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TRAIL’D “BUILT FOR BEYOND” DEALER AGREEMENT

THESE TERMS AND CONDITIONS FOR DEALER AGREEMENTS ARE INCORPORATED BY REFERENCE INTO EACH DEALER AGREEMENT AND CONSTITUTE A PART OF EACH DEALER AGREEMENT AS A BINDING LEGAL AGREEMENT ENTERED INTO BY AND BETWEEN DEALER AND TRAILED, LLC (“TRAIL’D”). EACH PARTY IS SOMETIMES ALSO REFERRED TO AS “PARTY” AND COLLECTIVELY AS “PARTIES”. THESE STANDARD TERMS AND CONDITIONS ARE LOCATED AT HTTPS://WWW.TRAILEDONLINE.COM AS MAY BE MODIFIED OR AMENDED BY TRAILED AT ANY TIME AND FROM TIME TO TIME IN TRAIL’D SOLE DISCRETION. ANY MODIFICATIONS OR AMENDMENTS TO THESE STANDARD TERMS AND CONDITIONS WILL BE EFFECTIVE THIRTY (30) DAYS AFTER POSTING TO THE EXTRANET AT THE ABOVE-INDICATED URL. TRAIL’D WILL PROVIDE DEALERS WITH NOT LESS THAN THIRTY (30) DAYS NOTICE OF THE EFFECTIVE DATE OF ANY SUCH MODIFICATIONS OR AMENDMENTS THAT WOULD CHANGE THE TERMS AND CONDITIONS OF DEALER’S PARTICIPATION IN ANY PROGRAM IN WHICH DEALER PARTICIPATES AT THE TIME A MODIFICATION OR AMENDMENT IS POSTED.

OVERVIEW

Trail’d is engaged in the manufacture, sale and distribution of certain overlanding products and desires to establish a business relationship with a party (“Dealer”) to further the sale of certain overlanding products in the territory defined herein; and Dealer desires to sell certain overlanding products as defined herein.

1. DEFINITIONS

“Dealer Program” means the then-current, applicable Dealer Program, executed by both Parties, that sets forth the specifications and requirements for Dealers to participate in the Trail’d dealership program.

“Intellectual Property Right(s)” means all present and future worldwide rights in any copyrights, trademarks, trade secrets, patents, patent applications, and any mask work rights, moral rights, contract rights, and other proprietary rights recognized by the laws of any country.

“Orders” means purchase orders for Product submitted by Dealer to Trail’d under the terms of this Agreement.

“Products” means Trail’d products authorized for resale, as identified in the Dealer Program.

“Territory” means the geographical area specified in the Dealer Program, within which the Dealer is authorized to sell Products.

“Trail’d Marks” means the trademarks, trade names, and logos of Trail’d, as provided to Dealer by Trail’d in connection with Dealer’s use and promotion of the Products hereunder.

2. APPOINTMENT

Trail’d hereby appoints Dealer as a non-exclusive Dealer in the territory for the sale of products as further defined in the Dealer Program. Dealer hereby accepts such appointment in accordance with the terms and conditions set forth in this Agreement.

3. TRAIL’D RESPONSIBILITIES

3.1 Trail’d will sell Products to the Dealer, and the Dealer will purchase Products from Trail’d, according to the terms and conditions of this Agreement and at the price set forth in this Agreement; provided, however, that nothing in this Agreement will be interpreted as imposing an obligation on Trail’d to accept any given Order from Dealer.

3.2 Trail’d reserves the right to appoint other dealers in the Territory for the Products.

3.3 Trail’d reserves the right to sell and deliver Products directly to any party in the Territory.

4. DEALER RESPONSIBILITIES

Dealer, in its own name and on its own account, will use all reasonable means to effectively promote the sale of the Products in the Territory. These means include, but are not limited to:

4.1 Diligently and faithfully solicitating orders for the Products within the Territory.

4.2 Purchasing from Trail’d all requirements for Products.

4.3 Participating by mutual agreement in any advertising program.

4.4 Complying with all applicable laws and regulations and refraining from any unethical conduct or any other conduct that may damage the reputation of Trail’d.

4.5 Complying at all times with the Trail’d Minimum Advertised Price Policy.

4.6 Complying at all times with the Dealer Program.

4.7 Not appointing any sub-dealers, agents, and/or sales representatives in the Territory to sell Products, without the prior written consent of Trail’d.

4.8 Maintaining commercial property, casualty, and liability insurance in amounts customary for businesses operating in Dealer’s industry.

5. PAYMENT

5.1 Fees. Dealer shall be responsible for collecting payment for each sale made by Dealer to a party. Dealer shall pay Trail’d in accordance with the terms set forth in the Dealer Program.

6. CONFIDENTIALITY

6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.

6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

6.3 Exceptions. The Receiving Party’s obligations under the subsection titled Protection of Confidential Information with respect to any Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

6.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.

6.5 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement with terms no less restrictive than in this Agreement).

