THIS RESELLER AGREEMENT (“Agreement”) is legally binding as of the date of acceptance (the “Effective Date”), by you and between Retail Smart Group Pty Ltd, trading as Keeper Clean, a company with its principal place of business located at 737 Burwood Road, Hawthorn 3122 Victoria, Australia (the “Company” or “Keeper Clean”), and the company that has viewed and agreed to the following terms (“Reseller”) (each a “Party”, collectively, the “Parties”).
RECITALS
WHEREAS, Company desires that Reseller sell the Products (as hereinafter defined) to Customers (as hereinafter defined) in the Territory (as hereinafter defined); and
WHEREAS, Reseller desires to purchase Products for resale to Customers in the Territory on the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein and intending to be legally bound, the Parties hereby agree as follows.
SECTION 1. DEFINITIONS
1.1 “Customers” shall mean individuals or entities who are purchasing the Products from a Keeper Clean Authorised Reseller (as hereinafter defined) for their end-use and not for resale purposes.
1.2 “Keeper Clean Authorised Reseller” shall mean individuals or entities who are approved by Company to purchase the Products from either Company or a Keeper Clean Authorised Distributor to be resold through an online website or third-party marketplace (such as Amazon or eBay) pursuant to the terms set forth in to this Agreement.
1.3 “Products” shall mean Company’s E-Commerce Products, as further defined in Exhibit A to this Agreement.
1.4 “Territory” shall mean Australia.
1.5 “Trademark” shall mean all trademarks, including but not limited to the mark Keeper Clean, incorporating words and/or designs, that Company owns or licenses (with the right to sublicense), and are used on or in connection with the Products in the Territory, including registered trademarks, pending trademark applications, and common law marks.
SECTION 2. APPOINTMENT AS RESELLER
2.1 Grant. Company hereby grants to Reseller the non-exclusive and non- transferable right to promote and sell the Products only to Customers within the Territory for the Term (as hereinafter defined). Company reserves the right, in its sole and absolute discretion, to appoint additional resellers in any Territory, and to sell the Products directly or indirectly to any person or entity by any distribution method.
2.2 Limitations on Appointment. Reseller expressly acknowledges and agrees that it shall not, during the Term, promote, distribute and/or sell the Products, or any of them, to any Customer in any place other than in the Territory. The Parties acknowledge and agree that the appointment of Reseller hereunder is non-exclusive, and that no provision contained in this Agreement shall, during the Term, constrain Company in any manner from commercialising the Products, or any of them, to or on behalf of any third party. Notwithstanding any other provision contained in this Agreement, Reseller may not market or solicit orders for the Products, or any of them, except in accordance with this Agreement, and Reseller may not market, supply or sell the Products, or any of them, or procure the marketing, supply or resale of the Products, or any of them, except pursuant to the provisions of this Agreement.
2.3 Nature of Relationship. The relationship established between the Company and Reseller by this Agreement is that of supplier and reseller. Reseller is an independent contractor under this Agreement and shall not have the right to assume or create any obligation of any kind, either express or implied, on behalf of Company, except as expressly provided for in this Agreement. Nothing in this Agreement shall be deemed to establish or otherwise create a relationship of principal and agent, employer and employee, franchisor and franchisee or otherwise between Company and Reseller.
2.4 Reseller Obligations.
2.4.1 Reseller agrees that it shall not sell the Products online without obtaining Company approval, as required by accepting the online terms and conditions of this Agreement and pursuant to any additional terms and procedures set forth in Exhibit A to this Agreement.
2.4.2 Reseller agrees that it shall include the Universal Product Code (“UPC”) and the product Stock-Keeping Unit (“SKU”) for each product listed on its website.
2.4.2 Reseller shall use its commercial best efforts to promote the sale of the Products within the Territory in a diligent manner, consistent with good business practices and will represent the Keeper Clean products in a professional manner with proper Keeper Clean logos and marketing images to help support the Keeper Clean brand. Keeper Clean will provide proper support, images and logos to assist.
2.4.3. Reseller agrees to also support, sell and promote ‘factory Authorised Keeper Clean replacement parts’ on their websites. Reseller may not promote the Keeper Clean E-Commerce product line of whole goods or parts to a consumer, and then substitute any other ‘generic’ or non-Keeper Clean product in its place. Reseller further agrees not to sell replications of any Keeper Clean product.
2.4.4 Reseller agrees not to export or sell, directly or indirectly, any of the Products to (i) any individual or entity who is not a Customer; or (ii) any individual or entity outside of the Territory, unless such sale is specifically Authorised in writing by Company. Reseller further agrees not to purchase, directly or indirectly, any of the Products, from any individual or entity other than Company or a Keeper Clean Authorised Distributor in the Territory, unless such purchase is specifically Authorised in writing by Company. Reseller agrees that violation of this Section 2.4.4 will be considered a material breach of this Agreement.
