DEALER AGREEMENT WITH STANDARD TERMS AND CONDITIONS OF SALE

Transcription

1 Page 1 of 5 DEALER AGREEMENT WITH STANDARD TERMS AND CONDITIONS OF SALE This Dealer Agreement with Standard Terms and Conditions of Sale (this Agreement ) is made and entered into on the date indicated below, by and between SANITA FOOTWEAR, LLC, a Texas limited liability company ( Sanita ), and the undersigned dealer, whose name, address and state of organization appear on the signature page hereof ( Dealer ). This Agreement shall be effective only upon execution by Dealer and acceptance by Sanita. 1. DEFINITIONS: Dealer shall mean the undersigned person or company ordering or purchasing Products through Sanita for resale to Customers. Internet shall mean the global system of interconnected computer networks, as it exists from time to time, that use the standard Internet protocol suite (TCP/IP) to link users worldwide via a broad array of electronic, wireless and optical networking technologies. Products shall mean all footwear, apparel, socks, packaging, display materials, merchandising materials, accessories and other goods ordered or purchased through Sanita. Sanita shall mean Sanita Footwear, LLC, a Texas limited liability company, with an address at 4023 Westhollow Parkway, Houston, Texas , and its designated successors and assigns. Sanita Marks shall mean all tradenames, trademarks, logos, patents, marketing collateral and other intellectual property owned and/or licensed by Sanita or its affiliates, including, without limitation, the following: Sanita, SanDuty, SanSafe, Sanita Smart Step, Sanita Catwalk and koi by Sanita. Social Media shall mean any Website or Internet-based application that uses web-based technologies to turn communication into interactive dialogue and/or to create and exchange user-generated content, including, without limitation, social networking sites (such as Facebook, Twitter and Lookbook), blogs and microblogs and content communities. Website shall mean all Internet websites, web pages and/or other online means, including, without limitation, third party websites, landing pages, video sites, aggregators and auction sites, owned, controlled or used by Dealer in or in connection with Internet sales and/or marketing of the Products. 2. DEALER DUTIES: Dealer will use its best efforts to promote demand for and sale of the Products, to maintain and properly train sufficient personnel with respect to the Products, maintain a place of business and adequate facilities for this purpose and use prudent business practices at all times. Dealer will at all times maintain such place of business and a display area therein satisfactory to Sanita. Dealer will comply with all of Sanita s guidelines and policies in effect from time to time, including, but not limited to, those relating to Product sales, promotion, display and merchandising. Dealer shall conduct its business in compliance with all applicable local, state and federal laws, rules and regulations. In support of such efforts, Sanita currently makes available to Dealers Manufacturer s Suggested Retail Prices and reasonable quantities of promotional and advertising materials to aid in the sales, promotion and merchandising of Sanita Products. 3. INTERNET SALES: In addition to entering into this Agreement, prior to engaging in any promotion, advertising or sales using Internet-based applications ( E-Commerce Status ), including, but not limited to promotion, advertising or sales via one or more Websites, Social Media or otherwise, Dealer shall first submit Sanita s E-Commerce Application and Policy (in the form attached hereto as Exhibit A) and be approved by Sanita for E-Commerce Status. Sanita reserves the right to reject Dealer for E-Commerce Status in its sole discretion. In no

2 Page 2 of 5 event shall Dealer engage in any such promotion, advertising or sales prior to Sanita s counter-execution of such E-Commerce Application. While this Agreement governs sales of Products generally, nothing herein contain shall be construed as permitting Dealer to sell Products using the Internet or Internet-based applications prior to submission and acceptance of the E-Commerce Application. 4. MAP POLICY: Included in this agreement to protect the pricing integrity of Sanita branded products, all public price advertising must be at or above MSRP price levels as per the conditions set forth in our Minimum Advertised Price (M.A.P) Policy (in the form attached hereto as Exhibit B). Any determinations by Sanita under these enforcement procedures shall be binding upon the violator. 5. WARRANTIES: Sanita may supply written warranties, specifications and instructions (the Provided Warranties ) with certain Products. OTHER THAN AS EXPRESSLY SET FORTH IN ANY PROVIDED WARRANTY, SANITA MAKES NO WARRANTY, REPRESENTATION OR PROMISE, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH PRODUCT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY SANITA. Correction of nonconformities will be Dealer s exclusive remedy in the event of such nonconformity and will constitute fulfillment of all liabilities of Sanita. Dealer shall make no warranty, representation or promise with respect to any Product other than those expressly set forth in the Provided Warranties included with such Product. 