MASTER DISTRIBUTOR AGREEMENT

 

THIS MASTER VOTIX DISTRIBUTOR AGREEMENT (“Agreement”) is made as of the date of the last signature below (“Effective Date”) and is entered into by and between VOTIX LLC, a Delaware company with its principal place of business located at 360 NW 27th Street, Miami, FL 33127, USA (“VOTIX”), and the corporate entity (“Distributor”) with name, company and address set forth in the Purchase Order (collectively, the “Parties” and each, a “Party”).

WHEREAS VOTIX markets and sells enterprise robotics solutions, including software, software as a service and hardware, as licenses or subscriptions (both referred as “licenses”), for drone orchestration, operation and automation, and service, maintenance and support plans for such solutions (hereafter collectively referred to as the “Products”); and

NOW THEREFORE, VOTIX and Distributor hereby agree as follows:

 

  1. DEFINITIONS.
  • “End User” means an end user or potential end user in the Territory which acquires or may acquire Products for its own internal use, and not for any further sale or distribution.
  • “Product User Agreements” means a VOTIX end user software license agreement for the license and use of a Product (“EULA” at https://votix.com/eula/ and a terms of service agreement for the use of a Product as a service (“Terms of Service” at https://votix.com/termsofservice/. Both documents must be accepted by the End User prior to use, and VOTIX reserves the right to update or modify these documents at any time, for any reason, in its sole discretion.
  • “Reseller” means a reseller of who was appointed by a distributor in a specific territory who resells the Products acquired from a distributor to an End User.
  • “Territory” means any territory provided that VOTIX approves the Purchase Order and the End User.
  • “MSRP” means a VOTIX manufacturer’s suggested retail price set exclusively by VOTIX. This is the price list with the suggested prices that the End User shall pay for the Products. VOTIX reserves the right to update or modify this price list at any time, for any reason, in its sole discretion.
  1. APPOINTMENT AND QUOTES. VOTIX hereby appoints Distributor as a distributor of the Products in the Territory.  Notwithstanding the foregoing, the Parties acknowledge that VOTIX has and may add other partners including other distributors in the Territory. Distributor will market, promote, and distribute the Products to Resellers or End Users in the Territory.
  1. LICENCE. VOTIX grants to Distributor a non‑transferable license to:
  • distribute Products to Resellers and End Users, only pursuant to VOTIX’s Product User Agreements, which shall accompany the Products; and
  • demonstrate the Products to Resellers and potential End Users in the Territory.
  1. RESTRICTIONS. Distributors and End Users’ license rights are limited to those expressly granted by this Agreement. VOTIX and its licensors reserve all other rights. VOTIX, or its licensors, own all intellectual property rights including patent, copyright, trade secret, trademark and other proprietary rights in and to the Products and all other VOTIX products, services, and documentation. Neither Distributor nor End User may: (i) modify, adapt, decompile, disassemble, or reverse engineer the products or documentation unless specifically authorized by applicable law; (ii) create derivative works based on the Products or documentation except as may be necessary to permit integration with other technology; (iii) make unauthorized copies of the Products or documentation; (iv) allow any further disclosure, distribution or relocation, resale, lease, loan, rental, license, or assignment of any type or nature or unauthorized third party use or access to the VOTIX provided documentation without the prior written consent of VOTIX; (v) use the Product or documentation for the benefit of, or to support any third party. For the avoidance of doubt, the Products (software, services, hardware, firmware and/or documentation) are licensed or subscribed and not sold. Distributor acknowledges that the Products use a license system and that use of the Products is on a temporary basis according to the licenses. Distributor will not, and will not permit End Users to use any unauthorized licenses or otherwise circumvent VOTIX’s license system. VOTIX will provide the license information, including credentials, upon payment in full of the applicable license fees.
  1. PRODUCT USER AGREEMENTS. The Parties agree that the Products will be licensed directly to the End User by VOTIX by means of the Product User Agreements, and that Distributor will have no right to sublicense the Products directly to End Users. Distributor will distribute all Products in conjunction with the Product User Agreements, and will not modify, remove, disable, or alter the functionality of any “click-through” version of the Product User Agreements that are displayed to End Users prior to use of the Product. Distributor shall sell licenses to the Products under Distributor’s own sales agreement with such End User.
  1. OWNERSHIP. Title to, and ownership of, the copyright, patent, trademark, trade secret, and any other intellectual property or proprietary rights relating to the Products will remain at all times with VOTIX.  There are no implied licenses under this Agreement, and all rights in and to the Products not expressly granted to Distributor in this Agreement are reserved by VOTIX. This Agreement does not grant Distributor any rights in or to VOTIX’s name, logo, trademarks, or service marks.