7. TRADEMARK LICENSE

Subject to the terms and conditions of this Agreement, Trail’d grants to Dealer a non-exclusive, non-transferable (except as permitted under the subsection titled Assignment), revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce the Trail’d Marks solely in connection with marketing the Products. Dealer agrees to state in appropriate places on all materials using the Trail’d Marks that the Trail’d Marks are trademarks of Trail’d and to include the symbol ^™ or ® as appropriate. Trail’d grants no rights in the Trail’d Marks other than those expressly granted in this subsection. Dealer acknowledges Trail’d is the exclusive ownership of the Trail’d Marks. Dealer agrees not to take any action inconsistent with such ownership and to cooperate, at Trail’d request and expense, in any action (including the conduct of legal proceedings) which Trail’d deems necessary or desirable to establish or preserve Trail’d exclusive rights in and to the Trail’d Marks. Dealer will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Trail’d Marks or in such a way as to create combination marks with the Trail’d Marks. Dealer will provide Trail’d with samples of all products and materials that contain the Trail’d Marks prior to their use, distribution, or display for Trail’d quality assurance purposes and will obtain Trail’d written approval prior to such initial form of use, distribution, or display. At Trail’d request, Dealer will modify or discontinue any use of the Trail’d Marks if Trail’d determines that such use does not comply with Trail’d then-current trademark usage guidelines and other policies.

8. WARRANTIES

8.1 Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.

8.2 Trail’d Warranty. TRAIL’D MAKES NO WARRANTY, REPRESENTATION OR CONDITION WHATSOEVER WITH RESPECT TO THE PRODUCTS PURCHASED, INCLUDING (I) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, USEFULNESS, QUALITY OR TIMELINESS AND (II) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

WITH RESPECT TO ANY DEFECTIVE PRODUCTS, TRAIL’D SHALL, IN ITS SOLE DISCRETION, EITHER: (I) REPAIR OR REPLACE SUCH PRODUCTS OR THE DEFECTIVE PART OR (II) CREDIT TO YOU STORE CREDIT IN THE AMOUNT PAID BY YOU FOR SUCH PRODUCTS, LESS ANY ORIGINAL SHIPPING AND HANDLING COSTS INCURRED BY US, PROVIDED THAT (I) YOU SHALL PROVIDE WRITTEN NOTICE TO US OF THE DEFECTIVE WITHIN THIRTY (30) DAYS OF DELIVERY OF THE PRODUCT AND, AT YOUR EXPENSE, RETURN SUCH PRODUCTS TO TRAIL’D; (II) TRAIL’D VERIFIES THE CLAIM THAT THE PRODUCTS ARE DEFECTIVE; AND (III) FOR PRODUCTS THAT TRAIL’D DECIDES TO REPAIR OR REPLACE, DEALER PAYS FOR ALL SHIPPING AND HANDLING CHARGES, FEES, CUSTOMS, DUTIES, TAXES AND ANY OTHER CHARGES ASSOCIATED WITH SHIPPING THE REPAIRED OR REPLACED ITEMS BACK TO DEALER.

THE REMEDIES SET FORTH IN SECTION 8.2 SHALL BE DEALER’S SOLE AND EXCLUSIVE REMEDY AND TRAIL’D ENTIRE LIABILITY.

Except as set forth in Section 8.2, Products are provided "as is" and "as available" without warranties of any kind, either express or implied.

8.3 Dealer’s Warranty. Dealer will not make or publish any false or misleading representations, warranties, or guarantees on behalf of Trail’d or its suppliers concerning the Products that are inconsistent with any warranties made by Trail’d concerning the Product.

9. INDEMNIFICATION

9.1 Indemnification by Dealer. Dealer agrees to defend, indemnify and hold harmless Trail’d from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Authorized Organization or Authorized User) resulting from or relating to:

a. any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Dealer relating to the Products other than as authorized by Trail’d in writing;
b. any claim alleging that the Dealer products, Dealer trademarks or any other products or services marketed and distributed by Dealer (aside from the Trail’d Products) infringes or misappropriates any intellectual property right or other right of a third party; or
c. any claim based on the action or inaction of Dealer or any of its agents, contractors or employees in its performance under this Agreement, unless specifically authorized in this Agreement.

Dealer’s obligations under this subsection are subject to the conditions that Trail’d give Dealer prompt written notice of any such claim, allow Dealer to control the defense and settlement of the claim, and cooperate with Dealer, at Dealer’s reasonable request and expense, in defending or settling the claim.

9.2 Indemnification by Trail’d. Trail’d agrees to defend, indemnify and hold harmless Dealer from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties alleging that the Products, or Trail’d Marks infringes or misappropriates any intellectual property right of a third party. The foregoing obligations are conditioned on Dealer notifying Trail’d promptly in writing of such action, Dealer giving Trail’d sole control of the defense thereof and any related settlement negotiations, and Dealer cooperating and, at Trail’d reasonable request and expense, assisting in such defense. In addition, if the Products become, or in Trail’d opinion are likely to become, the subject of an infringement claim, Trail’d may, at its option and expense, either (a) procure for Dealer the right to continue exercising the rights licensed to Dealer in this Agreement; (b) replace or modify the Products so that they become non-infringing and remain functionally equivalent; or (c) if Trail’d determines that neither of the alternatives in (a) or (b) is feasible, terminate this Agreement by written notice to Dealer, in accordance with the subsection titled Notices. Notwithstanding the foregoing, Trail’d will have no obligation under this subsection or otherwise with respect to any infringement claim based upon (i) any unauthorized use, reproduction, or distribution of the Products; (ii) any use of the Products in combination with other products or equipment not supplied by Trail’d; or (iii) any modification of the Products by any person other than Trail’d or its authorized agents or contractors. This subsection states Trail’d entire liability and Dealer’s sole and exclusive remedy for infringement claims and actions.