6. LIMITATION OF LIABILITY: IN NO EVENT WHETHER ON ACCOUNT OF PRODUCTS FURNISHED HEREUNDER, DELAYS IN DELIVERY THEREOF OR SERVICES PERFORMED UPON OR WITH RESPECT TO SUCH PRODUCTS WILL SANITA BE LIABLE FOR DAMAGES, WHETHER DIRECT, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, DIMINUTION OF VALUE OF THE PRODUCTS, OR CLAIMS OF DEALER S CUSTOMERS FOR DAMAGES, AND DEALER DOES HEREBY INDEMNIFY AND HOLD SANITA HARMLESS FROM AND AGAINST ALL SUCH DAMAGES. SANITA S LIABILITY ON ANY CLAIM WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR OTHERWISE FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, OR FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCT COVERED BY OR FURNISHED UNDER AGREEMENT WITH DEALER WILL IN NO CASE EXCEED THE PURCHASE PRICE ALLOCABLE TO THE PRODUCT OR PORTION THEREOF WHICH GIVES RISE TO THE CLAIM. 7. SANITA MARKS: Certain of the Products may bear Sanita Marks which either belong to Sanita or which Sanita may use by permission of the owner of such marks. Dealer acknowledges and agrees that Sanita is the exclusive owner and/or licensed user of the Sanita Marks, that neither Dealer nor any advertising agency, Web-hosting or Web-design company has any right, title or interest in or to the Sanita Marks, that Dealer shall at no time claim any rights in the Sanita Marks and that Dealer shall at no time infringe, contest or challenge any Sanita Marks, whether by Dealer s advertising or resale of the Products or otherwise. If at any time Dealer acquires any goodwill or reputation in the Sanita Marks, then immediately upon Sanita s request, Dealer agrees, without separate payment or other consideration, to take all actions necessary to assign and transfer any such right to Sanita, and Dealer does hereby assign and transfer any such right to Dealer. Dealer shall not utilize Sanita Marks in a disparaging manner or in any manner which could mislead the public, nor shall Dealer place any goods or likenesses of any goods other than the Products in proximity to any Sanita Marks, whether in advertising (including, without limitation, in print or on the Internet) or in Dealer s business establishments. Neither Dealer, nor any business associated with Dealer (including, but not limited to, advertising agencies, Web-hosting companies and Web-design companies) use any Sanita Marks other than in connection with the solicitation of sales, distribution, advertising and/or promotion of the Products in accordance with this Agreement. At Sanita s request, Dealer will provide Sanita copies of any and all of Dealer s advertising utilizing Sanita Marks. Upon termination of this Agreement, or earlier request by Sanita, Dealer will immediately discontinue use of the Sanita Marks. Dealer s breach of any of its obligations under this Paragraph 6 may subject Dealer to temporary and/or permanent injunctions, damages and/or payment of any costs and reasonable attorneys fees incurred by Sanita and/or the true owner of the Sanita Marks arising out of any such breach. 8. TRANS-SHIPPING POLICIES:

3 Page 3 of 5 Dealer shall only sell Products from store-fronts, Websites and other Internet means approved in writing in advance by Sanita, and Dealer shall not sell, distribute, market, ship or otherwise convey rights in any Products to any merchant, person or company who has not previously been approved by Sanita. Subject to the foregoing, Dealer shall engage in retail sales to end-users only and shall not sell Products to other retailers, wholesalers, distributors, exporters or any person or company with the intention of re-selling the Products. This Paragraph 7 is an essential term of this Agreement, the breach of which shall constitute a total repudiation by such Dealer of this Agreement. 9. CREDIT TERMS: Dealer shall comply with all credit terms implemented from time to time by Sanita ( Credit Terms ). Unless otherwise indicated by Sanita, Sanita s standard terms are 30 DAYS NET with pre-approved credit. Dealer must complete, sign and submit a Sanita Application and Credit Agreement before its credit may be evaluated. Dealers requesting shipment prior to credit approval must pay for Products prior to shipping or arrange for C.O.D. for same. If, in Sanita s sole judgment, the financial condition of Dealer at any time prior to delivery does not justify the terms of payment specified, Sanita may require additional assurance, information, letters of credit, personal guarantees or advance payment as a condition to shipping Products. However, nothing in this Agreement shall be construed to require Sanita to accept, process or delivery Products pursuant to any order, regardless of