AEDC Dealer Agreement

 

 

Exhibit 10.2

AEDC Dealer Agreement

THIS AGREEMENT is made this 20th day of July, 2009 by and between Alternative Energy Development Corporation a Nevada Corporation with its principal place of business at 17505 N 79th Ave Suite #309 Glendale, AZ 85308 (hereinafter referred to as “Company”) and Dandy Enterprise LLC with its principal place of business at 2340 Charles Ave. St. Paul Minnesota 55114 (hereafter referred to as “Dealer”).

 

BACKGROUND

 

The Company is engaged in the development and marketing of E-3 FUEL SAVER® integrated vehicle Fuel Conservation Equipment (as hereinafter defined), along with various Products, as hereinafter defined. Dealer has requested the right to resell such Products to its customers.

 

 

IN CONSIDERATION of the premises, the mutual covenants of the parties, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, Company and Dealer hereby agree as follows:

1. Definitions

The following words shall have the following meanings when used in this Agreement:

 

 

 

 

2. Appointment

Subject to the terms herein, Company hereby grants Dealer the right to market and sell the Products in the Territory.  To induce Company to enter into this Agreement, Dealer represents and warrants to Company that Dealer is:

 

3. Acceptance of Appointment

Dealer hereby accepts appointment as a dealer of the Products on the terms and conditions provided for in this Agreement.

4. Duties of Dealer

In satisfaction of its duties under this Agreement, Dealer shall undertake the following duties in a professional manner to the satisfaction of Company:

 

5. Prices

Dealer shall pay Company the prices for the Products purchased under this Agreement as set forth in the Company-Published Price List.  All prices may be amended by Company in its sole discretion from time to time.  All such changes shall become effective thirty (30) days after Dealer has received written notice from Company.  New Products, when released, will be sold to Dealer at Company's then existing price.

 

6. Purchase Orders

Dealer shall initiate purchase of the Products by submitting an Irrevocable Corporate  Purchase Order  (ICPO) using the form set forth in Schedule C of this Agreement through their Sales Representative.  All Purchase Orders shall be in writing in a form acceptable to Company.  All Purchase Orders must be accepted in writing by Company and are not valid or effective until accepted by Company.  Company reserves the right to reject any Purchase Order. In the event any Purchase Order contains terms which are in addition to or in conflict with the terms of this Agreement or the Terms or Conditions, the Terms and Conditions of this agreement shall apply.  After acceptance of a Purchase Order Company shall deliver to a common carrier F.O.B. Company facilities.  Dealer assumes all risks of loss or damage upon delivery of the Equipment to Dealer’s shipping destination. Dealer agrees that acceptance of Equipment shall occur upon delivery of the Equipment by the Company to Dealer or a common carrier.

7. Payment

Unless Dealer is approved for credit with Company, 100% payment for all purchases shall be delivered to the Company by Dealer prior to shipment of the applicable order.  Credit will be granted to Dealer on a case by case basis, initiated with Dealer's application for credit by submission of the Company’s form of credit application.  The amount and term of credit extended to Dealer, if any, shall be at the discretion of the Company and is subject to change as the Company may deem appropriate.  

 

8. Delivery or Order

After Company has accepted the Purchase Order, the Company will use reasonable efforts to fulfill any orders received from Dealer within 60 calendar days.  Company shall have no duty or obligation to deliver any Products if Dealer is in breach or default of this Agreement or any past due amount is owed by Dealer to Company.

9. Term

Agreement shall become effective upon its execution by duly-authorized representatives of both Dealer and Company, and after an original signed copy is delivered to the Company and remain in full force and effect for the term of five (5) years from the date of execution.  This Agreement shall automatically terminate, unless earlier terminated by Company pursuant to this Agreement, five (5) years from the date of this Agreement.

 

10. Marketing

Promotional material and advertisements or any material to be released to the public, including photographs, that utilize any trademarks of the Company or depict any of the Products shall be approved by an authorized executive officer of the Company in writing prior to its public release.

11. Reporting and Forecasting

 

12. Training, Installation and Support Services

Dealer shall be responsible for all Product installation and maintenance.  Dealer and Company understand and agree that initial  training of Dealer's support personnel will be provided by the Company, on Company’s premises.  Dealer will be responsible for travel expenses.

