estes performance concaves

    DEALER TERMS AND CONDITIONS

    This website, EstesConcaves.com, along with its associated dealer registration, dealer portal, information, materials, and services, is provided by Estes Performance Concaves (“Owner”) and is subject to the terms and conditions outlined in this document. Any individual or entity, including but not limited to a company, employee, agent, or representative, accessing or using this website and its services for business purposes—such as engaging in transactions, submitting the dealer registration form at www.estesconcaves.com/dealer-registration (herein “Dealer Registration”), placing purchase orders, or accessing information—shall be referred to as “Dealer” or “You.” A company or individual recognized as a “Dealer,” whether through formal Dealer Registration or other authorization (“Other authorization” may include, but is not limited to, written, verbal, or email correspondence confirming Dealer status, as well as any other communication or agreement in which the Owner grants permission to act as a Dealer), operates as an independent, non-exclusive reseller or distributor of the Owner’s goods and related services, including but not limited to agricultural implements and concaves (“Products”), subject to the terms of this Agreement. The Owner and any of its directors or members shall be referred to as the “Owner.” The terms “Dealer” and “Owner” may be referred to individually as a “Party” or collectively as the “Parties.”

     

    PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY SUBMISSION OF THE DEALER REGISTRATION OR ACTING IN A DEALER CAPACITY, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, DISCLAIMERS, CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, AND PRIVACY POLICY (COLLECTIVELY “TERMS” OR “AGREEMENT”).”

     

    Estes Performance Concaves may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Estes Performance Concaves may, but is not obligated to, notify you of non-material changes. You should periodically review the most up-to-date version at our terms of use page. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits. Estes Performance Concaves will notify you of any material changes to these Terms of Service by email or through a notice on the website at least 30 days before such changes take effect. Your continued use of the Service and/or Products after the effective date of any modifications will constitute your acceptance of the modified terms.

     

    ACCEPTANCE OF TERMS

     

    WHEREAS, the Owner is engaged in the engineering, manufacture, distribution, and sale of goods and related services, including but not limited to agricultural implements and concaves (“Products”);

     

    AND WHEREAS, by submitting the Dealer Registration, any other form of authorization as defined in this Agreement, including but not limited to email business correspondence, and/or engaging in business transactions, You certify that You are an authorized representative of the dealer and/or company (“Dealer” or “Company”), recognized as an independent, non-exclusive reseller or distributor of Estes Performance Concaves’ Products to non-dealer customers (“Customers”) within a designated territory, subject to the Terms and Conditions, Disclaimers, Confidentiality and Non-Disclosure Agreement, and Privacy Policy set out in this Agreement (collectively referred to as “Terms” or “Agreement”).

     

    NOW, THEREFORE, in consideration of the representations, warranties, covenants, and agreements hereinafter contained, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), You and the Owner agree as follows:

     

    APPOINTMENT AND PRODUCTS

     

    1.1 Appointment. For this Agreement, Owner hereby appoints Dealer as an independent dealer with the non-exclusive right to promote, sell, distribute, market, buy, and resell (collectively referred to herein as “distribute”) the Products only to Customers in the Territory (with the understanding that Dealer has no right to distribute the Products outside of the Territory), and Dealer hereby accepts such appointment, subject to the terms and conditions hereof. The Dealer is not an agent or employee of the Owner and shall not represent themselves as such. This Agreement does not create any fiduciary, joint venture, partnership, or similar relationships between the Parties. Dealer covenants and warrants that entering into this Agreement and performing its duties hereunder is not and will not be in violation of any agreement or other obligation to which Dealer is subject or by which Dealer is bound. Dealer acknowledges that Owner retains the right to promote, sell, distribute, and market Products in the Territory in its own right and through other distributors, dealers, and agents.

     

    1.2 Territory. The appointment of Dealer hereunder is strictly limited to the distribution of the Products to Customers in Dealer’s Country only (“Territory”). Dealer covenants and agrees that it will not directly or indirectly distribute, ship, sell for trans-shipment, solicit the sale of, take orders (whether by telephone or otherwise) for, establish a branch, maintain any distribution depot for, sell, lease, or otherwise distribute the Products from or to any customers or locations outside the Territory. In the event Dealer receives an inquiry, an offer to purchase, or a request for quotation regarding the Products from outside the Territory, Dealer agrees to promptly, and without compensation of any kind, forward all information regarding such matter to the Owner.

     

    1.3 Products. You shall not manufacture, duplicate, modify, add to, or alter the Products or the Product warranties (or obliterate, alter, modify, change, or add to any packaging, promotional material or labels accompanying same or affixed thereto), except as may be authorized in writing by Owner. Owner reserves the immediate right, without prior notice and without liability, to modify, alter, improve, or change the design and/or specifications of, or discontinue the sale of and/or the manufacture of any particular model of any Product. If any such alteration, improvement, modification, or change is made, there will be no obligation on the part of Owner to: (a) repurchase or replace any such Products previously sold to You; (b) make such modification, alteration, improvement, or change on any Products to be shipped or sold to You; (c) make or offer a similar modification, alteration, improvement, or change on any Product or parts previously shipped to You; or (d) install or furnish any other or different parts than were on Products when shipment was made. Owner reserves the immediate right, without prior notice and without liability, to modify, alter, improve, or change the design and/or specifications of any Products, including those listed in the current Product catalog or as otherwise specified in Owner’s documentation.

