WHOLESALE RESELLER AGREEMENT
TERMS AND CONDITIONS FOR WHOLESALE SALES
These TERMS AND CONDITIONS FOR WHOLESALE SALES (“Agreement”) is made and entered into upon your (“YOU” and “YOUR”) first acceptance of products for resale (“Effective Date”), from Crazy Concepts, LLC, DBA JeffSesh (“JEFFSESH”) and you as an individual or the entity you represent.
In consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows:
1.1 Subject to all of the terms and conditions of this Agreement, JEFFSESH hereby appoints YOU, and YOU hereby accept appointment as an authorized non-exclusive, independent, reseller of the JEFFSESH product (“Product(s)”) as may be provided to YOU. YOU agree to resell the Products only in a retail store and not offer or sell the products online or via ecommerce unless otherwise prior approved in writing by JEFFSESH. YOU may, subject to this Agreement, advertise the availability of the products, although YOU may NOT offer the products for sale for any unlawful purpose.
2. RELATIONSHIP OF THE PARTIES
2.1 YOU buy and sell in YOUR own name and for YOUR own account. YOU are an independent contractor as regards to both JEFFSESH and YOUR customers.
2.2 YOU shall not give any warranty or make any representation on JEFFSESH’s behalf or commit JEFFSESH to any contracts. Further, YOU shall not, without JEFFSESH’s prior written consent make any promises or guarantees with reference to the Product beyond those contained in this Agreement or expressly provided with the Product by JEFFSESH, or otherwise incur any liability on behalf of JEFFSESH.
2.3 JEFFSESH reserves the right to pre-approve any promotional material that is developed by YOU and contains references to JEFFSESH and/or JEFFSESH Product before this material enters the marketplace.
2.4 YOU should at all times seek prior approval from JEFFSESH for all promotional and press release material prior to that material being circulated in public. Such approval shall not unreasonably be withheld.
2.5 YOU shall solely be responsible for any undertaking necessary for the Product to comply with any and all local, state, territory, provincial or national law necessary for the Product to be marketed and/or sold in that market.
2.6 YOU warrant and represent that in the performance of this Agreement, YOU will comply with all applicable statutes, rules, regulations and orders of any local, state, territory, provincial or national territory and of any political subdivision thereof, including laws and regulations pertaining to the promotion, sale and distribution of the Product.
2.7 Except for any limited license rights granted to YOU under this Agreement, this Agreement does not transfer any Intellectual Property of JEFFSESH to YOU and all rights, title and interest in such Intellectual Property, whether developed, licensed or owned by JEFFSESH shall remain with JEFFSESH or its licensor. YOU agree that YOU will not, directly or indirectly use or infringe on any Intellectual Property right of JEFFSESH, its agents or assigns. “Intellectual Property” as used in this Agreement shall mean copyrights, and all other rights in works of authorship recognized in any jurisdiction; trade secrets; trademarks, service marks, logos, domain names and product names whether registered or not; all applications, registrations and renewals with respect to any of the foregoing; moral rights; all other intellectual property rights and rights in trade secrets that may be recognized in any jurisdiction; and all rights to sue for and remedies against past, present and future infringements or misappropriations of any of the foregoing.
3.1 JEFFSESH hereby grants to YOU the non-exclusive right in the Territory to use JEFFSESH trademarks as described in Exhibit A attached hereto (the “Trademarks”) in the promotion, advertisement and sale of the Product in accordance with the terms of and for the duration of this Agreement. The Trademarks are trademarks, owned and used by JEFFSESH. JEFFSESH makes no representation or warranty as to the validity or enforceability of the Trademarks, nor as to whether the same infringe on any intellectual property rights of third parties in any territory.
3.2 YOU shall cause the appropriate designation “(TM)” or the registration symbol “(®)” to be placed adjacent to the Trademarks in connection with the use thereof and to indicate such additional information as JEFFSESH shall reasonably specify from time to time concerning the license rights under which YOU uses the Trademarks. YOU shall place the following notice on all printed or electronic materials on which the Trademarks appear: “JEFFSESH” and GENERAL JEFF’S trademarks of Crazy Concepts LLC DBA JeffSesh used under license” or such other notice as JEFFSESH may specify from time to time.
