AGLOW® PRO DISTRIBUTION AGREEMENT
TERMS AND CONDITIONS
Supplier agrees to sell, and Distributor agrees to buy, the products made available through the Aglow Pro™ Shop (collectively, the “Products”) subject to the provisions of these terms and conditions (“Agreement”). Distributor shall comply with the Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication regarding such subject matter, whether written or oral. Except as otherwise specifically set forth herein, this Agreement may not be amended except in a writing signed by both parties.
- Supplier. For purposes of this Agreement, “Supplier” is AGLOW PRODUCTS, LLC, a Massachusetts limited liability company.
- Distributor. For purposes of this Agreement, “Distributor” is the person purchasing the Products from the Aglow Pro Shop for the purpose of distributing the Products.
- Purchase Price. Distributor agrees to pay Supplier the amount stated in the shopping cart for the Products (“Purchase Price”).
- Shipment Risk of Loss. Supplier will ship the Products F.O.B. Bedford, MA or whatever other location Supplier operates (“Supplier’s Facility”). Risk of loss, damage or destruction of or to any Product(s) passes to Distributor upon shipping of the Product from Supplier’s Facility.
- Taxes, Shipping. The Purchase Price specified on the first page of this Agreement does not include any (a) taxes payable on such price, or on the transfer, sale or use of the Product, or (b) shipping or other transportation charges, all shipments being made F.O.B. Supplier’s Facility. The Distributor shall pay all insurance, taxes, shipping charges, storage charges, and other costs or expenses relating to its receipt, transfer, sale and use of the Product.
- Scope Of Distribution. Supplier grants to Distributor the non-exclusive right to sell the Products in the United States of America with the exception of the states where an Aglow® spray tanning franchise is open, or within 100 miles of any Aglow® location. If an Aglow® spray tanning franchise opens after signing this Agreement, Distributor must cease all sales of Products in that state or within 100 miles of such location. Distributor does not receive any exclusive rights to sell the Products. Distributor may not sell the Products via the internet or any third party retail or auction websites, such as Amazon or Ebay, without Supplier’s prior and express written approval. Supplier exclusively reserves the right, to sell, market and distribute the Products using other advertising strategies and distribution channels, like catalogs and other direct sales methods, to or through wholesale outlets, co-branding with other companies and the Internet, etc. without paying Distributor any compensation. Supplier also reserves the right to sell similar products under a different trademark.
- Minimum Advertised Pricing Policy. Supplier will, from time to time, publish a Schedule of Manufacturer’s Minimum Advertised Prices (“MAP Schedule”), which may be amended or adjusted by Supplier at any time in its sole discretion. The MAP Schedule will identify the effective date, the products, the manufacturer’s suggested retail price for the products (“MRSP”), and the minimum advertised price for the products (“MAP”). Each advertisement of a product identified in the MAP Schedule that is below the MAP amount will be a violation of this MAP Policy. Aglow® products not specifically identified in the MAP Schedule are not subject to this MAP Policy.
- Confidentiality. Except as otherwise permitted in this Agreement, Distributor acknowledges and agrees that, by reason of its relationship to Supplier, it may have access to certain information and materials concerning Supplier’s Product and its formulas, mixes, ingredients, business plans, customers, and technology that are confidential. All such information is to be treated by Distributor as confidential. Such information and materials are of substantial value to Supplier, which value would be impaired if such information were disclosed to third parties. Distributor agrees that it will not reveal to third parties, or use in any way for their own account, any such confidential information revealed to Distributor by Supplier. Distributor shall not publish any description of the Products beyond the description published by Supplier. Distributor shall not manufacture or have manufactured any products or components or create or have created any product utilizing any of Supplier’s confidential information. In the event of termination of this Agreement, this Section shall not terminate and shall remain in effect.
- Laws &Regulations. Distributor will at all times comply with any and all applicable regulations and laws governing the sale or use of the Products.
- Disclaimers and Limitation on Liability. SUPPLIER MAKES NO WARRANTY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR EXPRESSLY STATED IN OTHER PRINTED MATERIALS PROVIDED BY SUPPLIER WITH THE PRODUCTS. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE DISCLAIMED AND EXCLUDED. IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS (REGARDLESS OF THE FORM OF ACTION, WHETHER BY CONTRACT, WARRANTY, TORT, MALPRACTICE, FRAUD AND/OR OTHERWISE) EXCEED THE LESSER OF $1,000 OR THE AMOUNT ACTUALLY PAID BY DISTRIBUTOR TO SUPPLIER UNDER THIS AGREEMENT. ANY LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM DISTRIBUTOR’S, ITS AGENTS’, OR ANY CUSTOMERS’ INSPECTION, DELIVERY, PICK-UP, OR PURCHASE SHALL BE THE SOLE RESPONSIBILITY OF DISTRIBUTOR.
- Defective Products. If a Product has a material defect, Distributor must notifying Supplier of the Product defect within fifteen (15) calendar days. Supplier will then issue a credit only to Distributor within thirty (30) days of receipt of the defective Product.