     

    1.4 Prohibition on Product Use (i) You agree not to directly or indirectly engage in, attempt to engage in, or facilitate any unauthorized activity related to the manufacture, copying, reverse engineering, disassembly, decompiling, modification, alteration, or reproduction of any Products, either in whole or in part, for any purpose. Additionally, You shall not authorize, enable, facilitate, encourage, or otherwise permit any third party—including but not limited to affiliates, subsidiaries, employees, contractors, agents, business partners, customers, representatives, acquaintances, family members, or any other persons or entities—to engage in such activities in any form, capacity, or jurisdiction.

    Consequences of Breach. In the event of any breach of these prohibitions, the Owner reserves the right to terminate this Agreement immediately and pursue all legal remedies available, including but not limited to claims for compensatory and punitive damages, and injunctive relief, without limitation to other remedies at law or equity.

    Obligation to Report. You shall immediately notify the Owner in writing or by email to legal@estesperformanceconcaves.com, of any unauthorized attempts by any party to manufacture, copy, reverse engineer, or otherwise replicate the Products, and shall cooperate fully in any investigation or legal action taken by the Owner in response to such activities.

    Non-Exclusivity of Remedies. The remedies available to the Owner under this section are not exclusive and are in addition to any other rights or remedies available to the Owner under this Agreement, at law, or in equity.

     

     

    RELATIONSHIP OF PARTIES

     

    2.1 General Nature of Relationship. Dealer represents and warrants that it has experience selling goods similar to the Products in the Territory and knowledge regarding the market for such goods in all or part of the Territory. Dealer further represents and warrants that it has the necessary business and financial resources to fulfill its obligations hereunder. Dealer further agrees to exert its best efforts to distribute the Products in accordance with the provisions hereof. Based in part on the foregoing representations and warranties of Dealer, Owner is entering into this Agreement. It is expressly agreed between the Parties hereto that the relationship hereby established is solely one of independent seller and buyer. Dealer shall have sole control over the manner and means of conducting its business, subject always to its compliance herewith. No fiduciary, special, trust, or family relationship is established hereby, nor is any such relationship intended by the Parties to result from operation hereof, it being intended and agreed that the relationship created hereby is and shall at all times continue to be one of independent contractors whose relationship is governed solely by this Agreement. Nothing in this Agreement shall be construed as constituting Dealer as a franchisee, attorney-in-fact, or legal representative of the Owner for any reason whatsoever. For the avoidance of doubt, Dealer shall not have the authority to act on behalf of or bind the Owner in any manner, including but not limited to contracts, representations, or warranties. Dealer acknowledges that this Agreement does not grant it any exclusive rights in the Territory, nor does it create a franchise or joint venture with the Owner. Neither Dealer nor any director, officer, agent, or employee of Dealer shall be, or be considered, an agent or employee of Owner. Neither Dealer, nor any director, officer, agent, or employee of Dealer shall be entitled to any of the benefits provided to employees of Owner. Dealer shall have the sole right to hire and fire its own employees and agents, and further, Dealer shall be solely responsible for its acts and failures to act and the acts and failures to act of its employees and agents.

     

    2.2 No Agency, Joint Venture or Partnership. Neither the making of this Agreement nor the performance of any part of this Agreement shall be construed in any circumstance to constitute You as an agent of Owner for any purpose, nor shall this Agreement be deemed to establish a joint venture or partnership between the parties hereto.

     

    2.3 Investment and Expenses. The parties acknowledge that the operation of Your business, whether related hereto or otherwise, is subject to the sole control and management of You. You agree that You have been and shall continue to be solely responsible for all expenditures and expenses connected with or related to Your investment in and operation of its business in the Territory, all of which shall be made at the sole discretion of You. Such expenditures include, but are not limited to, those amounts expended in connection with: hiring, training and maintenance of sales, management, technical, repair, delivery, administrative, or other personnel; equipment or facilities; salaries; commissions; insurance; rent; inventory; advertising and promotional costs; and taxes. You agree that any and all amounts that may be expended or invested by You that in any way relate to the performance of this Agreement, shall be incurred and spent voluntarily by You based on its best business judgment. All decisions with respect to investment in and operation of You’s business shall be made solely and exclusively by You and any suggestions that may be made by Owner’s personnel shall not be prescriptive or requirements of this Agreement, but shall be construed as advisory opinion only. The sole compensation of You in relation to this Agreement, its formation, performance and termination, shall be its proceeds on the resale of the Products to Customers within the Territory.

