This Agreement (hereinafter referred to as “Agreement”) is made and entered into by and between EuroMedica, a Wisconsin company with offices located at 955 Challenger Drive, Green Bay, WI 54311 (hereinafter referred to as “Manufacturer”) and the reseller, any practitioner, or clinic selling EuroMedica products, (hereinafter referred to as “Reseller”).
WHEREAS, the Manufacturer has for many years, and is presently, engaged in the development and sale of products including, but not limited to the following brands: EuroMedica (the “Products”), and the sale of Products throughout the world;
WHEREAS, the Manufacturer is the owner of the various trademarks which it uses on an in connection with its Products (the “Trademark(s)”);
WHEREAS, the Reseller is desirous of being a non-exclusive Reseller of the Products on the terms and conditions set forth herein;
WHEREAS, to maintain the integrity of its Products and brands, Manufacturer has established a channel limitation and warranty policy which applies to Resellers of its Products;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Manufacturer and Reseller agree as follows:
- Amazon & Marketplace Sales: Reseller will not under any circumstances sell Manufacturer’s Products to or on Amazon.com, via Amazon Vendor Central, Amazon Vendor Express, Fulfillment by Amazon (FBA), Fulfillment by Merchant (FBM), Seller Fulfilled Prime (SFP), FBA Onsite, or in any other manner which currently exists or may hereafter may be developed on the Amazon sales platform (collectively, “Amazon.com”) or on Walmart.com, Jet.com, Rakuten.com, Buy.com, Ebay or any other third-party marketplace (collectively, “Third Party Marketplaces”). Manufacturer reserves the right to cease all sales to any Reseller who violates the terms of this Agreement.
- Warranties: Reseller understands and acknowledges that Manufacturer expressly disclaims any and all warranties as to Products which are sold via unauthorized Resellers. Sales to or via Amazon.com and/or Third Party Marketplaces in violation of this Agreement will render Reseller as an unauthorized Reseller, thereby voiding any and all Product warranties as well as Manufacturer’s product return policies.
- Anti-Diversion: In order to assure continued effective promotion of Manufacture’s products and to protect against contamination and dilution of Manufacture’s products, and for other good and valid business reasons, it is the policy of Manufacturer that:
- Reseller may not sell Manufacturer’s products to any other Reseller, re-seller, diverter, distributor, redistributor or wholesaler;
- Reseller may not knowingly sell Manufacturer’s products to any party intending to resell Manufacturer’s products;
- Reseller is authorized only to sell Manufacturer’s products directly to end-user consumers; and
- Reseller may not sell Manufacturer’s products in bulk.
Reseller also acknowledges and agrees to Manufacturer’s Authorized Reseller Terms & Conditions (“T&C’s”) set forth in Figure A, which shall apply to Reseller. The T&C’s shall apply to all Manufacturer products and may be adjusted by Manufacturer in its sole discretion.
