This Reseller Agreement (“Agreement”) is made and entered into by and between the company or individual signing this Agreement (“Company”), and Honest Glass, Inc., a Colorado corporation having its principal office at 728 Market St, 301, Philadelphia, PA 19106 (“Reseller”).Please review this Agreement carefully and keep a copy for your records. The person signing on behalf of Company represents and warrants that its electronic signature is authorized by Company. Such individual also agrees that clicking on the “I agree” box or using Reseller’s website constitutes an electronic signature and that by doing so all terms of this Agreement will be binding on Company. Company acknowledges that it is able to print a complete and legible copy of this Agreement, it was capable of opening, reading, printing, downloading and/or saving this Agreement, and it had reasonable opportunity to open this Agreement, read it, and sign and agree to it by selecting “I agree” or by using Reseller’s website. If Company does not agree to the terms and conditions of this Agreement, Company should not select “I agree” or use Reseller’s website. The effective date of this Agreement is the date Company clicks “I agree” or uses Reseller’s website.
The parties agree as follows:
1. Appointment of Reseller
1.1. Authorization and Appointment. Company authorizes and appoints Reseller, and Reseller accepts the appointment, as a non-exclusive reseller to market, distribute, offer to sell, and sell to Reseller’s customers (“Customers”) Company’sproducts (the “Products”). Reseller may sell the Products to Customers directly through its website or through its sub-resellers or other distribution channels. This Agreement is not limited by any geographic area.
1.2. No Exclusivity. This Agreement is non-exclusive. Company may sell its Products through any other reseller, including those who compete with Reseller; and Reseller may sell any other products, including those similar to or competitive with Company’s Products.
1.4. Company Material. Company grants Resellerthe right to use and display Company’s names, logos trademarks, Product descriptions, text, images, and other material associated with Company and the Products (“Company Material”) in connection with the Products and in performance of Reseller’s duties under this Agreement, including on Reseller’s website and on Reseller’s marketing and promotional material. Reseller’s use of Company Material shall comply with Company’ trademark usage policies communicated to Reseller from time to time.
2.1. Purchase Orders. Reseller will submit orders for Products to Company (“Purchase Orders”) by email or such other means as the parties shall mutually decide. Purchase Orders may include any or all of the following information, as appropriate:
(a) item descriptions or model numbers;
(b) quantity requested;
(c) pricing and/or payment information; and/or
(d) shipping and delivery information (including delivery address).
2.2. Acceptance. Company shall, within one (1) business day of receipt of the Purchase Order, communicate by email confirmation of receipt of the Purchase Order and an estimated shipping date. Unless a later date is specified in the Purchase Order, Company shall ship the Products within seven (7) days of receipt of the Purchase Order.
2.3. Delivery. Company shall deliver the Products in accordance to the instructions provided in the Purchase Order. Delivery may be to Reseller, to its Customer, or to another address, all as provided in the Purchase Order. Unless instructed otherwise in the Purchase Order, Company shall be responsible for all delivery costs, including without limitation import and export fees, packing, shipping, freight, and insurance charges. Title, risk of loss, theft, and damage shall pass to Reseller upon delivery of Products to the address set forth in the applicable Purchase Order. Company shall make commercially reasonable efforts to meet the estimated shipping date specified in the Purchase Order. In case Company cannot meet the estimated shippingdate, Company shall promptly notify Reseller and discuss in good faith on the appropriate delivery date.
2.4. Returns and Cancelations. Reseller has the right to cancel any Purchase Order without any liability with written notice to Company at any time prior to delivery of the Product. Reseller may return any Product to Company for any reason or no reason—or permit a Customer to return the Product to Company—for a full refund by notifying Company within thirty (30) days of receipt of the Product by Reseller or the Customer (as the case may be). Cost of shipment for returned Products and risk of loss, theft, and damage shall be borne by Reseller, unless the return is for a defective Product, in which case the cost of shipment for returned Products and risk of loss, theft, and damage shall be borne by Company. Company will issue a refund for the returned Product within five (5) days after receiving the Product back. Reseller (or Customer) may request a replacement or exchange for a returned Product instead of a refund, in which case Company will ship such exchange or replacement within five (5) days after receiving the Product back. Cost of shipment and title, risk of loss, theft, and damage of the replacement Product shall pass to Reseller upon delivery of such Product.
2.5. Warranty Returns. Each Product sold under this Agreement is warranted against defects for a period of one (1) year following receipt of the Product by Reseller or the Customer (as the case may be). Company will, at its option, repair, replace, or provide a refund for any Product returned pursuant to this warranty. The cost of shipment for Products returned pursuant to this warranty, and risk of loss, theft, and damage shall be borne by Company.
2.6. Support. Reseller shall be responsible for all first level of support for Reseller’s Customers (e.g., initial response, problem identification and problem resolution) and shall include all relevant contact information on Reseller’s website. Company agrees to provide higher-level support to Reseller to assist Reseller with its support obligations to the Customer, or, upon Reseller’s request, Company will provide such support directly to the Customer.
3. Prices and Payment Terms
3.1. Prices to Reseller. Company will inform Reseller of the suggested retail price of each Product. The price payable by Reseller for each Product shall be the suggested retail price, less a ten percent (10%) discount. Company may modify the suggested retail price of a Product from time to time with thirty (30) days’ written notice to Reseller. Notwithstanding the foregoing, Resellermay determine its own resale prices to its Customers.