     

    2.4 No Authority to Commit. You are not authorized to, and shall not, create, enter into, or execute any contract, obligation, order, or other commitment, whether express or implied, which in any way obligates Owner in any manner to any third party, nor shall You take any action that has the effect of creating the appearance of You having such authority.

     

    PURCHASE AND RESALE OF PRODUCTS

     

    3.1 Terms and Conditions for the Sale of Goods. Pursuant to this Agreement, the Terms and Conditions for the Sale of Goods shall govern the sale of the Products, goods or services by the Owner to the buyer identified herein as the “Dealer” or the “Company” to which the Terms and Conditions for the Sale of Goods are incorporated by reference (“Buyer”).

     

    3.2 Order Acceptance or Rejection. Dealer shall submit to Owner purchase orders in accordance herewith for the Products. All orders placed by Dealer shall be subject to acceptance or rejection by Owner. Notwithstanding any terms and conditions that may be a part of Dealer’s purchase order to Owner, all sales of Products made by Owner to Dealer shall be governed solely and exclusively by the terms of this Agreement and Owner’s standard terms and conditions, including those terms and conditions set out in the NDA. The parties agree that all terms and conditions set forth in any Dealer purchase order issued after the date hereof are hereby rejected and shall be null and void and of no effect on any purchase of Products made hereafter by Dealer from Owner. Nothing contained in any Dealer purchase order issued after the date hereof shall be construed as an amendment hereto or a waiver hereof.

     

    3.3 Pricing. The current dealer price list sets out the prices for the Products covered by this Agreement, FOB Owner’s facility in Dallas, Texas. Owner reserves the right to and may change its prices, discounts, or terms of sale at any time. Products that are sold to Dealer by Owner under the terms of this Agreement shall be sold to Dealer at the prices that shall be established by Owner and in effect at the time of the order. All deliveries of Products covered by this Agreement will be on the credit of Dealer and will constitute sales made directly to Dealer. The Owner reserves the right to offer volume or other discounts to the Dealer, other distributors, dealers, or agents, or to end-user customers. The Owner, in its sole and absolute discretion, may from time to time advance credit or cash repayments to the Dealer based on large orders and/or annual volumes of sales of Products.

     

    3.4 Payment and Shipping. Payment for the Products ordered by Dealer shall be made as follows: 100% of the Invoice amount shall be paid by Dealer to Owner with the Purchase Order by cheque, prepaid wire transfer, Visa, or Mastercard; within thirty (30) calendar days of the date of shipment of such Products to Dealer. An Invoice will be sent to Dealer when the Purchase Order is fulfilled. Dealer shall be responsible for arranging and paying for all shipping, insurance, brokerage, and other similar costs relating to the delivery of Products from the Owner to Dealer. At Dealer’s request, the Owner will arrange for shipping, insurance, and brokerage on behalf of Dealer and add all related charges to Dealer’s Invoice. If payment is not made within 30 calendar days, interest shall accrue at a rate of the SOFR rate (%) per month on the outstanding balance until paid in full.

     

    3.5 Purchase Order. If Dealer places a Purchase Order between December 1 and June 1, then Product pricing is according to the stocking dealer discount schedule provided to Dealer by the Owner. If the purchase order is placed between June 2 and November 30, then the discount rate will be the Standard / Non-Stocking Discount rate, as provided by the Owner.

     

    3.6 Re-sales. Nothing contained herein shall be deemed in any way to limit the right of Dealer to determine the prices or terms (except the Owner’s warranty terms) at which Products may be resold by Dealer. Dealer will resell Products at prices determined solely by Dealer, whether greater or lesser than any prices listed, suggested, or charged by Owner. It is understood that Dealer shall buy and sell the Products in its own name, for its own account, at prices and on conditions determined by it, in compliance with this Agreement.

     

    3.7 Warranties; Exclusive Remedy. Each and every purchase of Products by You from Estes Performance Concaves shall be subject solely to the Limited Warranty as provided in Terms and Condition for the Sale of Goods document. Except as expressly stated in this warranty, Estes Performance Concaves makes no other warranties, express or implied, including any implied warranties of merchantability or fitness for a particular purpose, which are disclaimed to the fullest extent permitted by law. Estes Performance Concaves reserves the right to change or modify the terms of the warranty at its sole discretion, and any such changes will apply to future purchases. Estes Performance Concaves retains sole discretion in determining the validity of any warranty claim, including whether the claim arises from misuse, negligence, or causation by You or a third party acting on Your behalf. Any warranty provided by You with respect to Products that have been altered, modified, or tampered with by You or on Your behalf, or any additional warranty made by You, shall be void and unenforceable against Estes Performance Concaves, and any liability resulting from such warranty shall be solely Your responsibility. Estes Performance Concaves shall not be liable for incidental, consequential, or indirect damages, and its total liability shall not exceed the amount You paid for the Products. Additionally, Estes Performance Concaves shall not be responsible for delays or failures to perform due to events beyond its control, such as natural disasters or governmental actions. All disputes shall be resolved exclusively through binding arbitration in Texas, and You waive any right to participate in a class action. You are responsible for the safe and proper use of the Products, and Estes Performance Concaves shall not be liable for damages resulting from improper use or installation. All legal matters will be governed by the laws of Texas, with jurisdiction in the courts of Texas.

