DISTRIBUTOR AGREEMENT

This Distributor Agreement (“Agreement”) is made and entered into by and between Posh Tech LLC, a California Limited Liability Corporation (“Company”) and ____________________________________ (“Distributor”) dated effective as of the ____ day of _____________, 20___.

WHEREAS, Company desires to appoint Distributor as an independent agent to market and promote the sale of 'CONNECT CHARLIE' that is produced and marketed by Company (the “Product”), and Distributor desires to accept such appointment, all upon the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

• 1. Appointment

  Company hereby appoints Distributor as an authorized Company distributor of the product of the Company subject to the terms of this Agreement. The appointment by Company granted to Distributor shall be the right to purchase, promote and resell the Product in accordance with this Agreement.

• 2. Non-exclusive Rights of Distributor

  The Company appoints the Distributor as a non-exclusive distributor of the Product for the term of this Agreement. The distributor will act with the highest standards of business ethics, honesty and integrity so that the reputation and good will of Company will not be adversely affected by any acts or omissions of Distributor. The Company reserves the right to refuse to sell at any time to the Distributor, if Distributor operates in a manner inconsistent with the Distributor’s obligations and undertakings herein and reserves the further right to demand return, at Distributor’s cost, of the Product held by Distributor at or after the time that Distributor’s violation of this agreement, or violation of any other agreement between the Company and Distributor, is discovered by the Company.

• 3. Terms of Sale; Delivery of Product

  All sales pursuant to this Agreement shall be made by the Company to the Distributor at such prices and on such terms as the Company shall establish from time to time. The Company will make deliveries to the Distributor in accordance with the terms of a purchase order presented by the Distributor and accepted by the Company. Each order shall specify the number of units to be shipped, the type of units to be shipped (as identified by Company model number designations indicated in the Price List) including all optional features, the desired method of shipment and the installation site. Payment shall immediately be made upon invoice by check, bank wire or credit card unless net terms have been previously agreed upon. The Distributor shall pay a late charge on any delinquent amount compounded and computed daily at the lesser of (i) 1.5% per month, or (ii) the highest rate permitted by law. Title to the Product shall be deemed to transfer from Company to Distributor, and all risks of loss associated with ownership of the Product shall transfer to the Distributor, when Company places the Product in the possession of a third party for delivery to Distributor. All prices stated are FOB the Company’s offices. Prices do not include transportation costs which shall be borne by Distributor. Prices do not include federal, state or local taxes applicable to the product sold under this Agreement. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Distributor shall pay such amount to the Company unless Distributor provides Company with a valid tax exemption certificate authorised by the appropriate taxing authority. The company requires a minimum purchase quantity which is to be stated in the distributor price list. Promptly upon the receipt of a shipment of Product, Distributor shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged. Within 7 days of receipt of the shipment, Distributor shall notify Company in writing of any shortages, defects or damage which Distributor claims existed at the time of delivery. Within 7 days after the receipt of such notice, Company will investigate the claim of shortages, defects or damage, inform Distributor of its findings, and deliver to Distributor Product to replace any which Company determines, in its sole discretion, were in short supply, defective or damaged at the time of delivery.

• 4. Warranty.

  Company warrants that Distributor shall acquire Product purchased hereunder free and clear of all liens and encumbrances. Company further warrants the Product to be free from defects in material or workmanship under normal use and service for a period of twelve (12) months from the date of delivery. If there is a defect detected in a unit within twelve (12) months and found to be within this scope of the warranty then it will be replaced by Company and all charges for shipment, will be borne by Company. If it is determined that either no fault exists in Company, or the damage detected was caused by negligence of Distributor, its agents, employees or customers, Distributor agrees to pay all charges associated with each such replacement. THIS CONSTITUTES THE SOLE WARRANTY MADE BY COMPANY EITHER EXPRESSED OR IMPLIED. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AND DISTRIBUTOR’S REMEDIES SHALL BE LIMITED TO REPLACEMENT OF NONCONFORMING UNITS.