- Business Interference: Reseller is not authorized under this Agreement or under any other agreement or understanding between the Parties, unless expressly agreed to in writing, to be an authorized Reseller of Manufacturer on Amazon.com and Third Party Marketplaces. Further, Reseller acknowledges that Manufacturer has an exclusive contractual obligation to a third-party company (not a party to this Agreement) to act as Manufacturer’s exclusive authorized Reseller on Amazon.com and Third Party Marketplaces. Therefore, Reseller agrees that if it violates this Agreement, directly or indirectly, including but not limited to, the restriction against selling to or via Amazon.com or Third Party Marketplaces, that Reseller has tortuously interfered with Manufacturer’s business relationship and contractual duties with Manufacturer’s exclusive authorized reseller
- Liquidated Damages: Reseller acknowledges that breach of the obligations of this Agreement, other than the obligation to pay Manufacturer for Products purchased, will cause Manufacturer monetary damages that are difficult or impossible to quantify with specificity. Reseller agrees to pay Manufacturer as a reasonable estimate of actual monetary damages from such breach(es) liquidated damages in an amount equal to $350.00 for each separate breach for each day that any breach continues. For example, if Reseller breaches this Agreement by selling or offering to sell to customers on Amazon.com three (3) different Products for 10 days, liquidated damages shall be $10,500 and if Reseller offers to sell fifty (50) Products on Amazon.com for a period of 30 days, the liquidated damages shall be at minimum $525,000. The parties agree that the liquidated damages provided herein is not a penalty but is a reasonable estimate of damages that are difficult or impossible to ascertain in view of the damages anticipated by Reseller’s breach(es). Liquidated damages shall be Manufacturers exclusive monetary remedy for Reseller’s breach(es) of Paragraphs 1, 2 & 3 herein, provided that Manufacturer shall also be entitled to recover its reasonable attorneys’ fees and costs incurred in enforcing its rights hereunder, as well as all equitable relief to which it may be entitled and to terminate Reseller as a Reseller of Manufacturer. For breach of any other provisions of this Agreement or any statutory or common law rights and obligations, Reseller shall not be limited to the damages formula herein, but shall be liable for all damages of Manufacturer.
- Restrict Sales: Manufacturer reserves the right to fully investigate all suspected violations of this Agreement. Manufacturer reserves the right to refuse to sell Manufacturer’s products to any party determined by Manufacturer to have violated this Agreement and to take such further action, legal or otherwise, as Manufacturer deems necessary and appropriate.
- Irreparable Harm: Reseller acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights, intellectual property rights or confidential information of Manufacturer will cause Manufacturer irreparable injury for which there are inadequate remedies at law, and therefore Manufacturer will be entitled to equitable relief, including specific performance and/or injunctive remedies in addition to all other remedies provided by this Agreement or available at law.
- Name Disclosure: Reseller acknowledges full disclosure of all of its corporate names and business names under its control to Manufacturer and has disclosed a list of any such business names to Manufacturer. Reseller understands that multiple accounts under different business names, but under the control of a parent corporation or owner with Manufacturer are not permitted. All orders with Manufacturer shall come from the Parent Corporation or business.
- Indemnification: Reseller shall at all times during and after the term of this Agreement be responsible for, and shall defend, indemnify, and hold Manufacturer harmless from and against any and all losses, claims, suits, proceedings, expenses, recoveries, and damages, including reasonable legal expenses and costs including attorneys’ fees, arising out of any claim by a third party relating to the Product, or any aspect of the performance of this Agreement, to the extent such liability results from the negligence or willful misconduct of Reseller in selling, processing, packaging or storing the Product, or any breach of a representation or warranty given herein by Reseller, provided, however that Manufacturer shall give Reseller prompt notice of any such claim or lawsuit and, provided further, that Reseller shall have the right to compromise, settle, or defend such claim or lawsuit.
- Limitation of Liability: MANUFACTURER SHALL NOT BE LIABLE TO RESELLER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS. THE AGGREGATE LIABILITY OF MANUFACTURER FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY ITS ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE AGGREGATE AMOUNT PAYABLE BY RESELLER TO MANUFACTURER DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSATION OF ANY DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
- Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THE WARRANTY SECTION OF THE DOCUMENTS ACCOMPANYING THE PRODUCTS OR IN PRODUCT LITERATURE FURNISHED BY MANUFACTURER CONTAINING PRODUCT WARRANTIES, AS IN EFFECT FROM TIME TO TIME (THE “STATEMENT OF WARRANTY”), ALL MANUFACTURER PRODUCTS ARE SOLD ON AN “AS IS” BASIS AND MANUFACTURER MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE OR KIND REGARDING THE PRODUCTS. MANUFACTURER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE OR OTHERWISE. THE SOLE OBLIGATION AND LIABILITY OF MANUFACTURER IN RESPECT OF ITS WARRANTY AS SET FORTH IN THE STATEMENT OF WARRANTY SHALL BE, AT ITS OPTION, TO REPAIR OR REPLACE THE RELEVANT PRODUCT AT ITS COST.