 

 

 

13. Documentation

 

14.  Equipment Service

15. Confidential Information

 

 

 

 

16. Warranties

17. Limitation of Liability

18. Limitation of Intellectual Property Liability

19. Disclaimer of Partnership or Agency

The relationship between Company and Dealer under this Agreement is solely that of independent contractors.  Each of the parties is in no way the legal representative or agent of the other party for any purpose, shall not in any way hold themselves out as such, and shall have no power to assume or create, in writing or otherwise, any obligation or responsibility of any kind, expressed or implied, in the name of or on behalf of the other party.

 

20. Indemnification

Dealer will indemnify, defend and hold Company harmless from any and all liabilities, losses, obligations, expenses (including without limitation to attorney’s fees) and costs arising in connection with any lawsuit, proceedings, or other action (i) arising out of the operation of Dealer's business or (ii) related to any claim by a third party based, in whole or in part, on Dealer's distribution, use, or installation of Products. The activities of any of Dealer’s employees, agents of representatives will be considered activities of the Dealer for purposes of this Section.  Company will have the right, but not the obligation, to assume the defense of any such lawsuit, proceeding, or action.  Company and Dealer will

each give the other prompt notice of any such claim, lawsuit, proceeding or action.

21. Use of Company Trademarks and Service Marks

22. Force Majeure

 

 

 

23. Termination

24. Effect of Termination and/or Expiration

25. Entire Agreement

This Agreement, the schedules hereto attached and the documents referenced herein supersede any and all prior agreements, discussions and negotiations between Dealer and Company.  They set forth the entire agreement and understandings between the parties as to the subject matter of this Agreement.  Neither of the parties shall be bound by any terms, conditions, definitions, waivers, warranties or representations with respect to the subject matter of this Agreement, other than as expressly provided in this Agreement or duly set forth on or subsequent to the date hereof in a writing signed by a proper and duly authorized representative of whichever of the parties is to be bound hereby.

 

 

 

26. Assignment

This Agreement and the Dealer’s obligations hereunder are unassignable and nontransferable by the Dealer to any other party without the prior written consent of an authorized executive officer of Company.  For purposes of this Section 26, any transfer of a controlling interest in Dealer shall be considered an assignment.

27. Governing Law

This Agreement shall be deemed to have been entered into in the County of Maricopa, State of Arizona, and all questions concerning the validity, interpretation or performance of any of the terms, conditions and provisions of this Agreement or of any of the rights or obligations of the parties shall be governed by, and resolved in accordance with, the laws of the State of Arizona.  Any and all actions or proceedings, at law or in equity, to enforce or interpret the provisions of this Agreement shall be litigated in courts having situs within the State of Arizona, and each party hereby consents expressly to the jurisdiction of any local, state or federal court located within the County of Maricopa, State of Arizona and consents that any service of process in such action or proceeding may be made by personal service upon such party wherever such party may be then located, or by certified or registered mail directed to such party at such party’s last known address. The parties hereby irrevocably commit to the jurisdiction and venue of such courts and waive any claims of forum non conveniens or other causes for change of venue.

28. Waiver

Any failure of Company to enforce, at any time or for any period of time, any of the provisions under this Agreement shall not be construed as a waiver of the right of Company to enforce such provisions unless said waiver is in writing, and signed by an authorized executive officer of Company.

29. Notices

Any notice or other communications required or permitted to be given under or in connection with this Agreement shall be in writing and shall be deemed to have been duly given or made when personally delivered on the fifth (5th) day following the date it is sent, if sent by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses:

 

 

 

Either party may change its address for notices hereunder by giving notice of such change in writing to the other party.

 

30. Severability of Provisions

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid or contrary to any existing or future law, such invalidity shall not impair the operation of this Agreement or affect those portions of this Agreement which are valid.

31. Background, Enumeration, and Headings

The Background, enumeration and headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.

32. Survival

Dealer recognizes and agrees that its obligations under this Agreement shall survive the termination of the Agreement, and Dealer shall be bound by such obligations after termination hereof.

33. Captions and Interpretation

Captions of the paragraphs of this Agreement are for convenience and reference only, and the words contained in those captions shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.  The language in all parts to this Agreement, in all cases, shall be construed in accordance with the fair meaning of that language as if that language was prepared by all parties and not strictly for or against any party.