• 5. Misuse of product

  Any tampering, misuse or negligence in handling or use of Product renders the warranty void. Further, the warranty is void if, at any time, Distributor attempts to make any internal changes to any of the components of the Product; if at any time the power supplied to any part of the Product exceeds the rated tolerance; if any external device attached by Distributor creates conditions exceeding the tolerance of the Product; or if any time the serial number plate is removed or defaced. OPERATION OF THE PRODUCT THAT RENDERS THIS WARRANTY VOID WILL BE DEFINED TO INCLUDE ALL OF THE POSSIBILITIES DESCRIBED IN THIS PARAGRAPH, TOGETHER WITH ANY PRACTICE WHICH RESULTS IN CONDITIONS EXCEEDING THE DESIGN TOLERANCE OF THE PRODUCT.

• 6. Sales Efforts by Distributor; Duties of Distributor

  Distributor will diligently develop and promote the sales of the Product covered by this Agreement to the satisfaction of the Company. Distributor shall have the authority to sell the Product at any price which Distributor believes will be accepted by the market for the Product without regard to the Company’s suggested retail price or minimum advertised price; provided, however, if Company chooses to enforce suggested retail price or minimum advertised price, Distributor will advertise and market the Product in accordance with the Company’s suggested retail price or current minimum advertised pricing policy, as amended from time to time by Company at its sole discretion. The Distributor agrees that the Distributor’s advertising of Product must comply with policies of the Company and agrees to discontinue any advertising that is disapproved by the Company. The Distributor will provide an adequate sales staff and customer relations organization trained to instruct customers in the use of the Product.
  
  Distributor shall make no promises, representations or commitments which are not within the authority granted to Distributor hereunder, including, without limitation, accepting the return of or making any allowance with respect to the Product without the prior written approval of the Company, and make no warranties or promises to customers with respect to the condition, quality, composition, capabilities or otherwise of the Product which are not specifically made or given in writing by the Company (if any) to customers.
  
  Distributor shall recognize, both during and after the term of this Agreement, and without limiting the exclusive right and ownership of the Company in and to all names, trade names, trade or service marks, patents, copyrights and all other intellectual properties used by the Company in connection with the Product and Company’s business, and to market and sell the Product only under the trade or service marks and trade names regularly applied to them by the Company and otherwise in accordance with the below.

• 7. Duties of the Company. The Company agrees to:

  Provide sales and technical assistance to Distributor similar to that provided by the Company to its other independent sales agents, if any.
  
  a) Furnish Distributor with a reasonable amount of such promotional and sales materials (in the English language) as the Company, in its sole discretion, generally prepares in regard to the Products.
  
  b) Identify Distributor in such of the Company’s promotional materials as the Company may, in its sole discretion, deem appropriate.
  
  c) Sell Product to Distributor as provided herein; provided, however, that the Company shall not be liable for any loss or damage caused by its nonacceptance or delay in acceptance of orders submitted by a Distributor which are not in compliance with all applicable procedures, policies, rules and regulations of the Company, nor for failure or delay in meeting any order of Distributor or in performing any other duty or obligation hereunder arising from or to any capacity or production limitations affecting the Company or any failures or delays (for whatever reason) by any vendors or suppliers of the Company, with the Company reserving the right to allocate its Product and services in such amounts and manner as it deems appropriate, in its discretion.

• 8. Marketing

  If Distributor wishes to sell and promote the Product on their website, distributor must provide web site address or addresses. Distributor agrees to abide by the minimum advertised price standards if established by the Company. Distributor may sell at or above minimum standard pricing but not below. Minimum pricing standards are subject to change at any time. Distributor agrees to not sell Company product on eBay.com or Amazon.com or any other third party websites, either directly or via data-feeds, or indirectly through links, or affiliate programs. Our approved Internet retailers may only use their own websites and those listed herein to display and sell the Product.