3.2. Taxes. The suggested retail prices are exclusive of taxes, including sales tax, which are Reseller’s responsibility.However, upon showing Company a tax-exempt certificate, Company shall not charge Reseller sales tax for the Products.
3.3. Payment Terms. Reseller shall pay Company for Products ordered pursuant to a Purchase Order within two (2) business daysafter Company ships the Products to the address provided on such Purchase Order and provides a shipping confirmation number to Reseller. Payment shall be made by ACH transfer or such other payment method as the parties may mutually agree. Company authorizes Reseller to make any ACH credits or debits necessary for Reseller to pay Company for Products, or to process refunds or any other amounts payable from Company to Reseller under this Agreement.
3.4. Export and Import Controls. Each party shall be responsible for: (a) complying with all export restrictions, laws and regulations; (b) securing all permits and other licenses necessary to carry out its obligations under this Agreement; and (c) paying all tariffs, duties and the like, associated with its export of any goods or the use of any information in connection with the Products.
4. Confidential Information
4.1. Protection of Information. Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. The term “Confidential Information” includes all non-public, business-related information, written or oral, disclosed or made available to either party, through any means of communication. For clarity, Reseller will have sole ownership and control of all Customer, sales, and other data collected through Reseller’s website or in connection with Reseller’s sale of the Products to its Customers, and all such information shall be Confidential Information of Reseller.
4.2. Non-Disclosure and Non-Use. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.
5. Term and Termination
5.1. Term. The initial term of this Agreement will begin on the Effective Date for a term of one (1) year, automatically renewing for successive one (1)-year periods, unless either party gives written notice to the other party of its intent not to renew at least thirty (30) days before the end of any initial or renewal term.
5.2. Termination. Either party may terminate this Agreement for convenience at any time on thirty (30) days’ written notice. In addition, Reseller may terminate this Agreement at any time with or without notice if Reseller determines in its sole discretion that this Agreement or its performance hereunder could result in legal or business liability to Reseller or any third party.
5.3. Effect of Termination. Upon termination or expiration of this Agreement, Reseller shall cease soliciting orders for Products and shall cease using Company Materials, and each party shall return or permanently destroy the other party’s Confidential Information. However, termination or expiration shall not affect any liabilities or obligations which accrued prior to the effective date of termination. The termination of this Agreement shall not release Company from warranty and return obligations under Section 2.4 and 2.5, or from support obligations under Section 2.6 for Products already sold. Sections 6, 7, and this Section 5.3 shall survive termination or expiration of this Agreement. Section 4 and the obligations with respect to each party’s Confidential Information shall survive for three (3) years following termination or expiration of this Agreement.
6.1. Indemnification. COMPANY AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS RESELLER AND ITS DIRECTORS, MANAGERS, EMPLOYEES, AND REPRESENTATIVES, FROM AND AGAINST ANY DAMAGES, LOSSES, OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES), AND ANY CLAIMS OR ACTIONS ALLEGING SUCH DAMAGES, LOSSES, OR COSTS, ARISING FROM OR RELATING TO THE PRODUCTS OR COMPANY MATERIALS, OR RESELLER’S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT.
6.2. Limitations on Liability. IN NO EVENT WILL RESELLER BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES WHATSOEVER ARISING FROM OR RELATING TO THE SALE OF THE PRODUCTS, RESELLER’S WEBSITE, OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RESELLER’S LIABILITY EXCEED THE MONIES PAID BY RESELLER TO COMPANY UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
7. General Provisions
7.1. Dispute Resolution. Any dispute or claim against Reseller relating in any way or arising from this Agreement or the Products will be resolved by binding arbitration, rather than in court, unless the parties expressly agree otherwise in writing.There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter by certified mail or some other means of mailing that affords proof of receipt and delivery requesting arbitration and describing your claim to HONEST GLASS INC. 728 Market Street, Unit 301, Philadelphia, PA 19106 United States. If Honest Glass seeks to begin an arbitration proceeding, it will send a letter to You at your address of record by certified mail or some other similar means that provides proof of receipt and delivery. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Consumer Arbitration Rules. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, except that the initial filing fee must be paid by the claimant. Likewise, Honest Glass will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitration shall be conducted by telephone, based on written submissions, or in a mutually agreed location.
Each party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial. However, either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
7.2. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules.
7.3. Entire Agreement; Amendments; Waiver. This Agreement, including referenced documents and attachments,constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
7.4. Compliance of Law. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.
7.5. Notice. Any notices required or permitted shall be given to the appropriate Party at the address specified above, or at such other address as the Party shall specify in writing, and shall be effective upon actual receipt.
7.6. Assignment. The parties may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise without prior written consent of the party, which shall not be unreasonably withheld.
7.7. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
7.8. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
7.9. Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In construing or interpreting this Agreement, the word “or” shall not be construed as exclusive, and the word “including” shall not be limiting. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
7.10. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.
7.11. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. The signatures to this Agreement may be evidenced by facsimile copies, including in electronic documents such as PDFs, and any such facsimile or electronic copy shall be sufficient to evidence the signature of such party as if it were an original signature.