     

    THE PRODUCTS ARE PROVIDED ‘AS IS’ WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN LIMITED WARRANTY SECTION OF THE TERMS AND CONDITIONS FOR THE SALE OF GOODS DOCUMENT. ESTES PERFORMANCE CONCAVES MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PRODUCTS OR RELATED SERVICES, OR THE USE OR PERFORMANCE OF THE PRODUCTS UNDER ANY CONDITIONS.

     

    3.8 Product Liability Protection and Limitation of Responsibility. Dealer acknowledges and agrees that Owner’s liability arising from or in connection with the design, manufacture, distribution, sale, or use of the Products is strictly limited to the express warranties provided by the Owner and does not extend beyond those warranties. Dealer agrees to defend, indemnify, and hold harmless the Owner, its directors, officers, employees, agents, and affiliates from and against any and all claims, losses, damages, liabilities, costs, and expenses (including, but not limited to, attorneys’ fees and court costs) arising out of or related to:

    1. Any claim for bodily injury, death, property damage, or economic loss resulting from or related to the installation, use, resale, or any modification of the Products by the Dealer, including but not limited to its agents, employees, or customers.
    2. Any failure by the Dealer to properly instruct its employees, agents, customers, or third parties regarding the safe and/or proper use of the Products;
    3. Any unauthorized modification, alteration, or misuse of the Products by the Dealer, its agents, customers, or any third party;
    4. Any representation or warranty made by the Dealer, its agents, or customers beyond the express terms of the Owner’s warranty;
    5. Any damage or alteration to the Product by the Dealer, its agents, or customers, or any third party, knowingly or unknowingly;
    6. Any performance of the Product that could be caused by defects, shipping damages, or other unknown causes;
    7. Any performance of the Product that could be caused or be the result of environmental conditions including but not limited to weather, harvest conditions, crop conditions, combine harvester conditions, or mechanical problems.

     

    YOU AGREE THAT YOUR USE OF THE SERVICES AND PRODUCTS SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, ESTES PERFORMANCE CONCAVES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. OWNER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. OWNER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND OWNER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

    OWNER PRODUCTS PERFORMANCE CAN VARY DEPENDING ON MANY FACTORS INCLUDING BUT NOT LIMITED TO GEOGRAPHY, CROP, COMBINE, WEATHER CONDITIONS, COMBINE OPERATOR, COMBINE SETTINGS. OWNER CLAIMS ARE BASED UPON USER FEEDBACK AND TESTING. PAST CONCAVE PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS.

     

    Limitation of Liability. In no event shall the Owner be liable to the Dealer or any third party for any indirect, incidental, consequential, special, or punitive damages, including but not limited to loss of profits, business interruption, or loss of data, even if the Owner has been advised of the possibility of such damages. The Owner’s total liability for any and all claims arising out of or related to this Agreement or the Products sold hereunder shall not exceed the amount paid by the Dealer for the Products giving rise to the claim.

     

    3.9 Exclusion of Consequential Damages; Limitation of Liability. IN NO EVENT SHALL OWNER BE LIABLE FOR ANY PENALTIES (INCLUDING, WITHOUT LIMITATION, ADMINISTRATIVE PENALTIES), SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER OCCURRING, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR ECONOMIC LOSS, LOSS OF GOOD WILL, LABOR COSTS, LOSS OF PROFITS OR REVENUES, OR CLAIMS RESULTING FROM CONTRACTS BETWEEN YOU, ITS CUSTOMERS, END-USERS AND/OR SUPPLIERS, REGARDLESS OF WHETHER ANY OF THE FOREGOING ARISES FROM THIS DOCUMENT OR OWNER’S PERFORMANCE HEREUNDER OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE PRODUCTS FOR ANY PURPOSE WHATSOEVER. Subject always to the foregoing sentence, the total liability of Owner for any other kind of damages arising from any cause of action or claim whatsoever, whether: (a) in contract; (b) in tort (including negligence, whether sole, joint, contributory, concurrent, or otherwise, but not including intentional, reckless, or wanton tort); (c) under strict liability; (d) arising out of any representation or instruction, or under any warranty; or (e) otherwise arising out of, connected with, or resulting from the design, manufacture, sale, resale, delivery, repair, replacement, use or misuse of any Products or the furnishing of any service shall in no event exceed the price allocable to and paid to Owner for the individual unit of Products or service or part thereof which gives rise to the cause of action or claim. Owner and You acknowledge and agree that the exclusions of remedies and limitations of liability and damages herein reflect a bargained-for allocation and limitation of risk, liability, and damages. This Section shall apply notwithstanding any other provision of this Agreement.

     

    3.10 All Sales Final. All sales to You are final. No Products may be returned without prior written authorization from Owner.

