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  • AGREEMENTS A. Appointment and Acceptance 1. INTUITIVE hereby appoints DEALER as an authorized dealer for INTUITIVE product line, which is hereinafter referred to as “INTUITIVE Products”. 2. DEALER’s appointment hereunder is non-exclusive. B. Performance and Marketing Standards 1. DEALER shall make no representations with respect to INTUITIVE Products specifications or features except as published by INTUITIVE. 2. DEALER shall comply with all applicable federal, state, and local laws (including rules and regulations) in performing its duties hereunder and in any of its dealings with INTUITIVE or INTUITIVE Products, including providing for the proper display or warranty information for INTUITIVE Products. C. Marketing and Sale of INTUITIVE Products 1. INTERNET SALES OF INTUITIVE PRODUCTS ARE NOT ALLOWED. 2. DEALER shall not offer to sell or sell INTUITIVE Products from any of its outlets which have not been authorized by INTUITIVE in writing. A list of DEALER’s other authorized outlets shown at the beginning of this Agreement, and as attached to the end of this agreement. 3. DEALER shall not sell or otherwise transfer INTUITIVE Products to any person or entity for resale, other than an authorized INTUITIVE dealer. D. Exclusions of Implied Warranties and Limitations on Damages UNLESS UNENFORCEABLE OR UNLAWFUL UNDER APPLICABLE LAW: 1) The dealer acknowledges that no warranties with regard to INTUITIVE products, whether of merchantability or fitness for a particular purpose or otherwise, are created by this agreement and INTUITIVE hereby disclaims and excludes all implied warranties of merchantability or fitness for a particular purpose. Any warranty against infringement that may be provided in the uniform commercial code and/or in any other comparable state statute is expressly disclaimed. 2) The liability of INTUITIVE, if any, for damages for any claim of any kind whatsoever and regardless of legal theory, with regard to any order placed by the dealer hereunder, regardless of delivery or non-delivery of such products, or with respect to the products covered thereby, shall not be greater than the actual purchase price of the products with respect to which such claim is made. Under no circumstances shall INTUITIVE be liable to DEALER for compensation, reimbursement or damages on account of the loss of present or prospective profits, expenditures, investments or commitments. Whether made in the establishment, development or maintenance of business reputation or good will or for any other reason whatsoever, in no event shall INTUITIVE be liable to the dealer for special, incidental or consequential damages. E. Prices, Terms, and Shipments 1. DEALER acknowledges that they can receive a CONFIDENTIAL DEALER PRICE SHEET upon request, (hereinafter referred to as the “Schedule”) which the parties agree is an integral part of this Agreement. The parties acknowledge that the price set forth in the Schedule are in U.S. dollars and shall be paid in U.S. dollars. All prices are FOB, Phoenix, Arizona. 2. DEALER shall have no claim against INTUITIVE for failure to furnish parts or products of the model, design or type previously sold. 3. When a new Schedule is used by INTUITIVE, it shall become part of this Agreement and shall automatically supersede all prior inconsistent Schedules as of its effective date 4. INTUITIVE shall not be liable to dealer for any damage, whether incidental, consequential or otherwise, for failure to fill orders, delays in delivery and/or any error in filling orders. 5. INTUITIVE may make partial shipments of DEALER’s orders, which shipments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. 6. Regardless of which party pays freight charges, all risk of loss or damage in transit shall be borne by DEALER. INTUITIVE shall, to the extent reasonably possible, assist DEALER in making claims with carriers in the event of such loss or damage. DEALER agrees to use its best efforts to notify INTUITIVE within 30 days of any such loss or damage. F. Relationship of INTUITIVE and DEALER INTUITIVE and DEALER agree that their relationship is that of buyer and seller only. Nothing stated in the Agreement shall be construed as creating any other relationship (such as franchiser and franchisee, employer and employee, principal and agent, master and servant, or joint venturers) between the parties. DEALER shall be deemed an independent contractor at all times and has no express or implied right, power or authority to assume or create any obligation on behalf of INTUITIVE. DEALER shall not perform any act or make any representation which, in the opinion of INTUITIVE, may create in inference that DEALER is an agent, representative, or employee of INTUITIVE. G. Indemnification DEALER agrees to indemnify and hold INTUITIVE harmless from and against any and all liability, damage, claims or expenses whatsoever (including cost and attorney’s fees) arising out of or relating to the acts or omissions of DEALER, its employees or agents, in connection with the duties of DEALER under this Agreement, or incurred by INTUITIVE in successfully enforcing any provision of this Agreement. H. Trademarks DEALER shall not attach any additional trademarks or trade designations to INTUITIVE Products, shall not remove, deface, alter or obscure any INTUITIVE trademark affixed to the INTUITIVE Products, and shall not affix any INTUITIVE trademark to products other than those covered by this Agreement. I. Assignability of Agreement DEALER shall not assign, transfer or sell its rights under this Agreement or delegate its obligations hereunder without the prior written consent of INTUITIVE. J. Duration of Agreement/Termination INTUITIVE and DEALER agree that: 1. This Agreement shall automatically renew for successive one-year terms, unless terminated sooner in accordance with the provisions of this section. Unless otherwise provided by applicable law, either DEALER or INTUITIVE may terminate this Agreement with or without cause at any time as to any and all authorized outlets. Termination of this Agreement by either party shall automatically cancel all unfilled orders. K. Waiver The waiver of or the failure to enforce any rights under this Agreement in a particular instance shall not operate as a waiver of the same or different rights in subsequent circumstances. L. Notices All notices and other communications required or permitted hereunder shall be in writing and shall be served by certified mail (return receipt requested), by E-mail or by facsimile. Service shall be deemed complete upon expiration of the one business day after transmission or delivery. The addresses to which notices and communications shall be delivered shall be those contained in this Agreement as the principal business address of the parties, unless changed by notice served on either party by the other. M. Miscellaneous 1. In the event that any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 2. This Agreement, including all matters of construction, validity and performance shall be governed and construed in accordance with the laws of the State of Arizona, venue of any dispute shall be Maricopa County, Arizona. 3. This Agreement shall become effective only upon its execution by DEALER and its further execution by INTUITIVE. 4. This Agreement constitutes the entire understanding of the parties concerning the subject matter contained herein. Any and all agreements, whether oral or written, previously existing between the parties pertaining to the subject matter of this Agreement are expressly canceled. Except as otherwise provided in this Agreement, a modification of the Agreement must be in writing and signed by both parties. N. Sales Quota 1. To maintain a direct dealer status, a total of $1,000 yearly purchases must be made. 2. An opening order of $100 minimum must be made within the first 30 days of entering this agreement. Violation of any portion of this article shall be grounds for the immediate termination of this Agreement.
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