original and all of which together constitutes but one and the same instrument. The individuals executing this Agreement on behalf of each Party represents and warrants to the other Party that he or she has been duly authorized and applicable law to execute this Agreement on behalf of each Party.