ROGUE LEMMINGS, INC.
AUTHORIZED RESELLER AGREEMENT
Rogue Lemmings, Inc. (“Company”) understands that you, and your employer for whom you are authorized to act, (hereinafter “Reseller”) wish to purchase and sell Catalyst Branded Products. This Agreement authorizes Reseller to resell Product(s) only through physical retail outlets and Reseller's own website. Company’s initial and continued consent to the relationship contemplated by this Agreement is expressly conditioned on the acceptance of all terms of this Agreement.
1.0 Marketing, Sales and Reporting. Reseller shall only offer to sell, and sell the Product(s) to customers located within the United States, its territories and possession (“the Territory”). Reseller only shall obtain and purchase Product(s) obtained from Company for the purpose of the resale of the Product(s) to Reseller’s customers. Reseller shall, prior to sale, give notice to Company if Reseller intends to resell more than six (6) Product(s) in conjunction with any particular customer order. Reseller shall not during the term of this Agreement contact Company’s suppliers, or any third party, for the purpose of manufacturing or obtaining any product similar to the Product(s). Reseller acknowledges that Product(s) are preferably advertised for a price that is within the Company's Minimum Advertised Price Policy for Catalyst Branded Products (the “MAP Policy”) established by Company unilaterally from time to time. The MAP Policy is subject to amendment or modification at any time by Company unilaterally and in its sole discretion. A copy of the current MAP Policy is attached. For purposes of clarity, Reseller would be a “Distributors” as defined by the MAP Policy. RESELLER SHALL NOT PROMOTE, MARKET, ADVERTISE, OFFER TO SELL OR SELL ANY PRODUCT(S) ON OR THROUGH ANY ONLINE MARKETPLACE OR AUCTION SERVICE OR LIKE WEBSITES. RESELLER MAY OFFER TO SELL AND SELL PRODUCT(S) ON ITS WEBSITE. RESELLER SHALL GIVE NOTICE TO COMPANY IF RESELLER OFFERS PRODUCT(S) THROUGH MORE THAN TWO (2) WEBSITES OWNED OR CONTROLLED BY RESELLER. RESELLER SHALL NOT PROMOTE, MARKET, ADVERTISE, OFFER TO SELL OR SELL ANY PRODUCT(S) ON OR THROUGH EBAY OR AMAZON. Reseller shall observe all directions and instructions given to it by Company in relation to the promotion and advertisement of the Product(s). Reseller shall not make any written statement as to the quality or manufacture of the Product(s) or make any promises or guarantees with reference to the Product(s) other than those expressly set forth in promotional material supplied by Company. Reseller shall have no right, power or authority in any way to bind Company to any contract or obligation, express or implied. Reseller understands that Company intends to hold Reseller liable for all legal liability Reseller may owe to Company for damages caused to Company or its affiliates due to product diversion and/or unauthorized reselling of Product(s) that are the result directly or indirectly from actions of Reseller in breach of this Agreement. It is Company’s policy that no Product(s) shall be sold by any reseller to any person or entity that may resell the Product, whether by retail, mail, Internet, swap meet, flea market, or other commercial means or in violation of U.S. laws, rules or regulations (the “Anti-Diversion Policy”). Reseller shall not sell any Product(s) to any person or entity that Reseller has reason to believe has the intention of reselling the Products, exporting them from the Territory, or otherwise acting in violation of the Anti-Diversion Policy. Reseller shall institute reasonable and appropriate procedures and security measures, which Company may periodically review, to prevent diversion of Product(s), and to fulfill its obligations set forth in this Section 1.0. Reseller agrees to ensure that customers to whom it sells Product(s) do not directly or indirectly advertise or solicit sales or sell the Product(s) via mail or on the Internet or thorough any other means. Reseller agrees to compensate Company for reasonable damages for any violation of this Section 1, and also to reimburse Company for the repurchase of Product(s) by Company from any other entity to which, or through which, Reseller or its customers have diverted the Product(s). In connection with Reseller’s activities under this Agreement, Reseller shall comply with: (1) all applicable laws, rules, and regulations, (2) all instructions from Company concerning the promotion of Product(s), and (3) appropriate ethical standards. Upon Company's request, Reseller shall submit to Company a written report detailing (i) purchases of Product(s) by Reseller from the Company in the prior calendar month, (ii) sales of Product(s) to Reseller’s customers in the prior calendar month, (iii) service stock and outstanding customer orders as of the end of the prior calendar month, and (iv) any other information Company may reasonably require from time to time. Such reports shall be considered Confidential Information of Reseller protected under Section 2.0 of this Agreement. Reseller agrees, at its own cost, to indemnify, defend and hold harmless Company, its affiliates, and their respective officers, directors, employees and agents from and against all actions, proceedings, losses, damages, liabilities, claims, costs and expenses, including without limitation fines, penalties, legal and other professional fees and expenses, arising out of or resulting from acts or omissions or deemed acts or omissions of Reseller, including without limitation the sale of Product(s) to Reseller’s customers.