 

34. Further Assurances

Each party shall take any and all action necessary, appropriate or advisable to execute and discharge such party’s responsibilities and obligations created by the provisions of this Agreement and to further effectuate, perform and carry out the intents and purposes of this Agreement and the relationship contemplated by the provision of this Agreement.

35. Number and Gender

Whenever the singular number is used in this Agreement, and when required by the context, the same shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders, and vice versa; and the word ‘person’ shall include corporation, firm, trust, association, governmental authority, municipality, association, sole proprietorship, joint venture, association, organization, estate, joint stock company, partnership, or other form of entity.

 

 

 

36. Execution in Counterparts

This Agreement may be prepared in multiple copies and forwarded to each of the parties for execution.  This Agreement shall become effective when the Corporation receives a copy or copies of this Agreement executed by the parties in the names as those names appear at the end of this Agreement. All of the signatures of the parties may be affixed to one copy or to separate copies of this Agreement and when all such copies are received and signed by all the parties, those copies shall constitute one agreement which is not otherwise separable or divisible.  The Corporation shall keep all of such signed copies and shall conform one copy to show all of those signatures and the dates thereof and shall mail a copy of such conformed copy to each of the parties within thirty (30) days after the receipt by such counsel of the last signed copy, and shall cause one such conformed copy to be filed in the principal office of the Corporation.

37. Successors and Assigns

This Agreement and each of the provisions of this Agreement shall obligate and inure to the benefit the heirs, executors, administrators, successors and assigns of each of the parties; provided, however, nothing specified in this paragraph shall be a consent to the assignment or delegation by any party of such party’s respective rights and obligations created by the provisions of this Agreement.

38. Reservation of Rights

The failure of any party at any time hereafter to require strict performance by any other party of any of the warranties, representations, covenants, terms, conditions and provisions specified in this Agreement shall not waive, affect or diminish any right of such failing party to demand strict compliance and performance therewith and with respect to any other provisions, warranties, terms and conditions specified in this Agreement.  Any waiver of any default not waive or affect any other default, whether prior or subsequent thereto, and whether the same or of a different type.  None of the representations, warranties, covenants, conditions, provisions and terms specified in this Agreement shall be deemed to have been waived by any act or knowledge of either party or such party’s agents, officers or Representatives, and any such waiver shall be made only by an instrument in writing, signed by the waiving party and directed to each non-waiving party specifying such waiver.  Each party reserves such party’s rights to insist upon strict compliance with the terms, conditions, warranties, obligations, representations, covenants  and  provisions of this Agreement at all times.

39. Concurrent Remedies

No right or remedy specified in this Agreement conferred on or reserved to the parties is exclusive of any other right or remedy specified in this Agreement or by law or equity provided or permitted; but each such right and remedy shall be cumulative of, and in addition to, every other right and remedy specified in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time.  The termination of this Agreement for any reason whatsoever shall not prejudice any right or remedy which either party may have, either at law, in equity or pursuant to the provisions of this Agreement.

40. Consent to Agreement

By executing this Agreement, each party, for itself, represents such party has read or caused to be read this Agreement in all particulars, and consents to the rights, conditions, duties and responsibilities imposed upon such party as specified in this Agreement.

 

 

 

41. Authority of Signers

The parties represent and warrant that the person whose signature is set forth  below on behalf of a party is fully authorized to execute this Agreement on behalf of that party.   

42. Fair Meaning

The parties agree that the wording of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the parties to this Agreement, including the party responsible for the drafting of this document.  

43. Mutual Drafting  

The parties hereto acknowledge and agree that they are sophisticated and have been represented by attorneys who have carefully negotiated the provisions of this Agreement.  As a consequence, the parties also agree that they do not intend that the presumptions of any laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement and therefore waive their effect.

44. Amendment

The parties agrees that no amendment of this Agreement shall be effective unless it shall be in writing and signed by each of the parties hereto.

45. Terms and Conditions of License Grant

All licenses of Trademarks granted to Dealer under this Agreement or otherwise, shall be subject to and in conformance with Company’s terms and conditions, and the failure to do so constitutes a material breach of this Agreement allowing Company to immediately terminate this Agreement without notice or penalty.

IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Dealer Agreement under seal, effective the date first written above.

Company:

Alternative Energy Development Corporation

 

 By:   JERRY ALVAREZ

          Jerry Alvarez, President

  

 

Dealer:  (must be officer or owner)  

  

 Signature: DARYLE R. DARNELL

 Printed name: Daryle R. Darnell        

 Title: President

 

DARYLE DARNEL AUTHORIZES DANDY ENTERPRISES TO ENTER PURCHASE ORDER TERMS AND SCHEDUAL THE FOLLOWING PRODUCT(S) ON THE TERMS AND CONDITIONS HEREUNDER.

 

PRODUCT:

E3 FUEL SAVER DEVICE (“UNIT”)

SPECIFICATIONS:

CAR ACCESSORY

QUANTITY:

5,000 UNITS

PACKING:

N/A

SHIPPING TERMS:

UPS GROUND

 

DEPOSIT:

$15,000.00 TO BE DEDUCTED FROM SUBTOTAL OF $1,000,000.00 (USD)

PRICE PER UNIT:

$200.00 (USD) FOB CALIFORNIA

MINIMUM SHIPPMENT OF 200 UNITS PER MONTH OVER THE DURATION OF TWENTY – FOUR MONTHS FOLLOWING THE FIRST SHIPPMENT FOR FIFTY UNITS

INSPECTIONS:

10 DAY RETURN POLICY TO CUSTOMER FOR ANY DAMAGED GOODS FOR EXCHANGE ONLY

PAYMENT TERMS:

C.O.D. OR CREDIT CARD PAYMENT DUE UPON DELIVERY OF GOODS BILLED BY COMMERCIAL INVIOCE

CONTRACT PERIOD:

START DATE OF JULY 20, 2009 AND ENDING SEPTEMBER 26, 2011

 

2340 Charles Ave. St. Paul Minnesota 55114

___________________________________________________

COMPANY ADDRESS

888 ###-###-#### 

___________________________________________________

COMPANY TELEPHONE NUMBER 

___________________________________________________

COMPANY FAX NUMBER 

IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THE DEALERS AGREEMENT BETWEEN DANDY ENTERPRISES AND ALTERNATIVE ENERGY CORPORATION, DO HEREBY SUBMIT THIS IRREVOCABLE CORPORATE PURCHASE ORDER (ICPO) AS SCHEDUAL A

 

Company offers the following territorial rights to Dealer:

 

 

1. Non-Exclusive Territory

 

 

The following geographical regions shall be considered the Territory for purposes of this Agreement (Must List Counties for web look up, limited to 100 Counties):

 

___________________________________________________________________________________

___________________________________________________________________________________

___________________________________________________________________________________

The foregoing definition is subject to the following exclusions;

___________________________________________________________________________________

___________________________________________________________________________________

 

Dealer’s right to distribute Products in the Territory, unless earlier terminated as provided for herein, will be valid for a period of five (5) years, beginning on the executed date of this Agreement.

 

 

 

 

 

 

RESELLER CERTIFICATE

 

Name of Purchaser: Dandy Enterprise LLC

Address of Purchaser: 2340 Charles Ave. St. Paul Minnesota 5511

I HEREBY CERTIFY: That I hold valid Sales and Use Tax Permit No. 90 039 9884

 

 

issued pursuant to the Sales and Use Tax Law; that I am engaged in the business of selling:

 

_____________________________________________________________________________

 

I certify that the tangible personal property described herein which I shall purchase from Alternative Energy Development Corporation will be resold by me in the form of tangible personal property, provided, however, that in the event any of such property is used for any purpose other than retention, demonstration, or display while holding it for sale in the regular course of business, it is understood that I am required by Sales and Use Tax Law to report and pay tax, measured by the purchase price of such property or other authorized amount.

Description of property to be purchased:  

 

Date ______________20__   

 

Printed name of Purchaser (Company name): Dandy Enterprises LLC

 

Phone:  (     )_________________

 

By and Title:       DARYLE R. DARNELL

             (Signature of Purchaser or Authorized Agent)

 

Printed name of signer: Daryle R. Darnell