Authorized WD Agreement Terms

1.  Appointment   Subject to the terms and conditions of this Agreement, PHOENIX SYSTEMS appoints the WD and the WD agrees to perform as PHOENIX SYSTEMS’s Nonexclusive Authorized WD for the Products during the Term.  (For certain definitions of capitalized terms, see Section 5 of this Agreement.)  Except as expressly authorized in writing by PHOENIX SYSTEMS, the WD agrees to submit orders for item(s) of the Products to Phoenix Systems during the Term and, subject to the prices and Terms and conditions of sale to purchase from Phoenix Systems such item(s) described in each such order.

2.  Responsibilities  Except as otherwise approved in writing by PHOENIX SYSTEMS in advance, the WD will do each of the following:  (a) promote the sale and use of the  Products;  (b) promptly  and effectively  respond  to questions  and service  requests from  Customers (Dealers, jobbers, consumers) and prospective Customers; (c) represent the Products in an ethical and professional manner and refrain from any conduct that is or could be detrimental to the reputation or integrity of the WD and PHOENIX SYSTEMS or either thereof; (d) use the Intellectual Property only as permitted by PHOENIX SYSTEMS; (e) refrain from questioning or challenging the rights claimed by PHOENIX SYSTEMS or its Affiliate(s) in the Intellectual Property or assisting in any way any other(s) in doing so; (f) comply with all laws and all of the PHOENIX SYSTEMS Policies; and (g) promptly and in timely fashion comply with whatever request may be made by PHOENIX SYSTEMS relating to any law or expectation thereof or the modification or recall of any or all of the Products; (h) ensure WD’s Customers comply with all applicable Phoenix Systems Policies including, but not limited to: MAP Pricing Policy and Reseller Terms.

3.  Termination   This Agreement will terminate when either Party provides the other Party with written notice of termination, and such termination shall be effective:  (a) no sooner than the date of receipt of such notice in the event of a material breach of this Agreement by such other Party; (b) no less than forty-five (45) days after such receipt for termination on other grounds (which may be with or without cause);  or (c) as provided in Section 4(e)(ii) of this Agreement.   Upon termination of this Agreement, the WD shall immediately cease all use of anything which would give the impression that the WD is an authorized WD or representative of or for the Products or has any affiliation whatsoever with PHOENIX SYSTEMS or the Products (except only with respect to the WD’s inventory of the Products at the time of termination).

4.  Miscellaneous

a)      This Agreement and any and all duties and obligations hereunder may not be delegated, transferred or assigned by the WD without the express written consent of PHOENIX SYSTEMS.    Each delegation, transfer or assignment by the WD without such consent shall be void.  The relationship between PHOENIX SYSTEMS and the WD shall be that of independent contractors, and nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture or franchise between PHOENIX SYSTEMS and the WD or shall constitute or be deemed to constitute the WD as agent of PHOENIX SYSTEMS for any purpose whatsoever.  The WD shall have no authority or power to bind PHOENIX SYSTEMS or to contract in the name of and create a liability against PHOENIX SYSTEMS in any way for any purpose.

b)      At any time and without prior notice:  (i) PHOENIX SYSTEMS may modify any or all of the PHOENIX SYSTEMS Policies and (ii) any or all item(s) of the Products may change, in which case, the WD acknowledges and agrees that each of the Distributors may without liability or penalty cancel all pending orders (even if accepted) from the WD for such changed item(s) and refuse to accept any new orders from the WD for such item(s). Except as otherwise expressly provided in this Agreement, each modification of the PHOENIX SYSTEMS Policies shall be effective immediately, unless PHOENIX SYSTEMS notifies the WD in writing of another effective date.  PHOENIX SYSTEMS’s interpretation of each of the PHOENIX SYSTEMS Policies will control.

c)      This Agreement shall be governed by and interpreted under the laws of the State of  Utah without regard to that state’s conflicts of laws provisions.  Any and all disputes arising out of or relating in any way to this Agreement between the Parties (or the Affiliate(s) of either) shall be litigated at the trial level as a bench trial only in federal or state court in Salt Lake City, Utah.  The WD, on behalf of itself and its Affiliate(s), hereby submits to personal and subject matter jurisdiction in such courts and agrees that nether the WD nor the WD’s Affiliate(s) will contest venue.

