AUTHORIZED RESELLER AGREEMENT
This Authorized Reseller Agreement (this “Agreement”) is between Otter Products, LLC (“Otter Products”) and the undersigned applicant (“Reseller”). Otter Products understands that Reseller has entered into, or intends to enter into, an agreement (the “Authorized Distributor Agreement”) with one or more authorized Otter Products distributor(s) (each, the “Distributor”) pursuant to which Distributor will supply certain products, including, but not limited to, OtterBox branded products and LifeProof branded products (collectively, the “Products”), as may be designated from time to time by Otter Products to Reseller for resale. Otter Products’ initial and continued consent to the relationship contemplated by this Agreement is expressly conditioned on the acceptance of said Agreement by Otter Products. To the extent the provisions of this Agreement contradict or alter the provisions of the Authorized Distributor Agreement, the provisions of this Agreement shall govern the relationship between Otter Products and Reseller.
1. Marketing, Sales and Reporting
(a) Marketing and Sale of Products:
(i) Reseller shall use its best efforts to promote Product in the distribution channel(s) and/or territory(ies) defined in the Authorized Distributor Agreement. Reseller shall sell or distribute Product obtained only from a Distributor authorized by Otter Products to supply such Product to Reseller for Reseller’s resale to its customers. Reseller shall not during the term of this Agreement contact Otter Products’ suppliers, or any third party, for the purpose of manufacturing or obtaining any product similar to the Product.
(ii) Reseller shall advertise the Product for a price that is within the Minimum Advertised Price Policy for all OtterBox branded product (“OtterBox MAP Policy”) and within the Minimum Advertised Price Policy for all LifeProof branded product (“LifeProof MAP Policy”) (the OtterBox Map Policy and the LifeProof Map Policy together referred to herein as the “MAP Policies”) established by Otter Products unilaterally from time to time. The MAP Policies are subject to amendment or modification at any time by Otter Products unilaterally and in its sole discretion.
(iii) RESELLER SHALL NOT PROMOTE, MARKET, ADVERTISE, OFFER TO SELL OR SELL ANY PRODUCT ON OR THROUGH ANY ONLINE MARKETPLACE OR AUCTION SERVICE (E.G., EBAY, AMAZON MARKETPLACE OR LIKE WEBSITES), EXCEPT AS MAY BE EXPRESSLY CONSENTED TO BY OTTER PRODUCTS IN WRITING AND IN ADVANCE, AND IT BEING UNDERSTOOD THAT OTTER PRODUCTS MAY WITHDRAW ITS CONSENT AT ANY TIME.
(iv) Reseller shall observe all directions and instructions given to it by Otter Products in relation to the promotion and advertisement of the Product including, but not limited to, any brand guidelines (the “Brand Guidelines”) as provided by Otter Products to Reseller from time to time. Reseller shall not make any written statement as to the quality or manufacture of the Product or make any promises or guarantees with reference to the Product other than those expressly set forth in promotional material supplied by Otter Products. Reseller shall have no right, power or authority in any way to bind Otter Products to any contract or obligation, express or implied.
(v) Reseller understands that Otter Products intends to hold Reseller liable for damages caused to Otter Products due to product diversion resulting from the purchase of the Product by Reseller from the Authorized Distributor. It is Otter Products’ policy (the “Anti-Diversion Policy”) that no Product 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, including the U.S. Export Administration Regulations. Reseller shall not sell any Product to any person or entity that Reseller has reason to believe has the intention of reselling the goods, 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 Otter Products may periodically review, to prevent diversion of Product and fulfill its obligations set forth in this Section 1(a)(v). Reseller shall make reasonable efforts to identify violations or potential violations of the Anti-Diversion Policy. Reseller shall make reasonable efforts to educate the customers to which it sells the Product regarding the Anti-Diversion Policy. Reseller agrees to ensure that customers to which it sells Product do not directly or indirectly advertise or solicit sales or sell the Product via mail or on the Internet. In addition, if Reseller has obtained written approval from Otter Products that it can sell the Product on its own individual website, Reseller shall ensure that it structures its fulfillment system in such a manner that no more than ten (10) individual units of Product are sold to the same customer, to the same address, or charged to the same credit card in a ninety (90) day period without Otter Products’ written consent. Reseller agrees to compensate Otter Products for reasonable damages for any violation of this Section 1(a)(v), and also to reimburse Otter Products for the repurchase of Product by Otter Products from any entity to which or through which Reseller or its customers have diverted the Product in violation of the Anti-Diversion policy.