whether security has been provided to Sanita by Dealer. Sanita reserves the right to establish and/or change credit or payment terms extended to Dealer if, in Sanita sole judgment, such Dealer s financial condition or previous payment record warrants same. 10. PAYMENT TERMS: Upon acceptance of this Agreement, Dealer agrees to make payment in accordance with the schedule and amounts set forth in the invoices provided by Sanita to Dealer and to comply on a continuing basis with the Credit Terms. Each Dealer account must be in good standing at all times, failing which Sanita may place a credit hold on such account. If a credit hold is placed on any Dealer account, Sanita has the right to place all other related accounts of Dealer on hold until all such accounts are brought current. Further, if any Dealer account is placed on credit hold, all orders may be cancelled. Failure on the part of the Dealer to comply with the Credit Terms, pay invoices when due, or the post-dating or bouncing of checks are grounds for non-shipment and shall, in Sanita' sole discretion, cause any outstanding invoices to become immediately due and payable. In addition, a service charge equal to the lesser of one and one-half percent (1½%) per month or the maximum allowable interest by law shall be charged on all overdue amounts. A twenty-five dollar ($25.00) Service Charge will be assessed for each returned check and upon any occurrence of insufficient funds. In the event Sanita incurs expenses on any attempt to collect payment, Dealer will pay, upon demand, all costs, collection fees and other expenses incurred by Sanita, including but not limited to attorneys' fees and costs. It is the Dealer's responsibility to inspect all shipments and to notify Sanita immediately of any claims or invoice discrepancies within 30 days of the invoice date. Sanita will not accept or address any disputes regarding Products or shipment thereof after such 30- day period, and Dealer hereby waives any such dispute if not brought in a timely manner. Deductions from payments to Sanita will not be allowed unless and until a credit memo is issued by Sanita. Any deductions taken by Dealer without Sanita s prior approval will be shown as shortages on account balances. Dealer further understands that any price discounts allowed by Sanita are conditioned upon timely payment in accordance with Sanita invoices, and agrees to pay the full un-discounted price for any merchandise for which full and timely payment is not made in accordance with the invoice terms. 11. TAXES AND FEES: The purchase price of any Product does not include any federal, provincial, state or local property, license, privilege, sales, service, use, excise, value added, gross receipts, or other like taxes which may now or hereafter be applicable to, measured by or imposed upon or with respect to any transaction hereunder, the Products, their purchase, sale, replacement, value or use. Dealer shall reimburse Sanita for any such taxes which Sanita may become liable for or required to pay in connection with Products sold to Dealer. 12. ORDERING AND DELIVERY: Dealer shall bear all freight fees, shipping charges and related insurance costs for orders made under this Agreement. Sanita will make every reasonable effort to ship within a reasonable period of order receipt. Four to eight weeks should be allowed for items not currently in stock; however, Sanita shall not be liable for loss or delays in shipping of Products, including, but not limited to, those resulting from shortages in transportation or manufacturing. Unless otherwise instructed by Dealer, all back-orders are considered valid and will be shipped as merchandise becomes available. All installment deliveries will be separately invoiced and paid for without regard

4 Page 4 of 5 to subsequent deliveries. Sanita reserves the right to determine shipping priority based on any factor, including past payment history. Orders will be shipped F.O.B. Houston, Texas. Every carton will be assessed a non-negotiable handling fee. If a shipment is refused for any reason other than shipper error, a $5.00 per item re-stocking fee, plus shipping costs, will be assessed to the Dealer, and the order will be cancelled. Sanita requires a FOURTEEN (14) DAY cancellation in writing for all future orders that need to be cancelled. If we do not receive this request in writing within such 14-day period, and the order ships, Dealer is responsible for all shipping costs and the restock fees as outlined above. 