GEMSTONE LIGHTS
AUTHORIZED DEALER AGREEMENT 

THIS AGREEMENT is dated Dec 3, 2023 (the “Effective Date”)

BETWEEN:

 

GEMSTONE LIGHTS USA CORP., a corporation existing under the laws of Delaware]
(“Gemstone”)
- and -
Dealer Name:
Contact Name:
Address:
City:
State:
Zip Code:
Country:
Telephone:
E-mail:
(the “Dealer”)

CONTEXT:

  1. Gemstone is the manufacturer and owner of the Products.
  2. The Dealer wishes to purchase, sell, and install the Products, and Gemstone wishes to engage the Dealer for such purposes, on the terms and conditions contained in this Agreement

THEREFORE, the Parties agree as follows:

Article 1
INTERPRETATION

1.1 Definitions
In this Agreement, the following terms have the following meanings:
1.1.1 “Agreement” means this agreement, as it may be confirmed, amended, modified, supplemented or restated by written agreement between the Parties.
1.1.2 “Confidential Information” means the terms of this Agreement, as well as any information relating to the assets, business plans, customers, employees, equipment, financial statements and financial performance, Intellectual Property Rights, inventory, market strategies, operations, pricing, products, suppliers, and trade secrets of Gemstone or its business, whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labelled or identified as confidential or proprietary, including without limitation all analyses, compilations, records, data, reports, correspondence, memoranda, specifications, materials, applications, technical data, studies, derivative works, reproductions, copies, extracts, summaries or other documents containing or based upon, in whole or in part, any of the information listed above in this Section 1.1.2, but excluding information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by Dealer or any of its representatives; (b) is or becomes available to Dealer on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Dealer before being disclosed by or on behalf of Gemstone; or (d) was or is independently developed by Dealer without reference to or use of, in whole or in part, any of Gemstone’s Confidential Information.
1.1.3 “Dealer” is defined in the recitals of the Parties, above.
1.1.4 “Gemstone” is defined in the recitals of the Parties, above.
1.1.5 “Governmental Authority” means any federal, provincial, state, local, municipal, regional, territorial, aboriginal, or other government, governmental or public department, branch, ministry, or court, domestic or foreign, including any district, agency, commission, board, arbitration panel or authority and any subdivision of any of them exercising or entitled to exercise any administrative, executive, judicial, ministerial, prerogative, legislative, regulatory or taxing authority or power of any nature, and any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of them, and any subdivision of any of them.
1.1.6 “Intellectual Property Rights” means all intellectual property, industrial property and proprietary rights, including without limitation rights comprising or relating to: (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereto, and patents, patent applications, industrial design applications, industrial design registrations, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (b) registered and unregistered trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, web addresses, uniform resource locators (URLs), email addresses, rights in telephone and fax numbers, and accounts with social media companies (including handles, user/account names and hashtags), together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith (collectively, “Trademarks”); (c) published and unpublished works of authorship (whether or not copyrightable), including without limitation photos, videos, graphics, text, layouts, designs, software, documentation, websites, website content and mask works, and all copyrights (registered or unregistered) and related moral rights and rights of restraint therein and/or thereto; (d) all trade secrets and confidential information; (e) all ideas, concepts, technology, discoveries, research and development, know-how, recipes, formulae, formulations, compositions, manufacturing and production processes and techniques, processes, methods of doing business, research and development information, software and software development methodologies, technical data, designs, drawings, specifications, rights in molds, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals; and, (f) all - 3 - applications and registrations for the foregoing, including the right to apply therefore, and any and all renewals, extensions and prolongations thereof that may be secured under all laws now or hereafter in force, for the full term and to the full extent of all such rights, in all countries throughout the world.
1.1.7 “Parties” means the Dealer and Gemstone, collectively, and “Party” means either of them.
1.1.8 “Person” will be broadly interpreted and includes:
1.1.8.1 a natural person, whether acting in his or her own capacity, or in his or her capacity as executor, administrator, estate trustee, trustee or personal or legal representative, and the heirs, executors, administrators, estate trustees, trustees or other personal or legal representatives of a natural person;
1.1.8.2 a corporation or a company of any kind, a partnership of any kind, a sole proprietorship, a trust, a joint venture, an association, an unincorporated association, an unincorporated syndicate, an unincorporated organization or any other association, organization or entity of any kind; and
1.1.8.3 a Governmental Authority.
1.1.9 “Products” includes any products listed in the Gemstone online store from time to time or otherwise provided by Gemstone to the Dealer.
1.1.10 “Territory” means United States of America.