     

     

    DUTIES AND OBLIGATIONS OF THE YOU

     

    4.1 Sales Promotion; Actions by Dealer. Dealer agrees that it will use its best efforts to sell and actively promote, in all lawful ways, the sale and distribution of the Products in the Territory. Dealer shall not make any representation or statement to prospective purchasers, Customers, or end-users of Products in connection with the manufacture, installation, repair, replacement, use, selection of materials, or operation of the Products or other terms or conditions of the sale thereof, except as specifically authorized by Owner. Dealer agrees not to recommend Products for unsuitable applications or any application not recommended by Owner. Dealer agrees not to publish and not to permit to be published, any testimonials, photographs, or statements of any person concerning Owner or the Products without first obtaining the written consent of Owner. Dealer shall not engage in any activity that would in any way diminish or detract from the sales potential of the Products or their attractiveness to potential buyers or users thereof. Dealer agrees to promptly advise Owner of any complaints with respect to Products. Dealer shall make clear with customers and prospective customers that it is acting as a dealer of the Products and not as an agent of the Owner. Accordingly, Dealer shall: (a) be responsible for all customer account receivables; and (b) not pledge the credit of Owner or give any condition or warranty or make any representation on behalf of the Owner or commit the Owner to any contracts nor, without the prior written consent of Owner, make any promises or guarantees with reference to the Products beyond those contained in the promotional material supplied by Owner or otherwise incur any liability on behalf of the Owner.

     

    4.2 Your Business. You warrant and represent to Owner that You have and agree that to maintain during the term of this Agreement, all resources (may include equipment, facilities, materials, and knowledgeable personnel) necessary to actively promote the Products. You shall inform Owner immediately of any changes which might affect the performance of its obligations hereunder.

     

    4.3 Insurance. Dealer shall maintain, at its own expense, general public liability and property damage insurance with policy limits no less than One Million Dollars ($1,000,000 USD) protecting Dealer against loss by reason of liability arising from the performance of this Agreement and/or Products. Dealer will provide written proof of this insurance to the Owner when requested.

     

    4.4 Indemnity by You. You hereby agree to and shall indemnify, defend, and hold harmless Owner, its directors, officers, agents, employees, shareholders, debt holders and debenture holders from and against each and every cause of action, claim, lawsuit, loss, cost, damage, tax, expense (including reasonable legal fees) or liability, arising out of or related to: (i) loss of or damage to the property, or death of, or personal injury to You, its Customers and/or any third party; and/or (ii) any lawsuit or claim against, or damage to, Owner resulting from or in connection with any breach hereof, non-compliance herewith, or the actions or failure to act of You, its directors, officers, agents, or employees, including but not limited to: (a) breach of any provision of this Agreement by You; (b) negligence or other tortious conduct by You or its authorized agents; (c) representations or statements not specifically authorized by Owner herein or otherwise in writing; (d) violation by You of any law, regulation, or order now or hereafter in effect in the Territory; or (e) death or injury to persons who use the Products, due to inaccurate or incomplete information provided to Customers and/or end-users using the Products.

     

    DUTIES OF OWNER

     

    5.1 Sale of Products. Owner will sell Products to You in accordance with the terms of this Agreement.

     

    5.2 Consultation. Owner agrees, at reasonable times during business hours, to make itself available for technical advice and consultation in connection with the sale of the Products. Such assistance shall be without charge to You, except as may be otherwise mutually agreed.

     

    INTELLECTUAL PROPERTY RIGHTS

     

    6.1 Intellectual Property Ownership. You recognize and agree that all intellectual property rights relating to the Products, Owner, and/or to this Agreement, including but not limited to all trademarks, service marks, copyrights, patents, trade names, trade secrets, logotypes, advertising and other commercial symbols, and goodwill (collectively, “Intellectual Property”), whether registered or not, used on or related to the Products or Owner, are and shall remain the sole property of Owner and/or Assignee. Nothing in this Agreement shall be deemed to confer upon or transfer to You any right, title, interest, or license, whether express or implied, in or to any of Owner’s Intellectual Property. You further agree to immediately report to Owner any illegal use or infringement of Owner’s Intellectual Property. These Intellectual Property assets include but are not limited to Patents Pending, Marks Pending, Pat. No.10,045,487; Pat. No. 10,869,427; Pat. No. 10,905,050; Pat. No.10,716,260; Pat. No. 10, 785,916; Pat. No. 11,464,169; Pat. No. D949930 Or Marks “Estes Concaves”; “Estes Performance Concaves”; “Xtreme Threshing”; “XPR”; or “Precision Harvesting”; or “We Are Harvest Experts”; or “The Bar Above”. Unauthorized use, reproduction, distribution, or modification of any content, including but not limited to text, images, and product designs, in any format or media, is strictly prohibited. Violations may result in legal action to protect Owner’s Intellectual Property rights, including damages and injunctive relief.