- Term: This Agreement shall last for a period of one (1) year, and shall automatically renew for subsequent 1-year terms until terminated as set forth herein.
- Termination: If either party breaches or defaults in the performance or observance of any of the material provisions of this Agreement, the non-defaulting party shall have the right to terminate this Agreement upon giving ten (10) days written notice to the defaulting party. In the case of a material breach or default, the non-defaulting party shall provide a period of ten (10) days from the date of receipt of the notice of default to allow for the defaulting party to cure under the terms of the Agreement. Upon termination, Reseller shall immediately cease all marketing and sales of the Products, and shall cease all use of any Product packaging and advertising materials bearing any of the Trademarks.
This Agreement terminates automatically, with no further act or action of either party, if: (1) a receiver or trustee is appointed for Reseller or its property or Reseller is adjudged bankrupt, (2) Reseller makes an assignment for the benefit of its creditors, (3) Reseller becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, (4) Reseller becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing, or (5) Reseller is liquidated or dissolved.
On the expiration or termination of this Agreement:
- All the rights and obligations of the Parties shall terminate, except as explicitly provided otherwise in this Agreement;
- Reseller’s rights hereunder to use the Trademarks shall revert automatically to Manufacturer;
- Reseller immediately shall discontinue all use of the Trademarks; and
- Reseller no longer shall have the right to use and exploit the Trademarks, nor any variation or simulation thereof which is substantially similar thereto.
- Trademarks: During the term of this Agreement and subject to the terms and conditions specified herein, Manufacturer grants to Reseller a non-exclusive, nontransferable, limited license to use Manufacturer’s Trademarks only as necessary for Reseller to fulfill its obligations hereunder. Reseller’s use of such trademarks, trade names, logos and designations will be in accordance with Manufacturer’s policies in effect from time to time. Reseller agrees not to attach any additional trademarks, trade names, logos or designations to any Manufacturer Product. Reseller further agrees not to use any Manufacturer trademark, trade name, logo or designation in connection with any non- Manufacturer Product. Manufacturer reserves the right to review planned uses of its trademarks, trade names, logos and designations to confirm that they are within the guidelines, prior to usage of such trademarks by Reseller.
Manufacturer shall have the right to exercise quality control over the use of its Trademarks by the Reseller to the degree necessary, in the sole opinion of the Manufacturer, to maintain the validity and enforceability of such Trademarks and to protect the goodwill associated therewith. Reseller shall, in its use of the Trademarks, adhere to a level of quality at least as high as that used by Manufacturer in connection with its use of its own Trademarks. If Manufacturer, in its reasonable opinion, finds that Reseller’s use of the Trademarks (or any of them) threatens the goodwill of the Trademarks (or any of them), Reseller shall, upon notice from Manufacturer, immediately, and no later than ten (10) days after receipt of such notice, take all measures reasonably necessary to correct the deviations or misrepresentations in, or misuse of, the respective items.
Reseller has paid no consideration for the use of Manufacturer’s trademarks, trade names, logos, designations or copyrights, and nothing contained in this Agreement will give Reseller any right, title or interest in any of them. Reseller acknowledges that Manufacturer owns and retains all trademarks, trade names, logos, designations, copyrights and other proprietary rights in or associated with Manufacturer Products, and agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any trademark, trade name, logo, designation or copyright belonging to or licensed to Manufacturer (including, without limitation any act or assistance to any act, which may infringe or lead to the infringement of any of Manufacturer ‘s proprietary rights).
Reseller shall submit all prospective advertising and marketing materials incorporating the Trademarks, or otherwise relating to the Products, to Manufacturer for approval prior to any publication, distribution or other use of the same. Unless and until Manufacturer provides such approval, Reseller shall not publish, distribute or otherwise use such prospective advertising and marketing materials nor permit any third party to publish, distribute or otherwise use the same in any manner.