Article 2
AUTHORIZATION AND DUTIES

2.1 Appointment and Authorization
Gemstone hereby appoints and authorizes the Dealer on a non-exclusive basis to purchase, sell, and install Products, subject to the terms and conditions of this Agreement.
2.2 Authority Not Transferable
The Dealer is not permitted to extend, transfer, or assign this appointment or this Agreement to any other Person. The Dealer may form relationships with other companies to promote the Products; however, the Dealer is the only organization authorized hereunder to install the Products provided to Dealer by Gemstone. The Dealer may not sell Products to any Person without performing the installation of those Products, including the sale of Products to any Person for the purpose of self installation. All installations of Products must be completed by a trained and authorized dealer of Gemstone.
2.3 Duties of the Dealer
2.3.1 The Dealer will, at its own cost and expense make its best efforts to advertise and promote the sale of the Products, and satisfy all legal requirements for the delivery and, if applicable, importation, sale and installation of the Products.
2.3.2 The Dealer is fully responsible for the complete satisfaction of its customers and will make best efforts to resolve any issues as they arise and maintain a positive image for Gemstone while upholding the highest standards of quality installations and customer service.
2.3.3 The Dealer agrees that for all Gemstone product installations, the Dealer will only use Gemstone products in connection with such product installations. As examples, (i) the Dealer must purchase Gemstone tracks when installing the Gemstone track system and are not permitted to build their own track or purchase materials or products from any competitor of Gemstone for such installations; and (ii) the Dealer must not use Gemstone products with other manufacturers’ systems (ie. using Gemstone’s controller with another manufacturer's power kit, lights, etc.).
2.3.4 The Dealer is solely responsible to comply with and satisfy all local legal requirements, building codes, and electrical codes when selling and installing Products and is liable for any local infractions and penalties associated with non-compliance.
2.3.5 The Dealer must honor Gemstone’s warranties with their customers and provide product warranty registration information to their customers, and either a link to or a full copy of
Gemstone’s current Limited Warranty to their customers with each sale of Gemstone products and at any time a customer requests a copy of the Gemstone warranty.
2.3.6 The Dealer must also provide a minimum of a one (1) year labor warranty managed by the Dealer directly.
2.3.7 In carrying out its duties under this Agreement, the Dealer will conduct itself with professionalism and work with Gemstone and its authorized dealers in a cooperative and positive manner.
2.4 Additional Rules, Policies, and Guidelines
To ensure the quality and continuity of Gemstone’s brand, Gemstone has additional rules, policies, and guidelines, Gemstone’s Branding Guidelines (which may be amended from time to time in Gemstone’s sole discretion), Code of Ethics, Code of Conduct, terms and conditions of sale for the Gemstone store and terms of service for the Gemstone store. The Dealer agrees to comply with all such rules, policies, and guidelines as may be in force from time to time. The Dealer acknowledges that such adherence is a condition to this Agreement and that a violation of any such rules, policies, guidelines or terms may be grounds for immediate termination. In the event of a conflict between the terms of this Agreement and the terms of any of the foregoing rules, policies or guidelines, the terms of this Agreement shall govern and prevail.

Article 3
TERM AND TERMINATION

3.1 Term
The term of this Agreement shall commence on the Effective Date and shall end on Sep 30, 2024 (the “Initial Term”), subject to Section 3.2. After the Initial Term, this Agreement will automatically renew for consecutive one year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless a party gives written notice of its intent not to renew at least 90 days before the expiration of the then-current Term, subject to Section 3.2.
3.2 Termination
Gemstone may terminate the Term for any reason upon written notice to the Dealer.
3.3 Effect of Termination
Upon termination of the Term, the Dealer will immediately:
3.3.1 cease selling and installing Products;
3.3.2 cease using all Intellectual Property Rights of Gemstone in any and all manners;
3.3.3 cease advertising itself as an authorized dealer of Gemstone;
3.3.4 provide Gemstone with the contact information of every customer that received Products from the Dealer during the course of this Agreement; and
3.3.5 return to Gemstone all Confidential Information, and all advertising, informational, or technical material relating to the Products or Gemstone in the Dealer’s possession.
3.3.6 Within 14 days following the last day of the Term, Dealer shall notify Gemstone in writing of the description and quantity of all Products in Dealer’s remaining inventory. On or before 14 days after Gemstone receives such notice, Gemstone may, in its sole discretion, offer to purchase all or a portion of any remaining inventory free of all liens, claims, or encumbrances, at a price equal to the lesser of Dealer’s cost therefor and Gemstone’s then-prevailing distributor price. Dealer must accept Gemstone’s offer and promptly deliver, at Dealer’s expense and risk of loss, the ordered Products to Gemstone’s designated carrier for delivery to Gemstone. Repurchased Products must be returned in their original packaging, unopened and undamaged.
3.4 Continuing Obligations
Termination of the Term will not release, discharge, or otherwise affect the sales order terms and conditions, warranty obligations of Gemstone or the Dealer, any limitations on liability or indemnification obligations contained in this Agreement, or the application of the Section 3.3, 3.4, Articles 4, 5, 6 and 7.