2.0 Proprietary Rights Brand Guidelines: Reseller shall abide by Company’s and its affiliates' brand guidelines (the “Brand Guidelines”) as provided by Company to Reseller from time to time. Reseller also agrees that (a) only photos provided or authorized by Company may be used to display the Product(s) (b) all Photos of Product(s) must retain natural proportions; and (c) Reseller shall not edit the Photos of Product(s) in any way, other than sizing. Reseller shall ensure that any data, Photos of Product(s) and descriptions of Product(s) displayed by the Reseller: (i) are authorized by Company, (ii) are the most-current versions of such data or materials provided by Company, and (iii) comply with the Brand Guidelines. Whenever referring to the Product(s), Reseller must use the full proper Product(s) name, including as described in the Brand Guidelines. During the term of the Agreement only, Company grants Reseller a non-exclusive, non-transferable, non-sublicensable license to use Company’s and its affiliates' logos, trademarks, and trade names, including any special “Authorized Reseller” logo that Company may develop (the “Marks”): (i) in connection with promotional materials provided by Company and (ii) on the Product(s), but only as set forth on the Product(s) at the time of delivery to Reseller. Reseller agrees to cooperate with Company in monitoring Reseller’s use of the Marks and agrees to supply Company with specimens of, and access to, its uses of the Marks upon request. Reseller shall use each Mark in accordance with the instructions from Company, the Brand Guidelines, and in such manner that it creates a separate and distinct impression from any other logo, trademark, trade name or service mark. Reseller agrees that in its conduct of its business in connection with the Marks it shall do nothing to bring disrepute to or damage the goodwill symbolized by such Marks. Reseller agrees that any goodwill arising from its use of the Marks shall inure to the benefit of and be on behalf of Company. Company may, at Reseller's expense, require Reseller to immediately withdraw from the market any advertising, sales literature, publication or other promotional materials or items produced, published or disseminated hereunder that Company, in its sole discretion, reasonably believes are or may be damaging to the reputation of the Company, its affiliates or the Marks.
Company and Reseller each agree and undertake that during the term of this Agreement and thereafter, each shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any information of a confidential nature (including, without limitation, the terms and conditions of the Agreement, and any information relating to the other party's products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, wholesale pricing information, and other information of commercial value) which may become known to a party from the other party (“Confidential Information”), unless the information (i) is public knowledge or already known to that party at the time of disclosure or (ii) subsequently becomes public knowledge other than by breach of this Agreement or (iii) subsequently comes lawfully into the possession of that party from a third party not subject to confidentiality obligations with respect to such information. To the extent necessary to implement the provisions of the Agreement, each party may disclose Confidential Information to those of its employees as may be reasonably necessary or desirable, provided that before any such disclosure each party shall make those employees aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those employees with such obligations.
3.0 Duration of Agreement. This Agreement shall be effective as of the date Reseller receives approval to participate in the Authorized Reseller Program, and shall continue indefinitely until terminated pursuant to the terms hereof. Either party may terminate the Agreement without cause upon thirty (30) days’ prior written notice to the other party. Company may at any time terminate this Agreement with immediate effect, without notice to Reseller, if Reseller materially breaches any of the terms and conditions of this Agreement, including without limitation any responsibility placed on Reseller pursuant to Section 1.0. Reseller may terminate this Agreement if Company materially breaches any terms or conditions of this Agreement and fails to cure such breach within ten (10) calendar days following receipt of written notice thereof. Upon termination or expiration of this Agreement, Company, at its option, may repurchase any or all Product(s) then in Reseller’s possession at prices not greater than the prices paid by Reseller for such Product(s), provided, however that any such repurchase of Product(s) by Company shall be contingent on Reseller’s shipment of the Product (at Reseller’s expense) to Company’s designated location in the Territory, and on verification by Company that the Product is in its original packaging and in new and immediately salable condition. Any provision of this Agreement which expressly or impliedly (e.g., continued duty of confidentiality, indemnification, etc.) imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
4.0. Warranty and Liability. Company warrants Product(s) only in accordance with Company’s standard warranty(ies) issued from time to time by Company (the “Product Warranty”) for each Product(s). Reseller understands and agrees that any sale by Reseller of Product(s) in violation of this Agreement shall be deemed an unauthorized sale from an unauthorized reseller. Reseller further understands and agrees that all Product(s) obtained from an unauthorized reseller (including Product(s) sold in violation of this Agreement) are obtained without warranty, “AS IS” and “with all faults.” EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 COMPANY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. RESELLER’S SOLE REMEDY FOR ANY NONCONFORMING OR DEFECTIVE PRODUCT OR FOR ANY BREACH OF THE PRODUCT WARRANTY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING PRODUCTS OR PARTS OF SUCH PRODUCT(S). IN NO EVENT SHALL COMPANY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO RESELLER OR ANY OF ITS CUSTOMERS FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF COMPANY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF. THE AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY COMPANY FROM SALES OF PRODUCTS TO RESELLER IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT OR CIRCUMSTANCES GIVING RISE TO THE LIABILITY.