     

    6.2 Use of Marks and Names. Dealer covenants and agrees that it will not during the term hereof or at any time thereafter, adopt or use Owner’s Intellectual Property, without prior written approval of Owner. Dealer covenants and agrees not to remove, alter, deface, conceal, or add to any trademark, trade name, service mark, label, marking, logo, decal, type, or serial number that may be affixed to or marked on the Products, and Dealer shall take all reasonable steps to ensure that any trademark, trade name, service mark, label, marking, logo, decal, type, or serial number affixed to or marked on the Products is not removed, altered, or defaced by others. Dealer will not use the corporate name of Owner or any trademark, service mark, trade name, or other Intellectual Property of Owner, in or on any of its telephone directory listings, letterheads, business cards, or other office or business supplies in a manner or form without the prior written approval of Owner. Dealer shall not use the Intellectual Property in any way which would tend to allow any of it to become generic, lose its respective distinctiveness, become liable to mislead the public, or be materially detrimental to, or inconsistent with, the good name, goodwill, reputation, and image of Owner.

     

    6.3 Confidentiality. You agree that all know-how, drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, memoranda, You pricing, sales and technical bulletins, service manuals, customer lists, and all other material and specifications furnished by Owner to You pursuant to or in connection with this Agreement that in any way relate to the Products and/or Owner’s business (collectively, “Confidential Information”) shall be and remain the sole and exclusive property of Owner. You acknowledges and agree that Confidential Information is and will be comprised of valuable trade secrets of, and is proprietary to, Owner, and shall be used only as directed by Owner in writing and then only to the extent necessary to acquaint potential purchasers of Products with the use thereof. You covenant and agree that You will not at any time during the term hereof or at any time thereafter use such Confidential Information for its own benefit or disclose or allow to be disclosed any such Confidential Information to any third party, including prospective purchasers, except in accordance herewith. The foregoing obligations shall not extend to information that is or becomes public through no fault of You. Owner may notify anyone doing business with You or evidencing an intention to do business with You as to the existence and provisions of this Section.

     

    6.4 NDA . You have read, understood and agree to be bound by the Confidentiality and Non-Disclosure Agreement, and understand its provisions are inclusive to this Agreement.

     

    COMPLIANCE WITH LAWS, RULES AND REGULATIONS

     

    7.1 Your Compliance. You shall at all times hereafter, at Your expense, comply with any and all laws, rules, regulations, and orders that may be applicable to You and/or this Agreement, and any and all laws, rules, regulations, and orders that govern or affect the ordering, shipment, import, sale, delivery, or redelivery of Products in the Territory including without limitation, obtaining any necessary import licenses, certificates of origin or other requisite documents and collecting, remitting and paying all or any applicable taxes, charges, levies, customs duties, assessments and other fees of whatsoever kind in respect of the purchase and importation of the Products into and the distribution of Products within the Territory. You agree You will not engage in any course of conduct that, in Owner’s reasonable belief, would cause Owner and/or You to be in violation of any applicable laws, rules, regulations, and/or orders.

     

    7.2 Indemnification.

    You shall indemnify, defend, completely absolve, waive, release, and hold harmless Estes Performance Concaves, its board members, shareholders, directors, members, managers, officers, employees, agents, successors, and assigns from and against any and all claims, liabilities, losses, damages, costs, and expenses, including attorney’s fees, resulting from, arising out of, or in connection with:

    (i) Doing business with Estes Performance Concaves;
    (ii) Direct or indirect use of Products or services, including but not limited to misuse, improper handling, or failure to follow Estes Performance Concaves’ guidelines or recommendations regarding the safe and proper use of the Products;
    (iii) Direct or indirect installation of Products or services, including but not limited to improper or unauthorized installation, or installation performed by unqualified personnel, regardless of whether Estes Performance Concaves provided guidance or instructions;
    (iv) Design and/or engineering of Products or services, including any modifications made to the Products by You, its employees, or agents, without prior written consent from Estes Performance Concaves;
    (v) Development, manufacture, licensing, marketing, sale, or other disposition or any other commercial exploitation of Products or services, including any false or misleading claims or representations made by You or its agents regarding the Products;
    (vi) Any and all product liability losses, costs, damages, fees, or expenses arising out of or in connection with Estes Performance Concaves’ Products, whether claimed by reason of breach of warranty, negligence, product defect, or otherwise, and regardless of the form in which any such claim is made;
    (vii) Failure to comply with applicable laws, regulations, and industry standards regarding the sale, marketing, distribution, and use of the Products, including but not limited to health and safety regulations, consumer protection laws, and environmental regulations;
    (viii) Any breach of confidentiality or intellectual property rights of Estes Performance Concaves, including but not limited to unauthorized use, disclosure, or dissemination of Estes Performance Concaves’ proprietary information, trade secrets, patents, trademarks, or copyrights;
    (ix) Claims arising out of third-party lawsuits, disputes, or allegations regarding Your actions or omissions, including disputes with customers, suppliers, or other third parties related to the sale or distribution of Estes Performance Concaves’ Products;
    (x) Costs or liabilities resulting from Your failure to adequately insure its activities, premises, or personnel involved in the distribution or handling of Estes Performance Concaves’ Products;
    (xi) Injuries, property damage, or other liabilities resulting from Your failure to properly maintain and service the Products as required by Estes Performance Concaves’ specifications or recommendations;
    (xii) Any claims, liabilities, damages, or losses, including but not limited to financial or monetary damages, loss of business opportunities, lost profits, lost data, or any consequential, incidental, or punitive damages, directly or indirectly arising from or related to the performance, non-performance, or failure of the Products or services for any reason whatsoever, including but not limited to product defects, wear and tear, design flaws, manufacturing defects, or failure to meet performance expectations;
    (xiii) Any claims or liabilities arising out of or connected to changes in market conditions, acts of God, or other force majeure events beyond the control of Estes Performance Concaves that may affect the performance, value, or utility of the Products or services;
    (xiv) Any liability arising out of misrepresentations, miscommunication, or misinterpretation of any specifications, guarantees, or warranties made by You, its employees, or agents, regardless of any input or guidance provided by Estes Performance Concaves;
    (xv) Any failure of the Products or services to comply with specific performance metrics, standards, or expectations not expressly guaranteed in writing by Estes Performance Concaves, including claims based on implied warranties of fitness for a particular purpose or merchantability, regardless of the outcome or intended use;
    (xvi) Any financial loss, damages, or liabilities arising from the use or integration of the Products or services with any third-party products, equipment, or systems not approved or tested by Estes Performance Concaves;
    (xvii) Any claims for indemnification or contribution arising from actions or omissions by third parties, including but not limited to contractors, subcontractors, or other agents acting on Your behalf or for Your benefit;
    (xviii) Any and all claims arising from alleged defects or failures in Products or services that occur outside the specified warranty period or after the expiration of any applicable limitations or disclaimers provided by Estes Performance Concaves.

     

    Notwithstanding anything to the contrary contained herein, Estes Performance Concaves expressly disclaims any and all liability for any damages, losses, or liabilities, whether direct, indirect, incidental, consequential, or punitive, arising out of or related to the performance, non-performance, or use of the Products or services, to the fullest extent permitted by law. In no event shall Estes Performance Concaves’ liability, if any, exceed the amount paid by You for the specific Products or services giving rise to the claim.

     

    7.3 Nondisparagement. You shall not make any disparaging, libelous or defamatory comments about the Owner and/or Products, whether true or not, except to comply with any summons, court order or subpoena. Further, You covenant and agree that You will not, directly or indirectly, in public or private, deprecate, impugn or otherwise make any remarks that would tend to or be construed to tend to defame Owner, or its  affiliates, successors, officers, employees, directors (in each case, in all capacities), products, services or business practices, or its or their reputation, nor will You assist any other person, firm or company in engaging in such activities. Without in any way limiting the foregoing, the You also agree not to make any public statements (whether oral or written) regarding and disputes with or from the Owner, or to make any statements (whether oral or written) to any person or entity without authorization by the Owner in writing. In the event of a violation of this section, the Owner reserves the right to seek not only injunctive relief but also compensatory and punitive damages, including any monetary losses suffered due to reputational harm.

     

    TERM AND SURVIVABILITY

     

    8.1 Term. This Agreement and Terms shall continue indefinitely.

     

    8.2 Survival. You agree that this Agreement and Terms shall be binding upon Your heirs, executors, assigns and administrators, and shall inure to the benefit of the Owner, its Affiliates, successors and assigns.

     

    MISCELLANEOUS

     

    9.1 Assignment or Transfers. This Agreement and the rights and duties You hereunder are not assignable, transferable, or subject to delegation by You without the prior written consent of Owner, which consent may be unreasonably withheld or delayed, and any attempted assignment, transfer, or delegation without such written consent shall be null and void.

     

    9.2 Severability. If any one or more provisions of this Agreement shall be unenforceable, such unenforceability shall not affect the other provisions of this Agreement. To the extent permitted by applicable law, the parties hereto waive any provision of law that renders any term or provision hereof unenforceable in any respect.

     

    9.3 Entire Agreement. This Agreement sets forth the entire agreement and terms and understanding between the parties regarding the subject matter hereof, and merges all prior discussions and negotiations, verbal or written, between them. Neither of the parties shall be bound by any conditions, definitions, representations, or warranties, verbal or written, with respect to the subject matter of this Agreement other than as expressly provided herein. This Agreement supersedes and is in lieu of all existing agreements or arrangements between the parties hereto relating to the subject matter hereof.