10. LIMITATION OF LIABILITY

In no event will either Party be liable for any consequential, indirect, exemplary, punitive, special or incidental damages, including any loss of use, revenues or profits, arising from or relating to this Agreement. Except as set forth in the subsection titled Indemnification, each Party’s total cumulative liability in connection with this Agreement and the Products, whether in contract or tort or otherwise, will not exceed the amount of fees paid to Trail’d by Dealer under this Agreement in the previous twelve (12) months.

11. OWNERSHIP

The Products, and all worldwide Intellectual Property Rights therein, are the exclusive property of Trail’d. All rights in and to the Products not expressly granted to Dealer in this Agreement are reserved by Trail’d.

12. TERM AND TERMINATION

12.1 Term. Unless earlier terminated pursuant to the subsection titled Termination, the term of this Agreement will begin on the Effective Date and will continue for the period listed below (“Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically be renewed for additional periods listed below (each a “Renewal Term”) unless otherwise elected by either party by providing written notice in accordance with the terms of the section titled “Termination” below. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.

Initial Term. The Initial Term of this Agreement Shall Be: One (1) year.

Renewal Term. Each Renewal Term of this Agreement Shall be: One (1) year.

12.2 Termination. This Agreement may be terminated (a) by either party at any time with or without cause for its convenience, effective upon sixty (60) days’ notice to the other party; or (b) by either party (the “Non-breaching Party”), effective immediately upon written notice to the other party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party. Either party may also terminate this Agreement if the other party makes an assignment for the benefit of creditors, or if any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy or insolvency law is initiated by the other party, or is initiated against it and not dismissed within sixty (60) days, or if the other party ceases to be actively engaged in business.

12.3 Effects of Termination.

Upon termination or expiration of this Agreement for any reason, any amounts owed to Trail’d under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and Dealer must promptly discontinue all further use of the Trail’d Marks and all further use and sale of the Products.

13. GENERAL

13.1 Survival. Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed, kept or performed after termination of this Agreement will survive the termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assignees including, without limitation, Sections 5, 6, 9 through 13.

13.2 Electronic Signatures. The parties agree that electronic signatures on this Agreement and/or future agreements between the parties will be given the full legal weight of a written or signed document, including for validity, enforceability, and admissibility.

13.3 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Arizona, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The UN Convention for the International Sale of Goods (CIGS), INCOTERMS, and the Uniform Computer Information Transactions Act or the documents related thereto will not apply. The Parties consent to the exclusive and sole jurisdiction of the state and federal court located in Maricopa County, Arizona with respect to all litigation Disputes among the parties. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. It is by the express intention of the parties hereto that the Agreement and all its related documents be drafted and interpreted in English. Neither Party shall be liable to the other Party for any dispute brought more than one (1) year after the delivery date of the product.

13.4 Export. Dealer agrees not to export, reexport, or transfer, directly or indirectly, any United States technical data acquired from Trail’d, or any products utilizing such data, in violation of the United States export laws or regulations.

13.5 Ethics. It is the intention of the Parties that business conducted under this Agreement will be performed in adherence to the highest ethical standards. Any deviations from such standards will be cause for immediate termination of the Agreement.

13.6 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Without limiting the generality of the foregoing, Dealer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision.

13.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.8 Remedies. Except as provided in the sections titled Warranties and Indemnification, the Parties’ rights and remedies under this Agreement are cumulative. Dealer acknowledges that the Products contain valuable trade secrets and proprietary information of Trail’d, that any actual or threatened breach of the sections and subsections titled Trademark License or Confidentiality or any other breach of its obligations with respect to Intellectual Property Rights of Trail’d will constitute immediate, irreparable harm to Trail’d for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. Trail’d may seek immediate injunctive relief without the requirement of posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

13.9 Assignment. This Agreement, and Dealer’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Dealer without Trail’d’s prior written consent. Trail’d may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other transaction resulting in a change of control, without consent of Dealer. Except as permitted in this Section, any attempted assignment or delegation without the other party’s prior written consent will be void and of no effect.

13.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

13.11 Independent Contractors. Dealer’s relationship to Trail’d is that of an independent contractor, and neither party is an agent or partner of the other. Dealer will not have and will not represent to any third party that it has, any authority to act on behalf of Trail’d.

13.12 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed below by personal delivery, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice by personal delivery will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

13.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

13.14 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by both parties.

By becoming an authorized Trail’d Dealer, you acknowledge that you have read and agree to these terms and conditions. If you have any questions, please don't hesitate to contact us.