 

  1. PURCHASE ORDERS. Distributor shall issue a purchase order (“Purchase Order”) identifying the End User, the bill to information, the ship to information, the specification of the Products to be purchased, including part number, quantity, price and subscription period, and must be approved by a Distributor representative. Distributor expressly agrees that VOTIX shall not be bound by any additional or different terms that may appear in any other Distributor communication. All Purchase Orders are subject to acceptance by VOTIX.
  1. DELIVERY & TITLE. VOTIX will use commercially reasonable efforts to ship the Products on or before the delivery estimate specified in the order. Title to, and ownership in, Products (including all intellectual property rights related thereto) will remain with VOTIX. Distributor is solely responsible for all risks of loss or damage to the Products after VOTIX’s delivery of such Products to carrier. All Products are deemed accepted upon delivery.

 

  1. PRICING AND PAYMENT TERMS.
  • Prices for Products will be defined in the MSRP. VOTIX reserves the right to update or modify the MSRP at any time, for any reason, in its sole discretion.
  • Distributor shall pay all invoices upon receipt of VOTIX’s invoice. VOTIX reserves the right to assess late payment fees of 2% per month for overdue amounts.
  • Distributor shall use its best efforts to ensure that the End User shall not pay more than the MSRP.
  1. TAXES. In addition to all payments specified in the Agreement, Distributor shall pay, or reimburse VOTIX for, all taxes imposed by all federal, state and local authorities (and foreign authorities if applicable), including, but not limited to, sales, use, excise, and value-added taxes to the extent not otherwise recoverable based upon any fees, royalties or support and maintenance fees set forth in the Agreement, provided that Distributor shall have no responsibility for taxes based on VOTIX’s net income. All amounts payable hereunder by Distributor shall be made without deduction or withholding for or on account of any present or future tax, levy, impost, fee, assessment, deduction or charge by any taxing authority. If Distributor is entitled to an exemption from any applicable taxes, Distributor is responsible for presenting VOTIX with a valid exemption certificate (in a form reasonably acceptable to VOTIX). VOTIX will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any billing by VOTIX to Distributor only for the period following VOTIX’s receipt of such exemption certificate and may give retroactive effect to such exemption certificate to the extent allowable by applicable law. If VOTIX’s sales and use tax returns are audited and it is found that VOTIX did not collect from Distributor any sales tax which VOTIX should have collected from Distributor, then Distributor will reimburse VOTIX for such uncollected sales tax to the extent that Distributor did not previously self-assess and remit the tax amount at issue.

 

  1. SUPPORT. VOTIX is under no obligation to provide support or maintenance to Distributor under this Agreement, including sales, operational and technical support.
  1. DISTRIBUTOR RESPONBILITIES. Distributor will use commercially reasonable efforts to actively market, promote, and distribute the Products to Resellers and End Users in the Territory. Distributor agrees to reproduce and include the copyright notice and any other notices that appear on or accompany the VOTIX Products or documentation and on any copies made by Distributor on any media.
  1. WARRANTY VOTIX warrants the Products directly to End Users only under the terms and conditions of the applicable End User License Agreement between End User and VOTIX.  Distributor will not make or publish any representations, warranties, or guarantees to End Users concerning the Products.
  1. DISCLAIMER. the Products are provided TO DISTRIBUTOR “as is” without warranties of any kind. Without limiting the foregoing, VOTIX disclaims all warranties and representations of any kind, whether express, implied, or statutory, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, non-infringement OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