Article 4
INTELLECTUAL PROPERTY

4.1 Intellectual Property
4.1.1 The Dealer may use the Intellectual Property Rights of Gemstone only as authorized by Gemstone in this Agreement in connection with the sale and installation of the Products as authorized under this Agreement. Without limitation of the foregoing, subject to the express rights and licenses granted to the Dealer by Gemstone in this Agreement, the Dealer acknowledges and agrees that: (a) any and all of Gemstone’s Intellectual Property Rights are the sole and exclusive property of Gemstone or its licensors; (b) the Dealer shall not acquire any ownership interest in any of Gemstone’s Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by the Dealer of Gemstone’s Intellectual Property Rights inures to the benefit of Gemstone or its licensors, as the case may be; (d) if the Dealer acquires any Intellectual Property Rights in or relating to any Products purchased under this Agreement (including without limitation any rights in any Trademarks, derivative works, or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Gemstone or its licensors, as the case may be, without further action by either party; and (e) the Dealer shall use Gemstone’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Gemstone.
4.1.2 Subject to Gemstone’s Branding Guidelines, which may be amended from time to time in Gemstone’s sole discretion, and the terms and conditions of this Agreement, Gemstone hereby grants to the Dealer a non-exclusive, non-transferable, and non-sublicensable license to use Gemstone’s Trademarks in the Territory during the Term solely on or in connection with the promotion, advertising, and resale of the Products in accordance with the terms and conditions of this Agreement. The Dealer will promptly discontinue the display or use of any Trademark or change how any Trademark is displayed or used with regard to the Products when requested by Gemstone. Other than the express licenses granted by this Agreement, Gemstone grants no right or license to the Dealer, by implication, estoppel, or otherwise, to the Products or any Intellectual Property Rights of Gemstone.
4.1.3 The Dealer is authorized to refer to and advertise itself as an authorized dealer of the Products in the Territory as follows: “Authorized Dealer of Gemstone Lights.” Any use of the name “Gemstone Lights” by the Dealer in connection with its distribution and sale of the Products or advertising of the name “Gemstone Lights” is at the Dealer’s sole cost and expense.
4.1.4 Notwithstanding anything to the contrary in this Agreement, the Dealer shall not use the name “Gemstone Lights” or any Gemstone Trademarks: (a) on, directly, or indirectly in connection with, any place of business or other facility that is not used for, or directly related to, the marketing of the Products; (b) on, or directly or indirectly in connection with, any place of business or other facility that is located outside the Territory; (c) on, or directly or indirectly in connection with, signs, letterheads, advertising, or other promotional materials, or otherwise, in a manner that would indicate that the Dealer has any place of business or other facility located outside the Territory that is used for or related to the sale of Products; or, (d) in, or directly or indirectly as a part of, the trade, corporate, or firm name or style of the Dealer or any division, subsidiary, or affiliate thereof.
4.1.5 Notwithstanding the foregoing, the Dealer shall submit to Gemstone for prior approval any proposed publication, advertising, or other printed material identifying itself as an authorized Products dealer in the Territory, including references to itself as an authorized Products dealer in the Territory in any telephone, internet, or other directory listings; provided, however, this Section 4.1.5 does not apply to those materials that were provided and approved by Gemstone for the Dealer’s intended use.
