DISTRIBUTOR AGREEMENT - STANDARD TERMS AND CONDITIONS
1. Performance: A. Throughout the term, Distributor shall use its best efforts, and cause its employees, agents and contractors to use their best efforts, to promote business for THERASAGE Products and enhance the value and reputation of the Products and THERASAGE and its name and trademarks. Distributor shall be re¬sponsible to engage all required sales and other personnel, maintain facilities and make expenditures as may be necessary or appropriate for such performance, all at its own expense. B. Distributor shall be responsible for all employees, agents, contractors, sub-agents and any of their third party sub-agents to sign a Therasage Reseller Disclosure Agreement prior to any disclosure of Therasage Intellectual Property or proprietary sales information about its technology.
2. Orders: A. All orders by Distributor to THERASAGE for Products shall be made via THERASAGE’s internet website or through its email at email@example.com . THERASAGE may accept or reject orders for any act of Force Majore or Distributor credit issues. If THERASAGE fails to accept or reject an order within 30 days after receipt, the order will be deemed accepted. B. The terms of an order given and accepted in accordance with this Paragraph shall govern the sale of the Products covered by the order, to the extent that such terms are consistent with the terms of this Agreement. Distributor shall not include any terms, condi¬tions or other provisions in an order that are not approved by THERASAGE and any such terms added by Distributor to an order shall be void and of no effect. In the event of a conflict between the terms of this Agreement and the terms of any order, the terms of this Agreement shall prevail.
3. Shipment: THERASAGE shall ship all Products in accordance with the terms and at the times provided for accepted orders. Unless otherwise provided in an accepted order, shipment shall be by such method and such carrier as THERASAGE decides or by Distributor with THERASAGE approval. All prices are as announced to Distributor, with Distributor being responsible to pay all shipping costs. Risk of loss and responsibility of delivery shall pass to Distributor upon the placement of Products with a carrier for shipment. THERASAGE will in good faith endeavor to meet all shipment and delivery dates in accepted orders, but such dates are estimates only, and THERASAGE will not be responsible for any delays or other failure to meet shipping or delivery dates so long as it acts in good faith. In the event Distributor request that THERASAGE drop-ship the order, Distributor shall provide Therasage with an accurate name, shipping address, telephone number, and email address of the recipient. THERASAGE reserves the right to cancel any drop ship order or any portions thereof, without any liability, within two days of receipt of an order.
4. Prices and Payment: A. Prices for Products purchased from THERASAGE shall be as announced from time to time. Prices are subject to change by THERASAGE due to changes in costs, overhead costs, and other business factors. THERASAGE will within its sole discretion use its best efforts to maintain prices at a competitive level. If THERASAGE within its sole discretion determines that a price change is necessary, THERASAGE shall provide a thirty (30) day advance written notice of such change. Except as agreed by both parties of an accepted order or otherwise in writing, all prices are payable net in good funds prior to ship¬ment. B. Distributor may charge to its customers such prices for Products as Dis¬tributor deems appropriate in its reasonable discretion; provided that prices and terms of sale shall be reasonably appropriate for THERASAGE’S other business markets and reputation for high quality products. In the event Distributor advertises any price lower than MAP or other established floor, Distributor shall obtain advance permission from Therasage.
5. Product Warranty: A. THERASAGE warrants to Distributor that all Products sold to Distributor will, at the time of placement with a carrier for shipment, shall be free of defects in material and its workmanship will conform to THERASAGE’S published and generally distributed specifi¬cations for the Product. Distributor’s sole remedy about defective Product and THERASAGE’S sole liability under the warranty in this Paragraph shall be the Product’s standard and stated warranty. The warranty in this Paragraph does not apply to defects caused by the negligence or intentional misconduct of Distributor or anyone acting on Distributor’s behalf that damages Product in transit or defects occurring after risk of loss has passed to Distributor. Any product returned for a defect must be reported to THERASAGE for a “Return Authorization,” pursuant to THERASAGE’s customer care rules. B. Distributor may not extend any warranty, offer or extend, or purport to offer or extend any warranty or other covenants or agreements to its customers beyond the limited warranty of the product as established by THERASAGE, and THERASAGE shall not have any responsibility to any of Distributor’s customers for any matter, including the warranty set forth herein unless THERASAGE’S Return Authorization policies and other warranty conditions are met. THERASAGE’s usual limited warranty to consumers is one year. In the event Distributor has inventory that is at least eight months old, Distributor agrees to contact THERASAGE for a discussion of how to move the merchandise and how to protect the consumer warranty. C. Except as expressly provided herein, THERASAGE does not make and hereby disclaims all express or implied representations of the Product not represented in THERASAGE’S published and copyrighted literature including any implied warranties or guarantees of merchantability.
6. Advertising: Distributor shall provide to THERASAGE for approval all materials that Distri¬butor proposes to use for advertising of Products, including any materials that use any modification of THERASAGE’S distinct copyrights or trademarks. Such materials shall be provided to THERASAGE at least 14 days prior to the first intended use. THERASAGE shall approve or reject all such materials within seven days after receipt. The failure of THERASAGE to give notice of approval or rejection within such period shall be deemed its non-approval. Distributor shall not use in any manner any advertising material unless it is specifically approved by THERASAGE.