Reseller shall respect the original graphics of the Trademark and Designs and shall not remove, change, modify, or make any additions to the Trademark and Designs as used in connection with the Products without the prior written approval of Manufacturer. Manufacturer shall have the right at any time, and from time to time, to obtain photographs or samples from Reseller of all materials used by Reseller which display the Trademark and Designs, and Manufacturer may, in its sole and absolute discretion, require Reseller to discontinue the use of any materials which, in the sole judgment of Manufacturer, may be detrimental to the goodwill embodied in such Trademark and Designs. If Manufacturer requires Reseller to discontinue the use of any such materials under the provisions of this subparagraph, such discontinuation shall apply prospectively only, such that Reseller shall have no obligation to retrieve or otherwise eliminate any complained-of materials already appearing in publications or otherwise in advertisements by third parties not under the control of Reseller.
Reseller shall use the Trademarks in accordance with sound trademark and trade name usage principles and in compliance with all applicable laws and regulations of the United States (including without limitation all laws and regulations relating to the maintenance of the validity and enforceability of such Trademarks) and shall not use the Trademarks in any manner that might tarnish, disparage, or reflect adversely on the Trademarks or the Manufacturer. Reseller shall use, in connection with Manufacturer’s Trademarks, all legends, notices and markings required by law. Reseller may not alter the appearance of the Trademarks in any advertising, marketing, distribution, or sales materials, or any other publicly distributed materials without the prior written consent of the Manufacturer.
Reseller agrees to use reasonable efforts to protect Manufacturer’s proprietary rights and to cooperate at Reseller’s expense in Manufacturer’s efforts to protect its proprietary rights. Reseller agrees to promptly notify Manufacturer of any known or suspected breach of Manufacturer’s proprietary rights that comes to Reseller’s attention.
Reseller shall not enter into any contracts, or engage in any practice which is detrimental to the interests of Manufacturer in its Products or Trademarks, and the goodwill associated therewith.
Reseller shall not use Manufacturer’s Trademarks, advertising, marketing, distribution, or sales materials, or any other materials for the purpose of creating new listings or altering existing listings on the Amazon.com or other Third Party Marketplaces. Manufacturer retains the express right as the only party permitted to maintain and update all content of Manufacturer listings found on the Amazon.com and Third Party Marketplaces, including listing creation.
- Assignment: The parties may not assign any right or obligation hereunder without the written consent of the other party, wherein consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and assigns. Any attempted assignment in violation of this provision shall be void and of no effect.
- Choice of Law and Jurisdiction: This Agreement is deemed to have been entered into in the State of Wisconsin, and its interpretation, construction, and the remedies for its enforcement or breach are to be applied pursuant to and in accordance with the laws of the State of Wisconsin. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State or Federal Courts located in Brown County, Wisconsin. The parties waive the right to contest exclusive venue by any motion to transfer, motion for forum non-conveniens or related motions.
- Waiver: No waiver of any right under this Agreement shall be deemed effective unless contained in writing and signed by the party charged with such waiver, and no waiver of any right shall be deemed to be a waiver of any future right or any other right arising under this Agreement. All rights, remedies, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and none of them shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
- Invalidity: In the event that any portion of this Agreement is declared invalid or unenforceable for any reason, such portion is deemed severable, and the remainder of this Agreement will be deemed and remain fully valid and enforceable, unless such invalidity and unenforceability tends to substantially deprive any Party of the benefits to be provided to it by this Agreement, in which case said deprived Party will have the option of keeping this agreement or terminating it.
- Notice: Any notice, consent, or approval permitted or required under this Agreement shall be in writing and shall be sent by registered or certified mail, postage pre-paid, or by overnight courier, or by facsimile or telex (confirmed by mail), to the addresses set forth above or to such other address in the United States that the parties may hereafter specify.
All notices shall be deemed to be effective on the date of receipt.