     

    9.4 Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in this Agreement are reasonable in scope and duration and are necessary to protect the Owner. If any provision is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other provision of this Agreement. Any unauthorized use or disclosure of Confidential Information in violation shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Owner for which monetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Owner will be entitled to all available civil remedies, including:

     

    1. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining You and any other person, partnership, firm, corporation, association or other legal entity acting in concert with You from any actual or threatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other person, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has been disclosed or used or is threatened to be disclosed or used; and

     

    2. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining You from violating, directly or indirectly, the restrictions of Intellectual Property Rights in any capacity identified in Paragraph 6, supra, and restricting third parties from aiding and abetting any violations of the Intellectual Property Rights; and

     

    3. Compensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Owner in enforcing this Agreement.

     

    Nothing in this Agreement shall be construed as prohibiting the Owner from pursuing any other legal or equitable remedies available to it for actual or threatened breach of the, and the existence of any claim or cause of action by You against the Owner shall not constitute a defense to the enforcement by the Owner of any of the provisions of this Agreement. The Owner have fully performed all obligations entitling it to the covenants of this Agreement and therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.

     

    9.5 Enforceability. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If one or more provisions of this Agreement are held to be illegal or unenforceable under applicable law, such illegal or unenforceable portion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise remain in full force and effect and enforceable. You acknowledge and agree that any breach or threatened breach of this Agreement will cause irreparable harm to the Owner for which damages would not be an adequate remedy, and, therefore, the Owner is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies. The pursuit of injunctive relief does not preclude the Owner from seeking any other legal or equitable remedies available under this Agreement or under applicable law.

     

    9.6 Privacy . You have read, understood and agree to the Privacy Policy, and understand its provisions are inclusive to this Agreement.

     

    10.1 Private Resolution. The Parties agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement, including the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), shall first be attempted to be resolved through good faith negotiations between the Parties. If the Dispute cannot be resolved within thirty (30) days after one Party provides written notice of the Dispute to the other Party, the Dispute shall be resolved through binding arbitration, as set forth below.

     

    10.2 Arbitration. If the Parties are unable to resolve a Dispute through negotiation, the Dispute shall be submitted to final and binding arbitration administered by the [American Arbitration Association (AAA)] under its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in [Dallas County, Texas] or another location mutually agreed upon by the Parties. The language of the arbitration shall be English.

     

    10.3 Confidentiality. The Parties agree that all aspects of the arbitration, including but not limited to the existence of the arbitration, the submissions made, and the arbitration award, shall be confidential and shall not be disclosed to any third party without the prior written consent of both Parties, except as necessary to enforce the award or as required by law.

     

    10.4 Finality. The arbitrator’s award shall be final and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall not have the authority to award punitive damages or any damages that are expressly excluded under this Agreement.

     

    10.5 Costs and Fees. Each Party shall bear its own costs and attorneys’ fees incurred in the arbitration, and the costs of the arbitration shall be borne equally by the Parties, unless the arbitrator decides otherwise in the award.

     

    10.6 Waiver of Jury Trial. The Parties expressly waive their right to a jury trial or to have any dispute between them resolved in a court of law, except as necessary to enforce the arbitrator’s award.

     

    10.7 Governing Law. The arbitration shall be governed by the Federal Arbitration Act (FAA) and by the laws of the State of Texas, without regard to its conflict of law principles. In the event that any portion of this arbitration clause is deemed unenforceable, it shall be severed, and the remainder of this clause shall remain in full force and effect.

    This Agreement is the complete concerning the subject matter hereof and supersedes any prior such Terms and Agreements; and may not be amended or modified in any manner, except in a writing signed by the Parties. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS.  THE PARTIES MUTUALLY CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS IN DALLAS COUNTY, TEXAS AND AGREE THAT ANY ACTION, SUIT OR PROCEEDING CONCERNING, RELATED TO OR ARISING OUT OF THIS AGREEMENT AND THE NEGOTIATION OF THIS AGREEMENT WILL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT IN DALLAS COUNTY, TEXAS AND THE PARTIES AGREE THAT THEY WILL NOT RAISE ANY DEFENSE OR OBJECTION OR FILE ANY MOTION BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INCONVENIENCE OF THE FORUM OR THE LIKE IN ANY CASE FILED IN A FEDERAL OR STATE COURT IN DALLAS COUNTY, TEXAS.

     

    IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY CEASE ALL USE OF THE DEALER PORTAL, WEBSITE, AND SERVICES.

     

    11. Specific Performance and Injunctive Relief. In the event of any actual or threatened breach of Sections 6 (Intellectual Property), 6.3 (Confidentiality), 7.3 (Nondisparagement), or any other material obligations of this Agreement that could cause irreparable harm to the non-breaching Party, the Parties agree that monetary damages may be inadequate to fully compensate the non-breaching Party. Therefore, the non-breaching Party shall be entitled to seek specific performance, injunctive relief (both temporary and permanent), or any other equitable remedy, without the necessity of posting a bond or other security, in addition to any other remedies available under this Agreement or at law.

     

    The Parties acknowledge that the remedies provided in this section are cumulative and in addition to any and all other remedies available under applicable law or equity. In the event of such a breach, the non-breaching Party may seek relief in a court of competent jurisdiction, in addition to, or in lieu of, arbitration proceedings as set forth in Section 10 (Dispute Resolution and Arbitration).