• 9. Trademarks for the Company

  Distributor is hereby granted a limited, nonassignable and nontransferable right to use the Company’s trade or service marks and trade names in distributing, advertising and promoting the sale of the Product, but only in strict accordance with the Company’s policies regarding the use of its trade or service marks and trade names. The rights conferred herein shall cease and terminate immediately upon notice to cease such use provided by Company or, without notice, upon the termination of this Agreement, and Distributor agrees to take, at its sole cost and expense, all such steps as are necessary or appropriate to cease all use of the Company’s trade or service marks and trade names in such event. Notwithstanding anything herein or otherwise which may appear to be to the contrary, the Company’s trade or service marks and trade names shall at all times be and remain the sole and exclusive property of the Company, and the Company reserves all rights in and to the same. Distributor agrees to use its best efforts to notify the Company of any and all infringements of the Company’s trade or service marks or trade names pertaining to the Product which may come to the Distributor’s’ attention during the term hereof and to assist the Company in taking such action against said infringement as the Company, in its sole discretion, may decide.

• 10. Proprietary and Confidential Information

  Distributor acknowledges and agrees that it is necessary for Company to prevent the unauthorized use and disclosure of Proprietary and Confidential Information, as hereinafter defined, regarding Company and the Product. Accordingly, Distributor covenants and agrees that it will not, during the term of this Agreement or at any time following the termination of this Agreement, for whatever reason (whether this Agreement is terminated by Company, by Distributor or by mutual consent), directly or indirectly, engage in or refrain from taking any action which may in any way lead to the disclosure of any Proprietary and Confidential Information regarding Company or the Product to any third party, nor use any Proprietary and Confidential Information for its own benefit.
  
  For purpose of this Agreement, the term “Proprietary and Confidential Information” shall be deemed to include all confidential and proprietary information relating to the Product or Company, including, but not limited to, (i) corporate and business information, including contractual arrangements (including the terms of this Agreement), plans, strategies, tactics, policies and resolutions; (ii) any negotiations; (iii) marketing information, including price and discount lists, sales or product plans, strategies or methods; (iv) customers, customer lists, prospects or market research data, including any lists or data developed or prepared by Company or Distributor in performing hereunder; (v) operational information, including trade secrets, control and inspection practices, suppliers and vendors, all information related to the Product, inventions, technical and non-technical data, techniques, methods of manufacture, machines, equipment, apparatus, molds, tools, dies, drawings, blueprints, experimental or developmental work, photographs, slides, motion pictures, video tapes, compositions, formulas, formulations, processes, and know how; (vi) all copyrights, patents, trademarks, service marks, trade secrets or other intellectual properties utilized by the Company; (vii) personnel information, including personnel lists, resumes, personal data, organizational structure and performance evaluations; (viii) exclusive distributor discounts and pricing, at which Company reserves the right to seek compensation for any loss or damages that would result from any breach of confidentiality and (ix) and (viii) information provided to or obtained in any way by the Company regarding another person, corporation or other form of entity which owns in whole or in part the Company or which is owned or controlled by the Company or under common control with Company (collectively, the “Affiliates”), and which information is proprietary and confidential to the Affiliates which information is hereby deemed to include, without limitation, all of the types of information described in this subparagraph.

• 11. Disclaimer of Warranties; Statute of Limitations

  THE COMPANY MAKES NO EXPRESS WARRANTIES, AND HEREBY EXCLUDES AND DISCLAIMS IN ENTIRETY ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT PROVIDED BY THE COMPANY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY LOST PROFITS, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THIS AGREEMENT (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT FOR ANY REASON AND FOR ANY PURPOSE WHATSOEVER EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION FOR BREACH OF ANY TERM OF THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE OF ACTION ACCRUES.

• 12. Nature of Relationship; Authority of Parties

  The relationship between the parties shall be that of buyer and seller. Nothing contained in this Agreement, and no action taken by Company or Distributor pursuant hereto, shall be deemed to constitute Company and Distributor a partnership, an association, joint venture or other entity, nor shall this Agreement be construed to constitute Distributor as an employee or agent of Company or cause Company to be responsible in any way for the debts or obligations of Distributor, nor shall either Company or Distributor have the authority to bind the other in any respect whatsoever, it being understood and agreed by the parties hereto that Distributor shall be acting as an independent contractor not as an agent, representative, partner, or employee of Company for any purpose whatsoever. Distributor shall be solely responsible for discharging all obligations arising in connection with the operation of Distributor’s’ business, including, without limitation, compliance with all laws, rules and regulations relating to income tax, sales tax, social security, unemployment compensation and worker’s compensation.