  1. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR A PARTY’S INDEMNIFICATION OBLIGTATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS ARISING OUT OF, OR IN CONNECTION WITH, THE PRODUCTs or THIS AGREEMENT REGARDLESS OF WHETHER a party HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL VOTIX’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE VOTIX PRODUCTS, THIS AGREEMENT, OR VOTIX’S PERFORMANCE OR ASSERTED FAILURE TO PERFORM HEREUNDER EXCEED THE PURCHASE PRICE OF THE APPLICABLE VOTIX PRODUCT THAT GAVE RISE TO THE CLAIM REGARDLESS OF WHETHER SUCH CLAIM FOR LIABILITY IS ALLEGED TO ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
  1. INDEMNIFICATION VOTIX shall defend or settle any claim, suit, or action against Distributor based on an allegation that the Product infringes any third party’s worldwide patent or copyright; provided, that Distributor gives VOTIX prompt written notice of any claim or suit, sole authority to defend or settle as it sees fit, and full cooperation. VOTIX may, at its expense: (i) procure the right to continue using the Product; (ii) modify the Product so that it is non-infringing; (iii) procure a replacement product that has substantially the same functionality. If none of the above options are reasonably available, then VOTIX may terminate this Agreement and all licenses granted by Distributor hereunder, and refund to Distributor the fees paid for such infringing Product(s).  THIS SECTION STATES VOTIX’S ENTIRE LIABILITY AND THE DISTRIBUTOR’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. Distributor will defend, indemnify and hold harmless VOTIX from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any End User) resulting from or relating to Distributor’s use, marketing, resale, or distribution of the Products or provision Distributor services only if caused by Distributor’s fault. In addition, Distributor will also indemnify VOTIX for any breach by Distributor of this Agreement which relates to any third-party software.
  1. TERM AND TERMINATION. The term of this Agreement is one (1) year from the Effective Date, after which this Agreement will automatically renew for one-year periods. Any Party may terminate this Agreement at any time, for any reason, provided at least 90 days’ notice. The non-breaching Party may terminate this Agreement immediately if the other Party materially breaches the terms and conditions of this Agreement and does not cure such breach within 30 days after receipt of written notice thereof. Upon the termination of this Agreement, (a) Distributor shall immediately pay all outstanding sums due to VOTIX; (b) all licenses granted hereunder will terminate not including licenses acquired; and (c) each Party will promptly return to the other Party (or destroy, and upon request provide a certificate of destruction) all Information (as defined below) of the other Party in such Party’s possession.

 

  1. GOVERNING LAW/Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, USA without reference to its choice of laws rules.  Any action or proceeding arising from or relating to the Agreement shall be brought in a federal or state court in Miami, FL USA and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
  1. COMPLETE AGREEMENT. This Agreement is the complete agreement between the Parties regarding the marketing, promotion and distribution of the Product and supersedes any prior or contemporaneous agreements or communications, written or oral, relating to the subject matter hereof.  This Agreement will not be modified except by a properly executed written agreement.
  1. INDEPENDENT CONTRACTORS. The Parties are independent contractors. Nothing herein contained will be construed to place the Parties in the relationship of partners, joint venture’s, principal and agent, or employer and employee, and neither party will have the power to obligate or bind the other Party in any manner whatsoever. Each Party will be responsible for the acts, negligence and omissions of its employees, agents, servants and subcontractors.
  1. ASSIGNMENT. Either Party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, except that The Distributor may not assign this Agreement to a competitor of VOTIX. Subject to the foregoing, this Agreement in its entirety will bind each Party and its permitted successors and assigns.

