This Reseller Agreement (this “Agreement”) constitutes the sole offer from Positioning Animals Worldwide, Inc. (“PAW”) to
(“Vendor”) for Vendor to market and resell SpotLight™ (“Products”), and upon Vendor’s execution of this Agreement, shall constitute the entire agreement between PAW and Vendor with respect to Vendor’s marketing and resale of Products. Any terms or conditions that are in any way inconsistent with or in addition to this Agreement shall not be binding on PAW.
1. LICENSE: Subject to the terms and conditions of this Agreement, PAW hereby grants to Vendor a non-exclusive, non-transferable right to market and sell Products for one year from the date of receipt of Products hereunder. Vendor shall not and shall not permit any third party to market, sell or distribute Products through any other means or mechanism, including without limitation through any online store. Vendor shall use only those merchandise aids and promotional materials provided by PAW to market and sell Products herein. Subject to the terms and conditions of this Agreement, PAW hereby grants to Vendor a non-exclusive, non-transferable right to use the trademarks set forth on Products, Product packaging and related documentation ( “Marks”) solely to market and sell Products. Vendor shall not market or sell Products in connection with any trademark other than Marks unless previously approved in writing by PAW.
PAW and its licensors hereby retain any and all right, title and interest in and to Products and Marks. All use of Products and Marks by Vendor and all goodwill associated therewith shall inure to the exclusive benefit of PAW. Vendor shall use its best efforts to protect PAW or its licensor’s rights in the Products and Marks and shall not challenge the validity of ownership thereof or its rights therein. Vendor shall assign to PAW or its designee any right in the Products and Marks which Vendor may acquire through use or otherwise (except the license to use Marks upon the terms and the conditions of this Agreement). Vendor shall not represent that it has any ownership interest in the Products or Marks. Vendor will not, and shall not permit any third party to reproduce, copy, disassemble, reverse engineer or otherwise modify or alter the Products in any way.
2. DELIVERY: Vendor shall be responsible for freight and delivery charges to Vendor’s specified destination for Products. All deliveries by PAW shall be FOB destination to the delivery location indicated by Vendor at the time of order. Risk of loss and title with respect to Products delivered by PAW shall pass to Vendor upon Vendor’s receipt thereof.
3. COVENANTS OF VENDOR: Subject to the terms and conditions of this Agreement, Vendor agrees to: market and sell Products at the MSRP which is $249.99; conduct business in a manner that reflects favorably at all times on Products and on PAW and its good name, goodwill and reputation; avoid deceptive, misleading or unethical practices that are or might be detrimental to PAW, the Product, or the public; make no representations, warranties or guarantees with respect to Product or PAW that are inconsistent with those customarily provided by PAW; and comply with all applicable federal, state and local laws in connection with the marketing and sale of Products.
4. WARRANTIES AND LIMITATION OF LIABILITY: Except as otherwise expressly provided in thIS AGREEMENT, paw disclaims all REPRESENTATIONS AND warranties of any kind, express or implied including, without limitation, any implied REPRESENTATIONS OR warranties of non-infringement, QUIET ENJOYMENT, merchantability or fitness for a particular purpose, any REPRESENTATIONS OR warranties concerning results obtained from products or warranties arising out of THE course of dealing or course of performance. PAW DOES NOT WARRANT THAT OPERATION OR USE OF PRODUCTS WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. IN NO EVENT WILL PAW OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY FORM OF DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF CLAIM OR ACTION (WHETHER BASED ON THEORIES OF CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) OR OTHERWISE, EVEN IF VENDOR WAS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
5. INDEMNITY: Vendor shall defend and hold harmless from and shall indemnify PAW against any and all losses of any type or kind whatsoever which may be made against PAW by any person or entity occurring as a result of or in any way arising out of the negligence of Vendor or Vendor’s failure to perform in accordance with this Agreement.
6. ACCEPTANCE: Vendor shall have thirty (30) days after receiving Products hereunder to inspect such Products and either accept them or reject them as non-conforming with this Agreement. Vendor may return Products that do not conform to this Agreement to PAW at Vendor’s cost and may request from PAW a refund of the purchase price thereof or replacement with Products that conform in all material respects to this Agreement.
7. TERMINATION: This Agreement is effective from the date of receipt of Products by Vendor. PAW may terminate this Agreement, in whole or in part, at any time with or without cause, upon written notice to Vendor. Vendor may not terminate this Agreement once it receives Products hereunder, but Vendor is under no obligation to place subsequent orders.
8. MISCELLANEOUS: Vendor shall neither assign any interest or right, nor delegate any duty, obligation, or responsibility, under this Agreement without the prior written consent of PAW. This Agreement and any of the transactions it contemplates shall be governed by the internal laws of the State of North Carolina, a Uniform Commercial Code state, without regard to principles of conflicts of laws. The state and federal courts located in North Carolina shall have exclusive jurisdiction over any dispute arising out of or related to this Agreement or Products, and each party irrevocably and unconditionally consents to such courts (1) having personal jurisdiction over them and (2) being the proper venue for any such dispute and each waives any objection or defense to such personal jurisdiction and venue regardless of the nature of such objection or defense. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this document.
IN WITNESS WHEREOF, Vendor has duly executed this Agreement as of the date set forth below.