- Damaged Products. Products may not be returned after receipt by Distributor.
- Distributor Default. Distributor shall be in default under this Agreement upon the failure of Distributor to observe or perform any of Distributor’s agreements herein contained. In the event of default by Distributor, Supplier shall be entitled to collect from Distributor all costs, fees and expenses incurred to enforce its rights hereunder, including, without limitation, court costs, attorney fees, and other legal fees whether or not necessary to bring suit. In the event that a billing dispute should arise, Distributor must notify Supplier in writing no later than ten (10) days after purchase. Distributor must state in detail the nature of the claim, the amount in question and must provide supporting documentation. Upon receipt of claim, Supplier will investigate the claim and respond in writing no later than forty-five (45) days thereafter. All determinations of Supplier with respect to such disputes shall be final.
- Limitation of Liabilities. In no event shall Supplier be liable for loss of profit, indirect, special, incidental, exemplary, punitive or consequential damages arising out of any breach of this Agreement or obligations under this Agreement. Without limiting the foregoing, Supplier shall not be liable for any damages caused by delay in delivery, installation or furnishing of the Product. Notwithstanding anything to the contrary contained herein, Supplier’s liability under this Agreement shall in no event exceed the per unit Purchase Price under this Agreement for the Product that is the subject of any claim. The provisions of this Section shall apply regardless of the form of action, damage, claim, liability, cost, expense or loss, whether in contract, statute, or tort (including, without limitation, negligence).
- Force Majeure. Supplier shall not be liable for any delay or interruptions in performance under this Agreement, which is caused by any condition that is beyond the control of the Supplier, including, without limitation, strikes, riots, acts of terrorism, acts of God, failure of power, telecommunications or connectivity failure, computer malfunctions, restrictive governmental laws or regulations and unavailability of materials and goods used in the Products. Without limiting the foregoing, delivery dates constitute Supplier’s best estimates, and Supplier shall not incur any liability to Distributor in the event the Product is not delivered by the estimated delivery date.
- Cancellation of Orders. Orders may not be cancelled after the order is received by Supplier (but prior to shipment by Supplier) unless Supplier consents in writing to such cancellation. Cancellation will be granted only on terms indemnifying Supplier against any loss resulting from such action and on such other terms determined by Supplier. At minimum, Distributor will be liable for all cost incurred on the order through the cancellation date.
- Notices. Except as provided in these Terms and Conditions, all notices, reports, requests, approvals, and other communications required or permitted under this Agreement must be in writing.
- Assignment. Distributor may not assign this Agreement.
- Retention of Title. The Products shall remain the property of the Supplier until Distributor’s complete payment of the Purchase Price, or as otherwise agreed. Notwithstanding the foregoing, Distributor does not acquire any property or proprietary rights. The Products are offered for sale and are sold by Supplier subject in every case to the condition that such sale does not convey any license, expressly or by implication. You may not use the name “Aglow®” “Aglow Pro™” or any other derivative of these marks in your business name and you do not receive a license to use such marks other than in relation to the sale of the Products. Distributor shall not copy or duplicate, remanufacture, reverse engineer, decompile, or disassemble, nor shall Distributor permit any other person, including customers, to copy or duplicate, remanufacture, translate, reverse engineer, decompile, or disassemble, all or any part of the Product, in any manner. The Supplier remains the exclusive owner of any intellectual or industrial property rights relating to the Products and any and all trademarks represented by Supplier’s company name, logos, and product names. The Product is protected by trade secret laws.
- Equitable Relief. Distributor acknowledges and agrees that Supplier may suffer irreparable harm which is not easily measured in monetary terms if Distributor breaches the terms of this Agreement, and Distributor agrees that, in addition to all remedies (monetary and non-monetary) available to Supplier upon any such breach, Supplier shall be entitled to seek and receive temporary and permanent injunctive or similar equitable relief to immediately cause Distributor or any customer of Distributor to cease the conduct that violates such Sections. Distributor agrees that it will not object to the granting of such relief, will not attempt to assert an affirmative or other defense, and will fully cooperate with Supplier. The parties agree any such relief shall be granted without the posting of a bond or other monetary requirement by Supplier.
- General. (a) If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. (b) The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder. (c) In the event of a conflict between the shopping cart and any of the Terms and Conditions, the first page shall control. (d) This Agreement may only be amended in writing signed by all parties hereto and any condition to a party’s obligations hereunder may only be waived in writing by such party. (e) Distributor hereby consents to the exclusive jurisdiction of, and venue in, all state and federal courts in the state of New Hampshire. If requested by Supplier, Distributor also agrees to first participate in non-binding mediation prior to filing any court action. (f) This Agreement and the performance hereunder shall be governed by the law of the State of New Hampshire, without regard to its principles of conflicts of laws. (g) The headings and other captions in these Terms and Conditions are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of these Terms and Conditions. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require. (h) The provisions of these Terms and Conditions which by their nature are reasonably intended to survive any expiration or termination of Supplier and Distributor’s relationship with one another shall survive such expiration or termination.