wholesale terms and conditions
Supplier hereby appoints Purchaser as a non-exclusive, authorized retailer of the Products for resale to end customers, subject to the terms of this Agreement. Purchaser is authorized to sell the Products: (i) at the Locations and only for so long as Purchaser maintains the Locations open to the public; and (ii) on the Purchaser’s online retail website provided that Purchaser also maintains at least one Location. Purchaser shall not sell or distribute the Products through any other retail channels (INCLUDING VIRTUAL CHANNELS SUCH AS AMAZON AND EBAY) or at any location that is not an approved Location without the prior written consent of Supplier. Should the Purchaser close or cease to operate at least one Location, then this Agreement shall automatically terminate without any further action by the Parties. Purchaser may not transfer, assign, or sublicense its status as an authorized retailer to any third party without Supplier’s prior written consent, which Supplier may withhold in its sole discretion.
A. Purchase via Website. Supplier agrees to supply the Products to Purchaser in accordance with the terms and conditions set forth in this Agreement. Purchaser shall purchase Products directly from Supplier through Supplier’s online website that will be made available for use by Purchaser (the “Website”). The pricing and order quantities for the Products will be included on the Website, which are subject to change from time to time in Supplier’s sole discretion. All sales are subject to Product availability and nothing in this Agreement shall be deemed a guarantee or requirement for Supplier to supply the Products to Purchaser or for Purchaser to purchase a minimum quantity of Products from Supplier.
B. Authorized Retailer Obligations.
i.Brand Representation;Reports. Purchaser agrees to represent, market, and sell the Products in a manner consistent with Supplier’s brand imaging and quality standards, as communicated by Supplier from time to time. Purchaser shall store and display the Products in a clean, safe, and professional retail environment, and shall not alter, repackage, or relabel the Products.
ii.Supplier Website Access. Purchaser will have access to the Website to purchase Products through a dedicated user login and password. Purchaser agrees to comply with the Website’s Terms of Service and applicable policies and shall not share user login information with third parties.
C. Minimum Advertised Price (“MAP”) Requirements.
i. MAP Price. Supplier will provide the MAP for each Product to Purchaser at the time of purchase, which is subject to change from time to time in Supplier’s sole discretion. Purchaser agrees not to advertise the Products at prices below the MAP, including but not limited to, all forms of public advertising such as marketing emails, social media content, print ads, online advertisements, catalogs, flyers, and public website listings.
ii.Prohibited Advertising Practices. Purchaser shall not publicly display prices below the MAP, use “click for price,” strikethroughs, coupon codes, or other methods that effectively advertise prices below the MAP.
iii.Permitted Sales Below MAP. Purchaser may sell Products below the MAP price in actual sales transactions or via private negotiations, provided that such prices are not publicly advertised.
D. Compliance; Breach. Upon Supplier’s request, Purchaser shall provide sales reports and other information related to the resale of the Products to ensure compliance with the requirements set forth in this Section 2. If Purchaser fails to comply with the terms set forth in this Section 2 as determined by Supplier in its reasonable discretion, such action shall constitute a Material Breach (as defined below) of this Agreement.
A. Term. This Agreement shall have a term of one (1) year beginning on the Effective Date (the “Term”). Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless: (i) either Party provides notice of non-renewal at least thirty (30) days prior to the effective date of such renewal, or (ii) this Agreement is otherwise terminated in accordance with its terms.
B. Without Cause Termination. Supplier may terminate this Agreement at any time, with or without cause, by delivering not less than thirty (30) days’ prior written notice thereof to Purchaser.
C. Breach of Contract. Upon a material breach ("Material Breach") of this Agreement by either Party that is not cured within thirty (30) days of the non-breaching Party's written notice thereof, the non-breaching Party, may, at its election (i) terminate this Agreement immediately by delivering written notice thereof to the breaching Party, and (ii) exercise any other right or remedy available in law or in equity.
D. Effect of Termination. Upon termination of this Agreement for any reason, Supplier shall ship all unfilled orders received as of the date of termination, and Purchaser shall pay in accordance with the terms of this Agreement any unpaid invoices for such orders. Purchaser shall not be entitled to return any Products to Supplier unless Supplier agrees in writing to such return of Products.