5.0 General Provisions. The official language of this Agreement is English and the official version of the Agreement is the English version. This Agreement, and any dispute, controversy or proceeding arising out of or related to this Agreement, including validity, interpretation, effect and enforcement, shall be governed under the laws of the State of Delaware, without regard to its rules of conflicts of laws. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the related Convention on the Limitation Period in the International Sale of Goods. Any controversy, claim or dispute that arises out of or relates to this Agreement shall be resolved by binding arbitration conducted in accordance with the American Arbitration Association Commercial Arbitration Rules, including rules for Emergency Measures of Protection. If the amount in dispute (or the damages likely to arise out of the dispute) is less than $75,000, the parties shall use the Rules for Expedited Commercial Arbitration. The Arbitration shall be conducted before a panel of three (3) arbitrators. Within 14 days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. Each arbitrator shall be a member of at least one United States state bar and shall have been actively engaged in the practice of law for at least 10 years. The arbitration shall be conducted in English and be held in Cincinnati, Ohio. All awards made pursuant to any arbitration proceeding conducted hereunder shall be in U.S. dollars, and if an award is made to any claimant which is greater than any amount offered in writing by the opposing party in settlement of such claim or if the opposing party has made no offer of settlement, then the opposing party shall pay all of such claimant’s costs and expenses incurred in such arbitration, including reasonable attorneys’ fees, as well as all costs of arbitration, including all AAA fees and charges and the fees and expenses of all arbitrators. If no award is made to claimant or the amount of such award is equal to or less than any such amount offered in settlement, then the claimant shall pay the opposing party’s costs and expenses incurred in such arbitration, including reasonable attorneys’ fees, as well as all such costs of arbitration.
Notwithstanding anything contained herein to the contrary, Company at all times shall have the right to seek collections or equitable remedies through the courts, including but not limited to injunctive relief, or otherwise as it deems necessary or desirable to protect its confidential and/or proprietary rights, trademarks or other intellectual property rights. The exercise by Company of any rights shall be without prejudice to any other rights that Company may have at law or in equity, under this Agreement or otherwise, and shall not give rise to any rights or claims by the Reseller for compensation or damages, including loss of profits, customers, goodwill, capital investment or otherwise.
Reseller may not assign its rights, duties or obligations under this Agreement, in whole or in part, without Company’s prior written consent. Any prohibited assignment shall be null and void. (Waiver) The failure of a party to insist upon strict adherence to any term of this Agreement, on any occasion, shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term, or any other term, of this Agreement. (Notices) Any notice or other communication under this Agreement shall be in writing and shall be considered given five (5) business days after being mailed by prepaid registered mail, return receipt requested, being faxed or immediately upon delivery by recognized courier service. (Interpretation) Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party's authorship of a relevant provision of the Agreement or of any of its interim drafts. (Severability) Except where it would materially alter the terms and conditions of this Agreement, in the event any provision of this Agreement is held to be illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and shall be enforced to the greatest extent permitted by law. Entire Agreement: This Agreement sets forth the entire understanding of the parties with respect to the matters set forth herein and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto. The persons signing this Agreement represent and warrant that they are authorized to execute this Agreement on behalf of the respective party
IN WITNESS WHEREOF, the parties have caused this Authorized Reseller Agreement to be executed on their behalves by their proper and duly authorized representatives as of the date first written above. Both signatories warrant that they have the proper authority to sign this Agreement and bind their respective companies.
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