3.3 The Product shall be sold under JEFFSESH’s Trademarks and used only on all Product, containers and advertisements for the Product as may be directed or approved by JEFFSESH. All representations of such Trademarks which YOU intend to use shall first be submitted to JEFFSESH for approval. YOU agree that JEFFSESH retains full control of its quality standards regarding use of the Trademarks by YOU and YOU shall comply with such standards as may be directed by JEFFSESH from time to time.
3.4 After termination of this Agreement YOU shall immediately cease all use of JEFFSESH’s name and the Trademarks in any manner whatsoever.
3.5 YOU may not put any trademark of its own on any Product documentation material unless such use is clear that the trademark is YOUR own and is not that of any third party.
3.6 YOU shall not, without the prior written consent of JEFFSESH, alter or make any addition to the labeling or packaging of the Product displaying JEFFSESH’s Trademarks, and shall not alter, deface or remove in any manner any reference to such Trademarks, any reference to JEFFSESH or any other name attached or affixed to the Product or their packaging or labeling.
3.7 YOU agree that YOU shall not without the expressed written permission from Company use the Trademarks in whole or part in any domain name. Any such use with or without permission automatically vests title in such domain name to Company and YOU agree to assist Company with any assignment of such domain name to effectuate Company’s title and possession of such domain.
4. ORDER AND DELIVERY
4.1 During the term of this Agreement, JEFFSESH shall supply YOU with Product as ordered by YOU pursuant to this Agreement for YOUR distribution.
4.2 YOU shall place a binding order for Product, in the form agreed to by the parties by written or electronic purchase order (or by any other means agreed to by the parties) to JEFFSESH, which shall be placed at least thirty (30) days prior to the desired date or delivery. In no event shall YOU be obligated to purchase Product except by means of the foregoing binding purchase order.
4.3 JEFFSESH shall use all best efforts to deliver the Product ordered in YOUR purchase orders within thirty (30) days after receipt of any such order or such longer period as may be specified in such order.
4.4 The Product shall be delivered by JEFFSESH to YOU FOB or such other means requested and paid for by YOU. For the avoidance of doubt, YOU shall be responsible for obtaining any necessary import or export licenses or permissions in relation to the Product and any and all customs duties, VAT fees, clearance charges, taxes, brokers’ fees and delivery fees and other amounts which may be payable in connection with the import, export, purchase and delivery of the Product.
4.5 The price charged by JEFFSESH to YOU shall be set forth prior to YOUR order in the form of a written confirmation of the price. JEFFSESH makes no warranty or representation that the price paid by YOU on any given order shall be the price for any Product on any future order.
4.6 YOU shall provide payment to JEFFSESH for each respective order of Product in full in advance of the agreed shipping date.
4.7 If not otherwise agreed to between the parties, the payment shall be made in U.S. currency and made payable by international bank transfer to the account nominated by JEFFSESH from time to time. YOU shall not be entitled by reason of any set-off, counter-claim, abatement or other similar deduction to withhold payment of any amount due to JEFFSESH.
4.8 YOU shall provide to JEFFSESH within five (5) days of its receipt of any Product from an order written notice of rejection of any whole or part of that order. Such notice shall include the reasons for such rejection and any supporting proof thereof, including for example any samples and supporting documentation. In order to permit a timely and accurate investigation by JEFFSESH, YOU shall provide supporting evidence in its possession on which YOU has based such belief. JEFFSESH shall investigate all such rejections and shall within ten (10) days from notice and provide to YOU in writing its acceptance of such rejections as a “Non-Conforming Product” or its disagreement with such rejections. Within thirty (30) days of JEFFSESH’s determination that a Product is a Non-Conforming Product, JEFFSESH shall at its discretion either issue a cash credit via bank wire to YOU in an amount equal to the sum of purchase price of the Non-Conforming Product to YOU within thirty (30) calendar days or replace such Product, and issue a credit via a bank wire for any applicable freight charges invoiced to and paid by YOU for the shipment of such Non-Conforming Product.