- Attorneys’ Fees: In the event that Reseller fails to satisfy its commitments hereunder or otherwise breach the terms of this Agreement, or if Manufacturer seeks judicial resolution to enforce any of the terms of this Agreement, then the Reseller agrees to and shall reimburse Manufacturer for all reasonable attorney’s fees and court/litigation expenses.
IN WITNESS WHEROF, Reseller agrees to adhere to these terms of this Reseller Agreement effective with first purchase of Products.
Authorized Reseller Terms & Conditions
To protect and promote our brand and reputation for providing high-quality products, EuroMedica has established these Authorized Reseller Terms & Conditions (the “Terms”), effective immediately, which apply to authorized Resellers of EuroMedica products (the “Products”). By purchasing from EuroMedica for retail sale, you (“Reseller”) agree to adhere to the following terms. Please read these Terms carefully.
- Manner of Sale. Reseller shall sell the Products only as set forth herein. Sales in violation of the Terms are strictly prohibited and may result in EuroMedica’ immediate termination of Reseller’s account, in addition to other remedies. Furthermore, Products sold to unauthorized persons or through unauthorized channels, including unauthorized websites, shall not be eligible for certain promotions, services, and benefits, including, unless prohibited by law, coverage under EuroMedica’s Product warranties and guarantees.
- Reseller shall sell Products solely to end users of the Products. Reseller shall not sell to anyone a quantity of the Products greater than that generally purchased by an individual for personal use.
- Reseller shall not sell, ship or invoice Products to customers outside of the United States or to anyone Reseller knows or has reason to know intends to ship the Products outside of the United States without the prior written consent of EuroMedica.
- Reseller is permitted to market for sale or sell the Products through websites owned or operated by Reseller, provided however, that such websites identify Reseller’s full legal name, mailing address, telephone number and email address. EuroMedica, in its sole discretion, may revoke Reseller’s authorization to sell the Products on such websites at any time, and Reseller shall cease marketing for sale and/or selling the Products on such website immediately upon notice of such revocation. Reseller shall not sell the Products on or through any other website, including any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of EuroMedica, which is granted solely by EuroMedica. No EuroMedica employee or agent can authorize online sales through oral statements, other written agreement, or by any other means.
- Reseller shall comply with any and all applicable laws, rules, regulations and policies related to the advertising, sale and marketing of the Products.
- Intellectual Property. EuroMedica owns all proprietary rights in and to the EuroMedica brand, name, logo, trademarks, service marks, trade dress, copyrights, and other intellectual property related to the Products (the “IP”). Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Reseller’s status as an Authorized Reseller. EuroMedica reserves the right to review and approve, in its sole discretion, Reseller’s use or intended use of the IP at any time, without limitation. All goodwill arising from Reseller’s use of the IP shall inure solely to the benefit of EuroMedica.
- If Reseller violates any of the Terms, EuroMedica reserves the right to terminate the Terms immediately in addition to all other available remedies. Upon termination, Reseller will immediately lose its status as an Authorized Reseller and shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Reseller is an Authorized Reseller or has any affiliation with EuroMedica; and (iii) using any IP.
- Availability of Injunctive Relief. Notwithstanding anything to the contrary herein, if there is a breach or threatened breach the Terms, it is agreed and understood that EuroMedica will have no adequate remedy in money or other damages at law. Accordingly, EuroMedica shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Terms of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by EuroMedica to exercise any right(s) herein shall constitute a waiver of any provision herein.
- EuroMedica reserves the right to update, amend, or modify the Terms upon written or electronic notice to Reseller. Unless otherwise provided, such amendments will take effect immediately and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the IP, or use of any other information or materials provided by EuroMedica to Reseller under the Terms following notice will be deemed Reseller’s acceptance of the amendments. No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing. If any provision of the Terms is held contrary to law, the remaining provisions shall remain valid. The following provisions shall survive the termination of the Terms: Sections 3 and 7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.