2.4.5 Reseller shall comply with Keeper Clean’s policies and procedures.
2.4.6 Reseller shall comply with all applicable laws and regulations in performing its obligations under this Agreement.
2.4.7 Reseller agrees to provide all documentation requested by Keeper Clean for approval of Online Authorised Reseller status.
2.4.8 Reseller shall not modify, alter, damage or change the Products or markings in any way, including but not limited to the removal, mutilation or modification of any lot numbers, serial numbers or dating on the Products.
2.4.9 Reseller agrees that it will at all times comply with the laws and regulations in the Territory applicable to the marketing, sale and handling of the Products.
2.4.10 Reseller shall purchase the Products for resale in the Territory for Reseller’s own account and not as agent for Company. Reseller shall be the vendor of record for all accounts and shall be directly responsible to its Customers. Reseller shall manage its own inventory and forecasts.
2.4.11 Reseller shall promptly notify Company in writing of any claims which it receives or becomes aware of regarding the Products, Company or Reseller itself. Reseller shall cooperate with Company in the defense or handling of any above described claims.
2.4.12 Reseller assumes (i) all market risk relating to the Products (being the risk that the Products do not sell in the market of the Territory) and (ii) all risk relating to inventory, including risk related to Product quality, freight damage, order processing errors, mistakes in the communication of Product specifications, customer credit, customer liability, or other and related matters unless otherwise specifically set forth herein.
2.4.13 Reseller shall facilitate communications by and between the Company and customers or prospective customers regarding Product inquiries, orders, delivery schedules, quality, service, administrative, or other matters. Reseller must have staff to handle customer service questions and initial technical service screening and assistance to those consumers whom they sold the Keeper Clean Products.
2.4.14 Reseller agrees to make only such representations as to quality, capacity, performance, and related matters with respect to the Products as shall periodically be specified in writing by Company and shall provide no warranties, either express or implied except for Company’s standard warranties.
2.4.15 Reseller shall cooperate with Company in any applicable government investigation or requirements relating to the Products.
2.4.16 Reseller shall furnish to Company certain “sell-through” sales, market and transaction data to assist Keeper Clean in gauging future support of online products and trends upon request and in a format acceptable to Keeper Clean. This includes, but is not limited units/dollars of Keeper Clean products that are sold to end users, as well as, levels of stocking inventory on hand as it pertains to Reseller’s sale of Keeper Clean Products.
2.5 Company Obligations.
2.5.1 Company shall place at the disposal of Reseller Product labeling, and such other information as may be reasonably required by Reseller for the promotion, sale and shipment of the Products and shall provide at no charge to Reseller technical information, and such instructions as may be appropriate for the promotion, sale, shipment, and use of the Products. Company shall also provide Reseller with reasonable sales and service assistance for the Products.
2.5.2 The warranty with respect to the Products shall be as set forth in Company’s standard warranties with respect to the Product applicable at the time of sale, which standard terms may be changed at any time by Company upon notice to Reseller. Any claims under such warranties must be made pursuant to the warranty terms.
SECTION 3. GRANT OF RIGHT TO USE TRADEMARKS
3.1 Grant by Company. Company grants to Reseller the non-exclusive right to use in the Territory, and Reseller shall use only, the Trademarks with respect to performance of its obligations hereunder. All rights and goodwill arising out of Reseller’s use of the Trademarks shall be owned by and inure to the benefit of Company or its licensor, as the case may be. Reseller shall at all times maintain the quality standards for the Trademarks, as set by Company or its licensor from time to time, which shall at no time fall below the highest quality standard in Company’s industry. All use of the Trademarks shall conform to Company’s branding standards, as provided by Company to Reseller from time to time. Company reserves the right in its sole discretion to object to any use or proposed use of the Trademarks by Distributor. Should Company object to any use or proposed use of the Trademarks by Reseller, Reseller shall immediately cease use of such Trademarks or (if such Trademarks have not been used yet), Reseller shall not commence use of such Trademarks . Reseller agrees that violation of this Section 3.1 will be considered a material breach of this Agreement.
3.2 No Further Transfer. Reseller shall not assign, sublicense, make available, or otherwise transfer or disclose any right to use, develop, or otherwise enjoy any of the Trademarks without the express written consent of Company.
SECTION 4. WARRANTIES AND REPRESENTATIONS
DISCLAIMER. EXCEPT AS PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAWS, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR APPLICABILITY FOR A PARTICULAR PURPOSE, REGARDING THE PRODUCTS AND ANY DOCUMENTATION PROVIDED BY COMPANY.