4.9 YOU bear all risk of control and warehousing of Product once shipped FOB by JEFFSESH or JEFFSESH’s agent.
4.10 All product purchases are final. No returns are accepted and no refunds will be provided for any amount of purchase. By purchasing any product you understand and agree to our no refund policy
5. PRODUCT LIABILITY/LIMITATIONS OF LIABILITY
5.1 IN NO EVENT SHALL JEFFSESH HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES ARISING OUT OF THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCT WHATSOEVER (INCLUDING BUT NOT LIMITED TO ANY DAMAGES OR EXPENSES FOR ANY: LOSS OF USE; LOST PROFITS; LOST BUSINESS; LOST OPPORTUNITY, LOST DATA; COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; AND, BUSINESS INTERRUPTION) WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION OR SIMILAR CLAIM IN ANY JURISDICTION, AND WHETHER OR NOT JEFFSESH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR EXPENSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.1 Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney’s fees, which arise from any alleged breach of such indemnifying party’s representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party’s expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of this Agreement.
7.1 This Agreement shall not be assigned by either party without the prior written consent of the other party. Any assignment to which consent is given shall be binding upon, inure to the benefit of, and be enforceable by, the assignee and any successors in interest of the assignee. Notwithstanding the foregoing, YOU agree that JEFFSESH may assign this Agreement without YOUR consent upon the assignment of a majority of JEFFSESH’s assets or upon the sale of the Product-line in whole to a third party.
8. TERM AND TERMINATION
8.1 This Agreement shall come into effect on the Effective Date and shall continue in force until written notice is provided to YOU of JEFFSESH’s intent to terminate. The date of written notice shall be the date of termination. JEFFSESH is entitled to terminate this Agreement at any time, with or without notice, for any reason.
9. RIGHTS AND LIABILITIES AFTER TERMINATION
9.1 Termination of this Agreement shall not release either party from any obligation or liability incurred prior to the effective date of such Termination.
9.2 In the event of business transactions between the parties subsequent to the serving of notice of, or subsequent to the date of, Termination of this Agreement, such relations shall not constitute a renewal of the Agreement or a waiver of Termination, but all such transactions shall be governed by terms identical to the applicable provisions of this Agreement, unless the parties execute a new Agreement superseding this Agreement.
9.3 The termination of this Agreement (howsoever arising) shall not of itself give rise to any liability on the part of JEFFSESH to pay any compensation to YOU, including but not limited to, for loss of profits or goodwill.
10.1 Changes or additions to this Agreement shall not be valid unless made in writing and signed by both parties.
10.2 In case one or more provisions of this Agreement are invalid, the validity of the remaining provisions of the Agreement shall not be affected thereby.
10.3 This Agreement shall replace all other verbal or written Agreements (howsoever arising) between the parties concerning YOUR right and license to promote, sell and distribute the Product within the Territory.
10.4 This document constitutes the entire Agreement of the parties on the subject matter hereof and may not be modified or altered except by written document duly executed by both parties.
10.5 If either party is prevented from performing any of its obligations hereunder due to any cause which is beyond the non-performing party’s reasonable control, including but not limited to fire, explosion, flood or other acts of God; acts, regulations, or laws of any government made after the Effective Date of this Agreement; strike, lock-out or labor disturbances; or unavailability or shortage of power, labor or transportation; war, rebellion or civil disorder (collectively, “Force Majeure Event”), such non-performing party shall not be liable for breach of this Agreement with respect to such non-performance to the extent any such nonperformance is due to a Force Majeure Event.
10.6 This Agreement shall be governed and construed and interpreted in accordance with the laws of the United States and/or California state law, whichever is applicable, without giving effect to choice of laws, principles or the United Nations Convention of Contracts for the International Sale of Goods. Any dispute arising from or related to this Agreement except for injunctive relief, shall be submitted to the American Arbitration Association in Los Angeles, California for arbitration in Los Angeles, which shall be conducted with the arbitration rules in effect at the time of application for arbitration. The arbitral award shall be final and binding on both parties. The Arbitration shall be conducted with a panel of one arbitrator which arbitrator shall be mutually agreed upon by the parties or in the event the parties cannot agree on the arbitrator then the American Arbitration Association shall appoint one.
10.7 This Section 10.7 and Sections 3.4, 3.6, 4.4, 5, 6, 7, 9 and 10 shall survive any termination of this Agreement.