4.1.6 The Dealer shall not: (a) take any action that may interfere with any of Gemstone’s rights in or to Gemstone’s Intellectual Property Rights, including Gemstone’s ownership or exercise thereof; (b) challenge any right, title, or interest of Gemstone in or to Gemstone’s Intellectual Property Rights; (c) make any claim or take any action adverse to Gemstone’s ownership of Gemstone’s Intellectual Property Rights; (d) register or apply for registrations, anywhere in the world, for Gemstone’s Trademarks or any other Trademark that is similar to Gemstone’s Trademarks or that incorporates Gemstone’s Trademarks in whole or in confusingly similar part; (e) use any mark, anywhere, that is confusingly similar to Gemstone’s Trademarks; (f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including the Products) or any Gemstone Trademark; (g) misappropriate any of Gemstone’s Trademarks for use as, or as part of, a domain name without prior written consent from Gemstone; and, (h) alter, obscure, or remove any of Gemstone’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including the Products), marketing materials, or other materials that Gemstone may provide.
4.1.7 The Dealer shall ensure that all Products sold by the Dealer and all related quotations, specifications, and descriptive literature, and all other materials carrying Gemstone’s Trademarks, are marked with the appropriate trademark notices in accordance with Gemstone’s Branding Guidelines, which may be amended from time to time in Gemstone’s sole discretion.
4.1.8 The Dealer will: (a) notify Gemstone promptly of any suspected unauthorized use, infringement or passing off, or any pending or threatened litigation or other proceeding, concerning Gemstone’s Intellectual Property Rights which may come to its attention; and, (b) execute all applications, agreements or other instruments that may be reasonably requested by Gemstone for the purpose of protecting the interests and rights of Gemstone in Gemstone’s Intellectual Property Rights.
4.1.9 Upon termination of this Agreement, and without limitation of the terms of Section 3.3: (a) the Dealer’s rights under Sections 4.1.2 and 4.1.3 cease immediately; and, (b) the Dealer shall immediately cease all display, advertising, promotion, and use of all of Gemstone’s Trademarks and shall not thereafter use, advertise, promote, or display any trademark, trade name, or product designation or any part thereof that is similar to or confusing with Gemstone’s Trademarks or with any trademark, trade name, or product designation associated with Gemstone or any Products.
4.2 No Reverse Engineering
Without limiting the generality of Section 4.1, the Dealer shall not, in any capacity or manner, whether directly or indirectly, individually or in partnership or otherwise jointly or in concert with any other Person, decompile, copy, reverse engineer, decrypt, extract, or disassemble, or aid or assist in the decompilation, duplication, reverse engineering, decryption, extraction, or disassembly of, all or any part of the Products.
4.3 Marketing and Advertising
Any marketing material used by the Dealer, including brochures, business cards, banners, websites, and online advertising, must clearly state that the Dealer is an “Authorized Dealer of Gemstone Lights’’ and ensure that in no way can it be construed that the Dealer is the manufacturer of the Products or an agent of Gemstone. All designs for marketing material for trade shows including, but not limited to, banners, brochures and signs for the first time must receive the written approval of Gemstone before sending it to print. The Dealer must sell the Products using Gemstone’s brand name and is authorized to use Gemstone’s logo and trademarks solely for that purpose as provided in Section 4.1 of this Agreement. The Dealer shall not cobrand or rebrand any Products, make any false or misleading representations or warranties to any of its customers, or engage in any unfair, competitive, misleading or deceptive practices.

