ADDITIONAL TERMS AND CONDITIONS


1.     Definitions

 

Products. The term “Product” or “Products” shall mean any and all goods, products, articles, wares, or commodities either sold, manufactured, distributed, warehoused, or otherwise offered by Company, whether currently offered or in existence, having been previously offered or in existence, or being offered or existence in the future.

Territory. The term “Territory” shall mean anywhere in the world (regardless of where any seller, distributor, manufacturer, wholesaler, retailer, purchaser, or end-user is located).

Sales Channel(s). The term “Sales Channels” shall mean any website, domain, application, sales channel, or other platform that is owned, operated, or otherwise offered by Amazon.com, Inc. or any of its subsidiaries or affiliates (including but not limited to Amazon.com).

2.     Terms on Auto-Renewal. If the term is renewed for any renewal term (or terms), the terms and conditions of the “Exclusive Distribution Agreement” during each such renewal term shall be the same as the terms in effect immediately before such renewal. If either party provides timely notice of nonrenewal of the “Exclusive Distribution Agreement,” it shall terminate on the expiration of the then-current term.

 

3.     Termination of Agreement with Third Parties. Company agrees to terminate immediately upon execution of the “Exclusive Distribution Agreement” any distribution agreement, sales agreement, or other similar agreements it has or may have with any other third party seller to give effect to the terms of the “Exclusive Distribution Agreement” and leave Distributor as the sole and exclusive seller of the Products on the Sales Channels. Company warrants that nothing in the “Exclusive Distribution Agreement” or these “Additional Terms and Conditions” violates any contract that Company holds with any third party. Company further agrees to execute any other documents necessary to give effect to the terms of the “Exclusive Distribution Agreement.”

 

4.     Intellectual Property. The Company shall be the exclusive owner of all patent or patent rights, trademarks, trade names, trade dress, and other trade designations, copyrights, and other industrial or intellectual property rights relating in any way to the Products or the Company and all goodwill developed in connection with the same (Intellectual Property). Distributor may use the Intellectual Property in connection with the sale of the Products and to otherwise execute its obligations under the terms of the “Exclusive Distribution Agreement.” If Distributor develops or acquires, directly or indirectly, any right in any of the Intellectual Property, it will immediately assign to the Company all of its rights in it.

 

5.     Technical or Marketing Assistance. The Company shall (a) provide written or other training materials to Distributor and its subdistributors regarding the Products and marketing and sales of the Products; (b) keep Distributor and its subdistributors advised of any changes in specifications or updates of the Products; (c) provide Distributor and its subdistributors with literature, brochures, and other written information concerning the Products to assist Distributor in the sales and marketing of the Products; and (d) apprise Distributor of any Product advertising campaigns and press releases.

 

6.     Termination. Either party may terminate the “Exclusive Distribution Agreement” at any time due to a material breach of its terms after giving the breaching party written notice and 30 days to cure and a failure by the breaching party to cure. Without limiting the generality of the preceding sentence, a material breach shall include, but is not limited to, the following: (a) failure to make payments or deliver Products when due; (b) a party’s insolvency, voluntary filing of a petition for bankruptcy or for reorganization, failure to have dismissed within 60 days of filing any involuntary petition in bankruptcy or reorganization, assignment for the benefit of creditors, or obtaining the appointment of a trustee or receiver; (c) a judgment rendered against a party that remains unsatisfied and subject to execution for 30 days or more; (d) the charging of any party, or any party’s principal owners or managers, with any crime or violation that, in the opinion of the non-breaching party, may adversely affect the reputation or interest of the Company or Distributor; (e) excessive end-user or customer complaints about a Product or either party’s service and/or ability to deliver Products in a timely fashion; or (f) a party’s failure to maintain a satisfactory credit rating.

 

7.     Obligation to Pay on Termination. Termination of the “Exclusive Distribution Agreement” shall not affect (a) Distributor’s obligation to pay in full for Products already delivered to the Distributor and accepted by Distributor or (b) Company’s obligation to ship Products to Distributor for which Distributor has in place with the Company and are confirmed as open orders.

 

8.     Right to Sell Off Inventory at Termination. At the termination of the “Exclusive Distribution Agreement,” or at the end of the Term of the “Exclusive Distribution Agreement” if it is not renewed, Distributor shall have the right to continue to sell the Products and to maintain any listings on the Sales Channels until Distributor is able to sell through any remaining Product inventory it had on hand.

 

9.     Confidential Information. Unless otherwise agreed to in writing, the parties shall retain in strict confidence and, except as otherwise expressly provided in the “Exclusive Distribution Agreement,” not use or disclose to others any and all information received from a disclosing party, including but not limited to know-how, compilations, processes, plans, blueprints, technical information, new product information, test procedures, product samples, or specifications as well as commercial and other information or data considered confidential in nature, whether communicated in writing or orally (Confidential Information); provided, however, that Confidential Information shall not be deemed to include:

 

a.     information that, at the time of disclosure, is in the public domain or becomes part of the public domain by publication or otherwise through no act of the party receiving it,

b.     information that the non-disclosing party can conclusively establish was in its possession before the time of disclosure to it and was not acquired directly or indirectly from the disclosing party or any of its employees or affiliates, or

c.     information that is independently made available as a matter of right by a third party who has not violated a confidential relationship with the disclosing party.

 

10.  Relationship of the Parties. The relationship between the Company and Distributor is that of buyer and seller. Distributor, including its agents and employees, shall be regarded as an independent contractor. The “Exclusive Distribution Agreement” does not authorize Distributor to be the agent or the legal representative of the Company for any purpose, and vice versa. Distributor is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the Company or to bind the Company in any manner, and vice versa.

 

11.  Assignment. Neither party may assign or transfer any of its rights or delegate the performance of any of its duties under the “Exclusive Distribution Agreement” without the prior written consent of the other.

 

12.  Title. Title to the Products shall remain with Company until delivery is made and Distributor inspects and finally accepts the goods.  All risk of loss or damage from any cause whatsoever shall be borne by Company until delivery, inspection and acceptance by Distributor at Distributor’s place of business.

 

13.  Waiver; Amendment. No amendment, supplement, modification, or waiver of the “Exclusive Distribution Agreement” will be binding unless executed in writing by the party to be bound by it. No waiver of any of the provisions of the “Exclusive Distribution Agreement” will be deemed or will constitute a waiver of any other provision of the “Exclusive Distribution Agreement” (whether or not similar), nor will the waiver constitute a continuing waiver unless otherwise expressly provided.

 

14.  Severability. If any one or more of the provisions of the “Exclusive Distribution Agreement” is for any reason held invalid, illegal, or unenforceable, the remaining provisions of the “Exclusive Distribution Agreement” will be unimpaired.

 

15.  Subdistributors. Distributor may engage subdistributors as part of its operation. The Company shall have the right to preapprove any subdistributor, but it will not unreasonably withhold approval.

 

16.  Marketing. Distributor shall, in its sole discretion, promote the Products from time to time through Amazon “Pay-Per-Click” campaigns, “Headline Advertisement” campaigns, social media “Influencer” campaigns, and through Distributor’s own website. Company shall provide Distributor with any digital marketing materials created, owned, or used by Company (or its affiliated retailers) for use in Distributor’s marketing campaigns. Company grants Distributor a non-exclusive license to use its marketing materials, trademarks, trade names, logos and other intellectual property for the purpose of promoting and advertising the Products. All such promotional expenses, unless otherwise agreed to in writing in advance, will be borne by Distributor.