13. DROP SHIPMENTS: Sanita may agree to drop ship for Dealer, subject to prior approval, which may be withheld in Sanita s sole discretion. In addition to any other standard shipping and handling fees that apply, drop shipments will be assessed a Drop Ship Fee of $5.00 per item. Dealer may request Sanita to advise Dealer in advance of the amount of any such Drop Ship Fee with respect to any particular order; provided, however, that any estimate or quotation, although made reasonably and in good faith, will be and is subject to adjustment based on actual shipping costs and charges that may only be determined once the shipment has been delivered by the carrier. Returned drop ships to Dealer must be processed within thirty (30) days of shipment and will be charged a non-negotiable $5.00 per-item restocking fee. 14. TITLE AND RISK OF LOSS: The Products will remain the personal property of Sanita until fully paid for in good funds, and, if requested by Sanita, Dealer shall execute a security agreement covering the Products sold and perform all acts, including, without limitation, the execution and filing of UCC-1 financing statements, which may be necessary to perfect and assure a security interest in such Products by Sanita. Any agreement with respect to passage of legal title to the Products to the contrary notwithstanding, risk of loss and damage will pass to Dealer, and delivery will be deemed to be complete, upon delivery by Sanita of the Products to any shipper, F.O.B. Houston, Texas. 15. RETURNS: Returns will be accepted by Sanita only for Products deemed to be defective in Sanita s sole discretion. No item may be returned unless the Dealer has first notified Sanita and received a Return Authorization number ( RA# ). The RA# must be clearly displayed on the packaging in which such item is sent, or the return will not be accepted. Dealer will have thirty (30) days after the date the RA# is issued to return the Product to Sanita. All returns, for any reason, must be shipped freight pre-paid. If, at Sanita's discretion, return authorization is given for non-defective merchandise, a $5.00 per item re-stocking fee will be assessed. Such stocking fee will also be assessed for invalid RA# s and for orders that are ready to ship by Sanita but cancelled. If the product is returned in unusable boxes, a $2.50 per item fee will be assessed. Each such item to be returned to Sanita must be properly packaged and wrapped in sturdy shipping cartons such that all Products, and all shoe boxes and other packaging materials in which such Products are shipped, displayed or sold, are in proper condition to be sold as new. If Products and/or packaging materials are not returned in a condition to be sold as new, Sanita, in its sole discretion, may return such Products to Dealer without credit or allow only partial credit. 16. FORCE MAJEURE: Sanita will not be liable for loss, damage, detention or delay attributable to, nor be deemed to be in default as a result of or relating to, events and conditions beyond its reasonable control, or from fire, strike or other concerted action of workers, any act or omission of any governmental authority or of Dealer, compliance with import or export regulations, currency restrictions, insurrection or riot, embargo, delays or shortages in transportation, or inability to obtain labor, material, or manufacturing facilities from usual sources. In the event of delay by Sanita relating to any such cause, the date of delivery will be postponed by such length of time as may be reasonably necessary to compensate for the delay. 17. AMENDMENT, ASSIGNMENT AND TERMINATION: This Agreement contains all understandings and agreements between Sanita and Dealer and supersedes all other communications, documents and agreements between Sanita and Dealer. Sanita may amend this Agreement and the Standard Terms and Conditions of Sale from time to time upon ten (10) days written notice to Dealer. This agreement shall not be assignable by Dealer, in whole or in part, whether by operation of law or otherwise, without the prior written consent of Sanita, which consent may be withheld by Sanita in its sole discretion. Dealer hereby agrees to notify Sanita in writing of any proposed changes in ownership or ownership structure at least thirty (30) days in advance of said changes. This Agreement may be terminated at will, for any reason or no reason, by Sanita upon ten (10) days written notice to Dealer.

5 Page 5 of GENERAL: This Agreement will be governed solely in accordance with the laws of the State of Texas. Dealer agrees that the exclusive and sole venue for any dispute related to or arising in connection with this Agreement shall be Harris County, Texas. If any provision herein or portion thereof shall for any reason be held invalid or unenforceable, such invalidity or un-enforceability shall not affect any other provision or portion thereof. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Sanita and Dealer. Dealer hereby represents that the party executing this Agreement is authorized to enter into this Agreement, that Dealer understands the terms and conditions hereof and has had the opportunity to consult an attorney regarding this Agreement and that Dealer will comply with this Agreement in all respects. This Agreement has been executed & agreed to by signing Sanita s Credit Application and is considered binding from that date forward.