SECTION 5. INDEMNIFICATION
Reseller shall fully defend, indemnify and hold harmless Company and its subsidiaries, affiliates, officers, directors, employees and agents for and against any and all allegations, claims, actions, judgments, settlements, damages, losses, liabilities, costs and expenses (including attorneys’ and experts’ fees and expenses) directly or indirectly arising out of or in connection with (i) any breach or alleged breach by Reseller of its obligations, representations or warranties under this Agreement, and (ii) any act or omission by Reseller or its directors, officers, employees or agents arising out of or related to this Agreement or the sale of the Products by Reseller.
SECTION 6. CONFIDENTIALITY
6.1 Unless expressly permitted by this Agreement, Reseller agrees that it will hold in strict confidence and not disclose to any person or entity, without the express prior written authorisation of Company, any information received by Reseller from Company in connection with the transactions contemplated by this Agreement (“Confidential Information”). Confidential Information, includes but is not limited to, (i) pricing information, sources of supply, licensing arrangements, agreements with sales representatives, financial statements or other financial information or business data (historical or prospective) of or relating to Company that has not been publicly disclosed by Company; (ii) information that Company maintains in confidence and that has actual or potential economic value to Company because it is not generally known to others and is not readily ascertainable by them, including, without limitation, information relating to Company’s marketing and business plans and strategies and information concerning the Products or any current or future projects or business decisions of Company; (iii) information entrusted to Company in confidence by third parties; and (iv) information otherwise designated by Company as confidential information. The foregoing restrictions shall not apply to information that is (a) known or becomes known to the public in general (other than as a result of a breach of this Section), or (b) is or has been made known or disclosed to Reseller by a third party without a breach of any obligation of confidentiality such third party may have to Company. In the event of an unauthorised disclosure, Authorised Reseller agrees to immediately notify Keeper Clean of the possession, use, knowledge, disclosure, or loss of such other Party’s Confidential Information, and use all commercially reasonable efforts to prevent further possession, use, knowledge, disclosure, or loss of Confidential Information.
6.2 Notwithstanding Section 8.1 above, Reseller shall be permitted to disclose Confidential Information (i) to its attorneys and accountants, provided that such person is subject to a covenant or other duty to maintain confidentiality, or (i) to the extent required pursuant to a subpoena or other legal process; provided, however, that where permitted by applicable law, Reseller shall notify Company in writing of the receipt of such subpoena or other legal process requiring such disclosure immediately after receipt thereof and Company shall have reasonable opportunity to quash such subpoena or other legal process prior to any disclosure by Reseller.
SECTION 7. TERM AND TERMINATION
7.1 Initial Term and Renewal Term. This Agreement shall commence on the Effective Date and shall continue for one year (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive terms of one (1) year each (each a “Renewal Term,” and collectively with the Initial Term, the “Term”), subject to the right of either Party to give the other written notice at least sixty (6/0) days prior to the end of the Initial Term or Renewal Term then in effect, as the case may be, that it does not intend to renew this Agreement, in which case this Agreement shall terminate at the expiration of the Term then in effect.
7.2 Termination.
7.2.1 Company may terminate a Reseller’s status as a Keeper Clean Authorised Reseller immediately at any time, with or without cause, upon written notice to Reseller. Company will notify Keeper Clean Authorised Distributors of Reseller’s status or termination as a Keeper Clean Authorised Reseller. Upon receipt of a notice terminating a Reseller’s status as a Keeper Clean Authorised Reseller, Reseller must immediately stop using any icon, image or graphic display that signifies that Reseller is a Keeper Clean Authorised Reseller and remove all references to Company and the Products from Reseller’s website(s).
7.2.2 Sales of the E-Commerce Products through an unauthorised URL or third party website may result in the termination of this Agreement and Reseller’s business relationship with Company. No incentives agreed to by the Parties will be paid in connection with sales of the E-Commerce Products through an unauthorised URL or third party website.
7.3 Rights and Duties on Termination.
7.3.1 Upon the termination of this Agreement, (i) except as set forth in this Section 7.3.1, Reseller shall have no further right to purchase or sell the Products, (ii) all open Orders shall be deemed cancelled, and (iii) Reseller shall pay all sums accrued that are then due under this Agreement, and all sums that would have been due in the future had the Agreement extended to the end of the then current Initial Term or Renewal Term shall automatically accelerate and become due and owing. In the event of any termination or upon expiration of this Agreement, Company, in its sole and absolute discretion, may elect to either (a) require Reseller to immediately return any unsold Products to Company or a Keeper Clean Authorised Distributor; or (b) permit Reseller to dispose of first-quality Product on hand as of the date of a termination at prevailing market prices for a period of six (6) months (the “Deactivation Period”), provided that Reseller continues to comply with the terms of this Agreement during the Deactivation Period. Nothing contained herein shall be deemed to permit the sale of any improperly labeled, improperly stored, or otherwise defective Product during the Deactivation Period.