 

  1. CONDUCT/ COMPLIANCE WITH LAWSDistributor shall comply with all laws pertaining specifically to the distribution of the Products in the Territory and the performance of its obligations hereunder.  Distributor shall not engage in any activities prohibited by U.S. trade control laws, including the economic sanctions and export control laws and regulations administered by the U.S. Department of Commerce, U.S. Department of the Treasury, and U.S. Department of State. Distributor shall not export, reexport, or transfer, directly or indirectly, any information, process, product, technology, funds or services, to countries or territories specified as prohibited destinations under U.S. trade controls laws. Distributor shall not engage in any activities, directly or indirectly, with Restricted Parties, including but not limited to persons set forth on the Department of the Treasury Office of Foreign Assets Control list of Specially-Designated Nationals (SDNs), Foreign Sanctions Evader’s List, and the Sectoral Sanctions Identification List; or the Department of Commerce Bureau of Industry’s Entity List, Denied Persons List, and Unverified List. Distributor will not make or promise to make payments of money or anything of value, directly or indirectly, to any government or public international organization officials, political parties, or candidates for political office, for the purpose of obtaining or retaining business or securing any improper advantage, or to any other person or entity if such payment would violate applicable laws or treaties of the country in which made or the laws of the United States of America.

 

  1. CONFIDENTIALITY. “Confidential Information” means (a) any business or technical nonpublic information of Distributor or VOTIX including but not limited to any information relating to either Party’s products, services, prices, marketing plans, business opportunities, or personnel, (b) any other information of Distributor or VOTIX that is specifically designated by the disclosing Party as confidential or proprietary, and (c) the terms and conditions of this Agreement. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement through no fault of the receiving Party, (ii) the receiving Party was demonstrably in possession of prior to first receiving it from the disclosing Party, (iii) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party’s Confidential Information, or (iv) the receiving Party receives from a third Party without restriction on disclosure and without breach of a nondisclosure obligation.  Each Party shall maintain the Confidential Information of the other Party in strict confidence during the term of this Agreement and for a period of five (5) years thereafter. Each Party shall exercise no less than reasonable care with respect to the handling and protection of such Confidential Information. Each Party shall use the Confidential Information of the other Party only during the term of this Agreement and solely to perform obligations or exercise rights under this Agreement, and shall disclose such Confidential Information only to its employees and independent contractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Notwithstanding the above, the receiving Party may disclose Confidential Information of the disclosing Party pursuant to a valid order or requirement of a court or government agency, provided that the receiving Party first gives reasonable notice to the disclosing Party to contest such order or requirement. Any such disclosure by the receiving Party of the Confidential Information of the disclosing Party, shall, in no way, be deemed to change, affect or diminish the confidential status of such Confidential Information.
  1. INSPECTION. Upon VOTIX’s written request, Distributor shall provide VOTIX with a signed certification verifying that the Products are being used and sold in accordance with the terms of this Agreement. VOTIX may, at its own expense, inspect Distributor and End Users with respect to the sales and use of the Products. Distributor must cooperate with VOTIX by providing any requested information, or access to its systems and facilities. If VOTIX’s audit, or any information from an End User, reveals any non-compliance with the Agreement, Distributor will be responsible for the inspection expenses incurred by VOTIX and must pay the amounts owed, plus a fine equal to the amount owed, within fifteen (15) days of the date of receiving notice of such amounts due.

 

  1. FORCE MAJEURE. Neither Party will be liable to the other by reason of any failure of or delay in the performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, nor will any such failure or delay give the other Party the right to terminate this Agreement.  Each Party will use its best efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event. Such Force Majeure events will include (without limitation) acts of God, labor disputes, and actions of any government agency.
  1. NO COMMITMENT. VOTIX understands and agrees that Distributor offers no commitments or guarantee of any minimum volume of purchases or of revenues under this Agreement.  The relationship between the Parties is not exclusive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.