7. Trademarks and Copyrights: A. Distributor shall not at any time or in any manner engage in or permit any activity which may in any way adversely affect the rights, value or existence to trademarks or copyrights possessed by THERASAGE, or any registra-tions or applications for registration of such trademarks or copyrights. B. Distributor shall cause the designation ™,©, and ® to appear on all marks, names, phrases, or literature as indicated by THERASAGE to protect THERASAGE’S rights and interests therein. C. Distributor shall notify THERASAGE in writing of any known or suspected infringements of any patent or other rights in the Products or in any trademark, Copyright or other rights or property of THERASAGE, promptly after the same comes to Distributor’s attention. THERASAGE shall have the sole right to take any action or institute proceedings with respect to such infringement and shall proceed as it may, in its sole discretion, deem appropriate or desirable. Distributor shall cooperate in any action or proceeding by THERASAGE, in such manner as THERASAGE may request at THERASAGE’S and/or the Distributor’s expense as agreed by the parties, but shall not itself proceed in any manner without THERASAGE’S prior written consent.
8. Improvements: The Products and any and all FIR or NI technology concepts therein constitute either patented or other proprietary rights or information owned by or licensed to THERASAGE, in which Distributor does not have and will not obtain any rights or interests not expressly granted by this Agreement. In the event that Distributor or any of Distributor’s employees or any person working for or on behalf of Distributor in any capacity develops any improvements or additions to the Product or any invention or technology of any kind relating to the purposes which the Pro¬ducts or their technology can do or could serve, Distributor shall or shall cause the appropriate party to assign and trans¬fer all such matters and any patent, trademark or copyright rights and/or application to THERASAGE or its designee, as absolute owner, and Distributor shall have no rights of any kind with respect thereto unless through THERASAGE’S development, THERASAGE makes it available to the Distributor through this Agreement as mutually agreed by the parties.
9. Affiliates: Reference to THERASAGE herein shall collectively refer to the affiliates Therasage, L.L.C., a Florida limited liability company, Wellness Products of America, Inc., a Florida corporation, and TheraDesign, Inc., a Florida corporation.
10. Indemnification: Distributor shall indemnify, defend and hold harmless THERASAGE from and against any and all claims, actions, suits, damages and expenses of any kind (including reasonable attorneys’ fees) which THERASAGE may incur or for which it may become liable or required to pay by reason of Distributor’s advertising, marketing or sale and distribution of Products; the breach by Distributor of any provision of this Agreement; or the acts or omissions of Distributor or any of its servants, agents, employees or contractors in connection with the performance of this Agreement. Distributor shall, at its own expense, maintain in full force and effect through¬out the Term products liability or substantially similar insurance which names THERASAGE as an addi¬tional insured and provides for at least 30 days prior written notice to THERASAGE before cancellation, with such carriers, subject to such limits of liability and under such other terms, as THERASAGE may reasonably approve. THERASAGE shall include Distributor on its Product Liability insurance for the cost of the “Simple attachment fee” to be paid by the Distributor shall the Distributor elect to use THERASAGE’S liability insurance.
11. Limitation of Liability: THERASAGE’S sole and exclusive monetary liability to Distributor for any matter arising under or relating to this Agreement, whether in contract, tort (including negligence) or otherwise shall be general damages in an amount not greater than the amount paid by Distributor to THERASAGE for the Product or Products from which the damages arise. THERASAGE shall not be liable in any amount for personal injury or death to any person or loss of business or profits. IN NO EVENT SHALL THERASAGE BE LIABLE FOR ANY AMOUNT FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THERASAGE WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
12. Term: The term of this Agreement shall be one year beginning on the effective date hereof, and this Agreement shall thereafter renew for consecutive renewal terms of one year each, except that either party may terminate this Agreement, as of the end of the initial or any re¬newal term, by giving the other party at least 30 days prior written notice of termination. The initial and all renewal terms are collectively referred to as “the Term.”
13. Confidential Information: Therasage has developed proprietary technology and intellectual property for FIR and NI concepts, technology, and usage, as well as for use and improvement of properties that enhance their utility (all-inclusively referred to herein as the “Technology”). In order to provide services as needed, Distributor may have access to substantial confidential information (“Confidential Information”) and a knowledge pertaining to the Technology, processes, products, manufacturing, distribution, sales methods, business or marketing plans, research projects and other affairs of Therasage. In the mutual desire to protect the special and confidential nature of this Technology and its related Confidential Information, Distributor covenants and agrees to the restrictions of Paragraphs 13, 14, 15, and 16 of this Agreement.