Article 5
NON-SOLICITATION, AND CONFIDENTIALITY

5.1 Non-Solicitation
The Dealer will not, during the Term and for a period of two (2) years from the date of termination of this Agreement, in any capacity or manner, whether directly or indirectly, individually or in partnership or otherwise jointly or in concert with any other Person:
5.1.1 Solicit any Customer or knowingly assist any Person directly or indirectly to solicit any Customer, or induce or attempt to induce any Customer to reduce or curtail its business with Gemstone or to terminate its relationship with Gemstone.
5.2 Confidentiality
5.2.1 The Dealer acknowledges and agrees that during its association with Gemstone, it will acquire Confidential Information. Accordingly, the Dealer agrees to hold in strict confidence and not disclose or use, and the Dealer will not allow any of its representatives to disclose or use, any Confidential Information, for any purpose, except as necessary to carry out its obligations under this Agreement.
5.2.2 Use of Confidential Information by, or disclosure of Confidential Information to, any Person that is not a Party to this Agreement or a representative of the Dealer permitted by the Dealer to have access to the Confidential Information, that results from a breach of the electronic security of the computers and data storage and retrieval systems or network of the Dealer or, if applicable, any representative of the Dealer, will be treated as a disclosure by the Dealer contrary to the terms of this Agreement, whether or not the breach results from a failure by the Dealer or, if applicable, any representative of the Dealer, to implement appropriate security measures consistent with best practices or otherwise take necessary precautions in order to secure the Confidential Information.
5.2.3 If the Dealer or any representative of the Dealer is required by any applicable law or by any Governmental Authority to disclose any Confidential Information, the Dealer or that representative will provide Gemstone with prompt written notice of that requirement, so that Gemstone may contest the disclosure of the Confidential Information and seek an appropriate protective order or other appropriate remedy.
5.2.4 The Dealer will notify Gemstone immediately upon discovery of any breach of this Section 5.2 or any unauthorized or unlawful disclosure, divulgence, communication or use of any Confidential Information.
5.2.5 The obligations and covenants contained in this Section 5.2 will be perpetual.
5.3 Covenants Reasonable
The Dealer acknowledges and agrees that without the covenants included in this Article 5, Gemstone would not have entered into this Agreement, that the covenants included in this Article 5 are reasonable in the circumstances and are necessary to protect the economic position of Gemstone, and that a breach of any of the Sections of this Article 5 would cause serious and irreparable harm to Gemstone which could not be compensated adequately by monetary damages, and that Gemstone may enforce the Sections of this Article 5 by injunction or specific performance (without providing a bond or other security) upon application to a court of competent jurisdiction without proof of actual damage, and despite that damages may be readily quantifiable, and the Dealer will not plead, and will not permit any of its representatives to plead, sufficiency of damages as a defence in the proceeding for injunctive relief. The remedies provided by this Section 5.3 are in addition to, and not a substitute for, any other remedies for breach to which Gemstone would be entitled at law or in equity.

Article 6
INDEMNIFICATION AND LIMITATION ON LIABILITY

6.1 Indemnification by Dealer
The Dealer will indemnify and save harmless Gemstone for any loss, liability, damage, cost, expense, charge, fine, or penalty (including the costs and expenses of any action, suit, proceeding, demand, assessment, judgment, settlement or compromise, and all interest, punitive damages, fines, penalties and reasonable professional fees and disbursements) which may be incurred by it arising out of the sale, use or installation of the Products, Dealer’s non-compliance with any law, rule or regulation; (e) Products subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal applications; (iv) applications above the rated capacity of the Products; (v) repairs or modifications made to all or part of the Products without the prior written consent of Gemstone; or (vi) a use or application other than or varying in any degree from the specifications and Gemstone’s instructions, any misrepresentation, failure to perform, or breach of this Agreement by the Dealer or its employees, independent contractors, agents or other representatives.
6.2 Insurance
The Dealer acknowledges that it is solely responsible for ensuring that it and each of its officers, employees, subcontractors, or representatives has appropriate insurance. The Dealer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1 million per occurrence and $2 million general aggregate with insurance carriers having an AM Best rating of “A- VIII” or better. Upon Gemstone’s request, Dealer shall provide Gemstone with a certificate of insurance from Dealer’s insurer evidencing the insurance coverage specified in this Agreement. Dealer shall provide Gemstone with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in Dealer’s insurance policy. Except where prohibited by law, Dealer shall waive, and shall require its insurer to waive, all rights of subrogation against Gemstone’s insurers and Gemstone.
6.3 Limitation of Liability
GEMSTONE SHALL NOT BE LIABLE TO THE DEALER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF - 10 - WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GEMSTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL GEMSTONE BE LIABLE FOR ANY AMOUNT IN EXCESS OF $10,000 USD.

Article 7
GENERAL

7.1 Time of Essence
Time is of the essence in all respects of this Agreement.
7.2 Governing Law
Any dispute arising out of or related to this Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to any rules on conflicts of laws and exclusively litigated in a state or federal court located in Delaware.
7.3 Entire Agreement
This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no representations, warranties or other agreements between the Parties in connection with the subject matter of this Agreement except as specifically set out in this Agreement. No Party has been induced to enter into this Agreement in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included as a term in this Agreement.
7.4 Notices
Any notice, demand, request, consent, approval, or other communication which is required or permitted by this Agreement to be given or made by a Party must be in writing and either delivered personally or by courier, sent by prepaid registered mail, or transmitted by e-mail or functionally equivalent electronic means of transmission, charges (if any) prepaid, and must be sent to the intended recipient at its address as follows:
 