4. Nondisclosure of Confidential Information. Purchaser agrees that it shall not disclose Supplier’s Confidential Information to which it has access through use of the Website. For purposes of this Section, “Confidential Information” shall include pricing information, MAP, trade secrets, as well as proprietary information, whether or not the subject of any patent or patent application, owned by, generated by, or disclosed by, Supplier, and any other information designated as confidential or proprietary. Purchaser shall cause each of its officers, directors, employees, subcontractors and agents to restrict disclosure and use of such Confidential Information in like fashion, and shall be responsible for any wrongful disclosure or use by any of them. This Section and the obligations contained herein shall survive the expiration or earlier termination of this Agreement.
5. Use of Names. The Parties agree that they shall not use in any way in their promotional, informational or marketing activities or materials (i) the names, trademarks, logos, symbols or a description of the business or activities of the other Party without in each instance obtaining the prior written consent of the Party owning the rights thereto; or (ii) the award or the content of this Agreement without in each instance obtaining the prior written consent of the other Party.
A. Limited Liability. Neither Supplier nor its affiliates will be liable for any direct, indirect, consequential, incidental, special or enhanced damages arising out of the use or inability to use the Products. Supplier’s total liability to Purchaser under this Agreement shall not exceed the purchase price of the Products purchased by Purchaser.
B. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TENNESSEE WITHOUT GIVING EFFECT TO ANY OF THE CONFLICT OF LAW PRINCIPLES THEREOF THAT WOULD COMPEL THE APPLICATION OF THE SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION. ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN, AND EACH PARTY IRREVOCABLY SUBMITS TO THE SOLE AND EXCLUSIVE JURISDICTION OF, THE FEDERAL DISTRICT COURT LOCATED IN NASHVILLE, TENNESSEE. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO ASSERT LACK OF PERSONAL JURISDICTION AND ANY OBJECTION TO LAYING OF VENUE IN SUCH COURT OR THAT ANY ACTION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY AGREES THAT THE EXCLUSIVE CHOICE OF FORUM SET FORTH IN THIS SECTION DOES NOT PROHIBIT THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN THAT FORUM OR ANY OTHER APPROPRIATE FORUM.
C. No Assignment. This Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party not to be unreasonably withheld; provided, however, that Supplier may assign its rights and obligations to any affiliate of Supplier or upon a sale of all or substantially all of its assets, stock or interests.
D. Notices. Except as otherwise expressly provided herein, all notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed sufficient when mailed by United States mail, delivered by Federal Express or similar overnight delivery service, or delivered in person to the Party to which it is to be given, at the address of such Party set forth below, or to such other address as the Party shall have furnished in writing in accordance with the provisions of this Section:
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E. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, in the event that any provision of this Agreement becomes prohibited or invalid under applicable law, or is otherwise held unenforceable, then a court of competent jurisdiction is authorized to reform narrowly any such provision to render it enforceable.
F. No Waiver. No provision of this Agreement may be waived except by a writing signed by the Party against whom the waiver is sought to be enforced. Failure to enforce any provision of this Agreement does not constitute a waiver of future enforcement of that provision or of any other provision of this Agreement.
G. Relationship of the Parties. It is expressly understood and agreed by the Parties that nothing contained in this Agreement shall be construed to create a joint venture, partnership, association, agency, or like relationship between the Parties other than that of parties contracting at arm’s-length with respect to the subject matter hereof.
H. Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. Facsimile or scanned electronic signatures shall be acceptable as originals. Any individual signing this Agreement on behalf of an entity hereby represents and warrants in his or her individual capacity that he or she has full authority to do so on behalf of such entity.
I. Attorneys’ Fees. If either party brings any action to interpret or enforce this Agreement, or for damages for any alleged breach hereof, whether by arbitration or otherwise, each party shall be responsible for their respective attorneys’ fees and costs. This Section shall survive the expiration or termination of this Agreement.
J. Entire Agreement; Amendments. This Agreement and the Supplier’s Terms of Service shall constitute the entire agreement between Purchaser and Supplier. In the event of any inconsistency between this Agreement and the Supplier’s Terms of Service, the terms of this Agreement shall control. No other terms and conditions in any document, acceptance, or acknowledgment shall be effective or binding unless expressly agreed to in a signed writing. All modifications to this Agreement shall require an amendment, and no amendment to this Agreement shall be effective unless it is in writing and executed by both Purchaser and Supplier.