14. Protection: Therasage has obtained and continually seeks additional intellectual property protection on all products. Notwithstanding that protection, Distributor will treat all of the Confidential Information outlined above as proprietary and confidential, and with at least such care as they would its own confidential information, and they will use all reasonable efforts to prevent any unauthorized use or disclosure of the Confidential Information. Distributor may only disclose Confidential Information to third parties (a) after obtaining prior written consent of Therasage to such disclosure, and (b) if such third party is first apprised of and bound by this Agreement. Distributor will insure that the Confidential Information will only be used in furthering the mutual relationship with Therasage and for no other purpose. All such Confidential Information is and will remain the property of Therasage. The Distributor agrees to execute, convey, and maintain a current Non-Compete/Non-Disclosure Agreement from itself and all of its dealers and marketing concerns in favor of THERASAGE.
15. Non-Disclosure: Distributor agrees not to use for its benefit nor disclose any such Confidential Information, without the express written approval of Therasage. Furthermore, Distributor also agrees not to divulge any test procedures, evaluations or findings resulting from any tests and/or evaluations without the prior written approval of Therasage.
16. Non-Compete: Distributor agrees not to compete with Therasage, using any device or product that would be considered relative to Therasage’s marketplace, product line, technology or intellectual property by any entity for a period of two (2) years after the date of the last act of agency/principal affected between the parties. This restriction shall include any apparatus or supplement which is the result of improvements, alterations, or changes to any of Therasage’s existing products.
17. Termination: A. THERASAGE may terminate this Agreement, effective immediately upon giving Distributor written notice of termination, if Distributor (i) fails to pay any amount to THERASAGE within seven days after such amount is due, or (ii)) files or has filed against it and not dismissed within 45 days any proceeding under any insolvency, receivership, bankruptcy or other law for the relief of debtors in the United States or in the Territory or makes an assignment for the benefit of its creditors or similar transfer or ceases or admits its intention to cease the operation of its business in the ordinary course. B. Either party may terminate this Agreement, effective 30 days after giving the other party prior written notice of termination if the other party breaches this Agreement in any material respect and fails to cure the breach within 30 days after written notice thereof from the non-breaching party.
18. THERASAGE Rules and Standards: Distributor shall be subject to and comply with all rules and standards of operation applied by THERASAGE to its distributors generally; provided that such rules or standards are given to Distributor in writing prior to or contemporaneously with the execution of this Agreement.
19. Applicable Law and Jurisdiction: A. United States federal and Florida state law shall govern the validity, construction, interpretation and effect of this Agreement, without regard to principles of choice or conflict of law, and in all matters governed by United States or Florida law this Agree¬ment shall not be subject to the United National Convention on Contracts for the International Sale of Goods or any similar international compact. B. Any action or proceeding to enforce the terms of this Agreement or other¬wise relating in any manner to this Agreement or performance hereunder may be brought only in the United States District Court for the Southern District of Florida or the Florida state court for Palm Beach County, Florida, or such substitute local courts that have exclusive jurisdiction hereof. All parties hereby irrevocably consent to the jurisdiction of such courts and waive any claim of lack of personal or subject matter jurisdiction.
20. Assignments: A. THERASAGE may assign this Agreement to a successor or that portion of the business which manufactures the Products for the Distributor, if the successor is financially responsible and assumes all rights and obligations of THERASAGE hereunder B. This Agreement is exclusive to the Distributor who may not assign or otherwise transfer all or any portion of this Agreement or rights granted hereunder, whether voluntarily, involuntarily, by operation of law or otherwise and any attempted assignment or transfer to the contrary shall be null and void and of no effect unless the surviving parties mutually agree.
21. Relationship: The relationship of the parties under this Agreement is one of in¬dependent contractors only. Nothing contained in this Agree ment shall be construed as con¬stituting the parties as partners or a joint venture or either party as an agent of the other. Without limiting the foregoing, neither Distributor nor THERASAGE shall have authority to bind or obligate or incur any indebt¬edness for each other and no such authority shall be implied.
22. Failure to Exercise Rights: The failure of either party to act or exercise any rights under this Agreement, upon the breach of any of the terms hereof or otherwise, shall not be con¬strued as a waiver of such breach or as preventing either party from thereafter enforcing strict compliance with any and all of the terms hereof.
23. Severability: If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be considered severable, and the remaining provisions of this Agreement shall continue in full force and effect and shall be valid and enforceable to the fullest extent permitted by law.
24. Headings: The paragraph headings of this Agreement are for convenience of reference only and do not form a part of the terms and conditions of this Agreement or give full notice thereof.
25. Entire Agreement: This Agreement contains the entire understanding between the parties and may not be amended or modified in any manner except by a written agreement duly executed by the party to be charged.
26. Notices: All notices or other communications of any kind required or per¬mitted under this Agreement shall be in writing and shall be sufficiently given if mailed by registered or certified mail of the United States or the Territory or given by any other reasonable means (including personal delivery or reputable express courier) to the party to receive notice at the following addresses or at such other place as either party may, by notice, direct:
If to THERASAGE: Melody Alvin, President 21000 Boca Rio Road, Suite A-21-C Boca Raton, Florida 33433
If to Distributor:All notices given by United States registered or certified mail shall be deemed as given on the delivery date shown on the return mail receipt. All notices given in any other manner shall be deemed as given when received.