• Term and Termination

  a) The term of this Agreement shall be for a period of one (1) year from the date hereof, and shall be automatically renewed thereafter for successive one year periods, unless either party provides written notice to the other of its intention not to renew this Agreement, for whatever reason, with or without cause, at least thirty (30) days prior to the termination date of the one year term then in effect, or this Agreement is earlier terminated pursuant to any other provision of this Agreement. b) This Agreement may be terminated by either party in the event of any breach or nonfulfillment of or default under any term or condition of this Agreement by the other party, which breach, nonfulfillment or default is not fully cured by the applicable party (if capable of cure) within thirty (30) days following the giving of written notice thereof by the other party; provided, however, that this Agreement shall terminate immediately and without opportunity for cure by Distributor (i) upon receipt by Distributor of notice of termination from the Company in the event of a breach or nonfulfillment of or default by Distributor or (ii) upon the death of, dissolution or liquidation of, termination of existence of, insolvency of, business failure of, appointment of receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, insolvency, debtor-creditor, receivership or similar or related law by or against, Distributor. Notwithstanding anything herein or otherwise which may appear to be to the contrary, the termination of this Agreement shall not affect any liability or obligation of the parties hereunder which shall accrue prior to such termination, including, but not limited to, any liability for loss or damage or on account of breach, nor shall the termination of this Agreement (by either party and for whatever reason) affect the terms or provisions hereof which contemplate performance by or continuing obligations of a party beyond the termination hereof, including, without limitation, the obligations of Distributor as previously stated all of which shall continue in effect notwithstanding any termination hereof.

• 14. Indemnification

  Distributor agrees to defend, indemnify and hold Company harmless from and against any and all loss, liability, damage, cost or expense (including, but not limited to, attorneys’ fees, legal expense and court costs) arising in connection with or resulting from any breach of warranty, misrepresentation or non-fulfillment of any agreement on the part of Distributor under this Agreement or which are incurred by Company in enforcing its rights under this Agreement.

• 15. Force Majeure

  If the performance of any part of this Agreement by either parties is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or government action, labor disputes, civil unrest, or any other cause beyond the control of either Company or Distributor, the parties obligated to perform shall be excused from such extent that it is prevented, hindered or delayed by such causes.

• 16. Sales Tax

  Distributor agrees that it is the sole responsibility of Distributor to collect report and remit all taxes to the correct tax authority for all business transactions, sales or revenue stemming from the sales of the Company’s product. Distributor further agrees that Company is not obligated to determine whether a sales tax applies and is not responsible to collect report or remit any tax information arising from any transaction involving Company’s product.

• 17. Miscellaneous

  This Agreement shall be construed in accordance with and governed by the laws of the State of California. This Agreement may be assigned, in whole or in part, by the Company without the prior written consent of Distributor. The Company retains the right to modify this agreement at any time with written notice to the Distributor. This Agreement may not be assigned, voluntarily or involuntarily or by operation of law or otherwise, by Distributor without the express prior written consent of the Company, which consent may be withheld in the Company’s sole discretion. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matters hereof and may be amended only by a writing executed by all parties. Words and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the context. The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” refer to this entire Agreement and not to any particular section, paragraph or provision. This Agreement and the representations, warranties, acknowledgements and agreements contained herein shall be binding upon the heirs, legal representatives, successors and assigns of Distributor. EACH OF THE PARTIES HEREBY UNCONDITIONALLY WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO AND IN ANY ACTION, PROCEEDING, CLAIM, COUNTERCLAIM, DEMAND, DISPUTE OR OTHER MATTER WHATSOEVER ARISING OUT OF THIS AGREEMENT.