to Gemstone at the following address:
170, 11080 – 50 Street SE
Calgary, AB T2C 5T4
Attention: Cole Heavenor
Tel. No.: 1-888-908-2675
E-mail: cole@gemstonelights.com
to the Dealer, at the address noted on the first page of this Agreement;
or at any other address as any Party may at any time advise the other in accordance with this Section 7.4. Any notice or communication delivered to the Party to whom it is addressed will be deemed to have been given or made and received(i) upon receipt when personally delivered, (ii) upon receipt when deposited for next day delivery with a recognized overnight courier service (such as FedEx or UPS), (iii) at the beginning of the fifth business day after the business day notice was deposited with the postal service, or (iv) when transmitted by electronic mail and receipt has been confirmed electronically or otherwise.
7.5 Severability
Each Section of this Agreement is distinct and severable. If any Section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that Section, in whole or in part, will not affect the legality, validity or enforceability of the remaining Sections of this Agreement, in whole or in part, or the legality, validity or enforceability of that Section, in whole or in part, in any other jurisdiction.
7.6 Amendment and Waiver
No amendment, discharge, modification, restatement, supplement, termination or waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by each Party. No waiver of, failure to exercise, or delay in exercising, any Section of this Agreement constitutes a waiver of any other Section (whether or not similar) nor does any waiver constitute a continuing waiver unless otherwise expressly provided.
7.7 Further Assurances
Each Party will execute and deliver any further agreements and documents and provide any further assurances, undertakings and information as may be reasonably required by the requesting Party to give effect to this Agreement and, without limiting the generality of this Section 7.7, will do or cause to be done all acts and things, execute and deliver or cause to be executed and delivered all agreements and documents and provide any assurances, undertakings and information as may be required at any time by all Governmental Authorities having jurisdiction over the affairs of a Party or as may be required at any time under applicable law.
7.8 Assignment and Enurement
Neither this Agreement nor any right or obligation under this Agreement may be assigned by the Dealer without the prior written consent of Gemstone. This Agreement enures to the benefit of and is binding upon the Parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors and permitted assigns.
7.9 Counterparts
Manner of Execution – Qualifying Signatures. This Agreement may be executed (i) as an original written signature in ink, (ii) by facsimile signature (e.g., a signature reproduction by physical or electronic impression or stamp) or (iii) by any electronic signature complying with (A) the United States Electronic Signatures in Global and National Commerce Act (ESIGN) (e.g., DocuSign®), (B) the laws of the State of Delaware and/or (C) with respect to a particular person signing this Agreement, the laws of the state in which such person executed this Agreement. This Agreement may be executed and delivered by the Parties in one or more counterparts, each of which will be an original, and each of which may be delivered by e-mail or other functionally equivalent electronic means of transmission, and those counterparts will together constitute one and the same instrument.
7.10 Conduct of Parties
Whenever a Section of this Agreement requires a consent or approval by a Party and notification of the consent or approval is not delivered within the applicable time limit, then, unless otherwise specified, the Party whose consent or approval is required will be conclusively deemed to have withheld its consent or approval.
7.11 Remedies Cumulative
The rights, powers and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights, powers and remedies available at law or in equity or otherwise. No single or partial exercise by a Party of any right, power or remedy precludes or otherwise affects the exercise of any other right, power or remedy to which that Party may be entitled.
7.12 No Franchise or Business Opportunity Agreement.
The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction, and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Dealer has the sole discretion to determine Dealer’s methods of operation, Dealer’s accounting practices, the types and amounts of insurance Dealer carries, Dealer’s personnel practices, Dealer’s advertising and promotion, Dealer’s customers, and Dealer’s service areas and methods. The relationship created hereby between the Parties is solely that of seller and distributor. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then the Parties shall negotiate in good faith to modify this Agreement so as to effect the Parties’ original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a distribution agreement and not a franchise agreement.
7.13 Acknowledgement
Each Party acknowledges that:
7.13.1 it has received or had the opportunity to receive independent legal advice from its own lawyer with respect to the terms of this Agreement before its execution;
7.13.2 it has read this Agreement, understands it, and agrees to be bound by its terms and conditions;
7.13.3 this Agreement is the product of the joint efforts of the Parties, it expresses their agreement, and, if there is any ambiguity in any of its provisions, that provision should not be interpreted in favour of either one of the Parties; and
7.13.4 it has received a copy of this Agreement.
Each of the Parties has executed and delivered this Agreement, as of the date noted at the beginning of this Agreement.

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Signed by Tate Leavitt
Signed On: March 16, 2023


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