7.3.2 In addition, upon the termination of this Agreement, Reseller shall (i) return all Confidential Information and promotional material or samples to Company and (ii) discontinue all use of all Trademarks and shall have no further license to any Trademarks.
7.3.3 Notwithstanding anything to the contrary herein, Sections 1, 5, 6 and 7 through 9 shall survive the termination of this Agreement.
SECTION 8. LIMITATION OF LIABILITY
Other than arising out of or related to a Party’s indemnification or confidentiality obligations under this Agreement, neither Party shall be liable to the other under this Agreement for special, consequential or punitive damages of any kind, regardless of the action.
SECTION 9. MISCELLANEOUS
9.1 Notices. All notices, requests, demands and other communications provided for by this Agreement shall be in writing or electronic communications. When received if sent by e-mail (provided that a no delivery receipt is received by the sending party within twenty four (24) hours), addressed to the address of the parties who have accepted this agreement hereto or to such changed address as such Party may have fixed by notice.
9.2 Binding Effect, Assignment, etc. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their permitted assigns and successors-in-interest. Reseller may not assign any right, or delegate any obligation hereunder, by operation of law or otherwise, without the express prior written consent of Company, and any such purported assignment shall be null and void.
9.3 Amendment/Waiver. No change, modification or amendment of this Agreement shall be valid or binding on the Parties unless such change or modification shall be in writing signed by he Party or Parties against whom the same is sought to be enforced. The failure by either Party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way affect the right to require such performance or compliance at any time thereafter. The waiver by either Party of a breach of any provision hereof shall not be taken or held to be a waiver of any preceding or succeeding breach of such provision or as a waiver of the provision itself. No waiver of any kind shall be effective or binding, unless it is in writing and is signed by the Party against which such waiver is sought to be enforced.
9.4 Entire Agreement. This Agreement, including the Exhibits hereto and the policies, terms and conditions referenced herein (which are collectively made a part of this Agreement), sets forth the entire agreement and understanding between the Parties and merges and supersedes all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof, and no Party shall be bound by any condition, definition, warranty or representation other than as expressly provided for in this Agreement or as may be on a date on or subsequent to the date hereof duly set forth in writing signed by each Party which is to be bound thereby.
9.5 Severability. If any provision of this Agreement shall be found by any panel or court to be invalid or unenforceable, the Parties hereby waive such provision to the extent that it is found to be invalid or unenforceable. Such provision shall, to the extent allowable by law, be modified by such panel or court so that it becomes enforceable and, as modified, shall be enforced as any other provision hereof, all the other provisions continuing in full force and effect.
Governing Law; Dispute Resolution; Forum
9.6.1 This Agreement will be governed by and construed in accordance with the laws of the State of Victoria without giving effect to any choice or conflict of law provision.
9.6.2 Except with respect to rights to injunctive relief, each Party shall be required, by written notice to the other Party, to have such dispute referred to the vice presidents of the respective business units of each Party, for attempted resolution by good faith negotiations within thirty (30) days after such notice is received.
9.6.3 The Parties agree that any and all disputes, claims, or controversies, whether in contract, tort, preexisting, present or future, statutory, common law, intentional tort, or equitable claims (“Claim”) arising under or relating to this Agreement asserted by or against the other Party, its agents, employees, successors, assigns, affiliates, suppliers (including the manufacturers of the products purchased in connection with this Agreement), or independent contractors, arising under or relating to this Agreement or any related purchase will be exclusively and finally resolved by binding arbitration according to the applicable rules of arbitration. THE PARTIES HEREBY CHOOSE ARBITRATION, RATHER THAN LITIGATION OR SOME OTHER MEANS OF DISPUTE RESOLUTION, TO ADDRESS ANY CLAIM WITH THE EXPECTATION THAT THIS RESOLUTION PROCESS MAY BE MORE COST EFFECTIVE AND EXPEDIENT THAN LITIGATION. BY ENTERING INTO THIS AGREEMENT, EACH PARTY AGREES TO GIVE UP THE RIGHT TO HAVE ANY DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY AND, INSTEAD, ACCEPT THE USE OF ARBITRATION.
9.7 Further Assurances. Each Party hereby covenants and agrees that it shall execute and deliver such other documents as may be required to implement any of the provisions of this Agreement.
9.8 Captions. Titles or captions of articles and sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
9.9 Legal Counsel. Each Party has had this Agreement reviewed by the counsel of its choosing, or had the opportunity to do so. This Agreement shall be deemed drafted jointly by the Parties such that it shall not be interpreted or construed in favor of one Party over the other.
9.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together constitute one agreement.
Delivery of an executed counterpart of this Agreement by facsimile or transmitted electronically in legible form, including without limitation in a tagged image format file (TIFF) or portable document format (PDF), shall be equally effective as delivery of a manually executed counterpart of this Agreement.
By advertising or purchasing any items from Company, you have agreed in full to this Agreement.