d)      Time is of the essence of this Agreement.  This Agreement shall be deemed to reflect the mutual intent of the Parties, and no rule of strict construction shall be applied against either Party.   PHOENIX SYSTEMS shall not be liable for loss, damage or delay resulting from any cause whatsoever beyond its reasonable control.  In no event shall PHOENIX SYSTEMS be liable for consequential, incidental or special damages, loss or expense to any or all of the WD, purchaser(s) or user(s) for any reason(s) whatsoever.   In the event of any conflict between the PHOENIX SYSTEMS Policies and this Agreement, the PHOENIX SYSTEMS Policies will control.  Wherever required by the context hereof, each pronoun used herein shall be deemed to include both the singular and the plural and to encompass each gender.

e)      If applicable law contains any requirement that is contrary to, conflicts with or is missing from any provision(s) or part(s) thereof in this Agreement, PHOENIX SYSTEMS, at any time, may elect by written notice to the WD (effective upon receipt thereof or as otherwise designated by PHOENIX SYSTEMS therein) that:   (i) such requirement be substituted for or added to such provision(s) or part(s) thereof to the minimum extent necessary to validate such provision(s) or part(s) thereof or (ii) this Agreement be terminated.  If any provision(s) or part(s) thereof in this Agreement shall be held invalid, the remainder of this Agreement shall continue in full force and effect, and each such provision or part thereof shall be deemed not to be part of this Agreement.

f)       This Agreement and each of the PHOENIX SYSTEMS Policies, as modified from time to time:  (i) constitute the entire understanding of the Parties binding upon them; (ii)  are intended  to govern the relationship  between the Parties;  (iii)  supersede all agreements,  representations or statements between the Parties,  either  oral or written;  and (iv)  except as otherwise  provided  herein,  may be  amended or modified  only by a written supplement, duly executed by both of the Parties.

g)      Except as otherwise provided in this Agreement or as the Parties otherwise may expressly agree in writing, no failure, refusal, neglect, delay, waiver, forbearance or omission by PHOENIX SYSTEMS to exercise any right(s) under this Agreement or to insist upon full compliance by the WD with the WD’s duties, obligations or restrictions hereunder shall constitute a novation or waiver of any provision(s) of this Agreement or otherwise thereafter limit PHOENIX SYSTEMS’s right to fully enforce any or all of the provision(s) and part(s) thereof of this Agreement.

h)      The following shall survive the termination of this Agreement:  (i) Sections 1 and 2(c) through 5 of this Agreement; (ii) each of the definitions contained in this Agreement; and (iii) each of the PHOENIX SYSTEMS Policies which by its own terms expressly states that it survives the termination of this Agreement or which PHOENIX SYSTEMS otherwise designates as so surviving.

i)       Each notice described in this Agreement to either Party must be in writing and shall be sent to the intended recipient (with all fees paid) by certified mail, express courier service, facsimile or e-mail to such recipient’s address referred to on the first (1st) page of this Agreement and shall be considered effective or received when actually received or refused by such recipient, provided that the sending Party has written confirmation thereof and such refusal was not due electronic or mechanical malfunction or failure.

5.  Certain Definitions.  For purpose of this Agreement:  (a) “Nonexclusive Authorized WD” means that (i) the WD may hold itself out as a WD authorized by PHOENIX SYSTEMS  for the Products during the Term and (ii) PHOENIX SYSTEMS may offer and sell anywhere and everywhere any or all of the Products and anything else directly or indirectly to one or more individuals and entities other than the WD; (b) the “Products” means those products made available to the WD by PHOENIX SYSTEMS to sell to the Customer; (c) the “Term” means the period from the Effective Date until this Agreement is terminated pursuant to Section 3 hereof; (d) the “Intellectual Property” means any or all of the patents, designs, trademarks, service marks, trade names, commercial  symbols,  copyrights,  data, data bases, market  information,  trade  secrets and confidential  information  in  which  PHOENIX SYSTEMS  or  its Affiliate(s) claim(s) rights; (e) “Affiliate(s)” means any or all of the individual(s), entity and entities controlling, controlled by or under common control with the Party identified; (f) the “PHOENIX SYSTEMS Policies” means collectively the then-current version(s) of the announcements and policies (whether in the form of correspondence, memoranda, notices or otherwise) from time to time issued in writing or made available electronically by PHOENIX SYSTEMS to the WD and not expressly excluded by PHOENIX SYSTEMS from the PHOENIX SYSTEMS Policies; and (g) a “Party” means PHOENIX SYSTEMS or the WD and the “Parties” means PHOENIX SYSTEMS and the WD.

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