(vi) In connection with Reseller’s activities under this Agreement and the Authorized Distributor Agreement, Reseller shall comply with: (A) all applicable laws, rules, and regulations, including, but not limited to, the U.S. Consumer Product Safety Act ("CPSA") and the Canada Consumer Product Safety Act ("CCPSA"), (B) all terms and conditions of the Authorized Distributor Agreement, and (C) appropriate ethical standards.
(b) Reports: Upon Otter Products’ request, Reseller shall submit to Otter Products a written report detailing (i) purchases of Product by Reseller from the Distributor covering the period of time requested by Otter Products, (ii) sales of Product to Reseller’s customers covering the period of time requested by Otter Products, and (iii) any other information Otter Products may require from time to time. Such reports shall be considered Confidential Information of Reseller and otherwise protected under Section 2(c) of this Agreement.
(c) Indemnity: Reseller agrees, at its own cost, to indemnify, defend and hold harmless Otter Products, its affiliates, and any and all other entities in the Otter Products group of companies, 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 to Reseller’s customers.
2. Proprietary Rights
(a) Brand Guidelines: Reseller agrees that:
(i) Only photos provided by Otter Products (“Product Photos”) may be used to display the Product. Product Photos must retain natural proportions. Reseller shall not edit the Product Photos in any way, other than sizing.
(ii) Reseller shall ensure that any data, Product Photos and Product descriptions displayed by Reseller: (1) are the most-current versions of such provided by Otter Products or the Distributor, and (2) comply with the Brand Guidelines.
(iii) Whenever referring to the Product, Reseller must use the full proper Product name. Specifically, OtterBox branded products shall be displayed only as “OtterBox” (i.e. OtterBox’s brand must be displayed only with a capital “O”, a capital “B”, and no spaces) and LifeProof branded products shall be displayed only as “LifeProof” (i.e. LifeProof’s brand must be displayed only with a capital “L”, a capital “P”, and no spaces).
(b) Use of Marks: During the term of this Agreement only, Otter Products grants Reseller a non-exclusive, non-transferable, non-sublicensable license to use Otter Products’ logos, trademarks, and trade names, including any unique “Authorized Reseller” logos that Otter Products may develop (the “Marks”): (i) in connection with promotional materials provided by Otter Products and (ii) on the Product, but only as set forth on the Product at the time of delivery to Reseller. Reseller agrees to cooperate with Otter Products in monitoring Reseller’s use of the Marks and agrees to supply Otter Products with specimens of, and access to, its uses of the Marks upon request. Reseller shall use each Mark in accordance with any 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 Otter Products.
(c) Serialization: Reseller agrees that, upon request by Otter Products, it will follow Otter Products’ serialization scanning policy as is provided from time to time. The serial numbers and barcodes on Products will ensure that Otter Products can identify which factory a Product came from, when it came from that factory, and the stages of the distribution channel through which the Product was sold. Minimum requirements are that Reseller be able to scan Products at the retail unit, inner carton and master carton level.
(d) Confidentiality: Otter Products and Reseller each agree and undertake that during the term of this Agreement and thereafter it 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 this 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. To the extent necessary to implement the provisions of this 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 them.
3. Duration of Agreement
(a) Term: 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 this Agreement hereof.
(b) Termination for Convenience: Either party may terminate this Agreement without cause upon thirty (30) days’ prior written notice to the other party.
(c) Termination for Breach: Otter Products may at any time terminate this Agreement with immediate effect, upon notice to Reseller, if Reseller materially breaches any of the term and conditions of this Agreement as determined by Otter Products in its sole discretion.
(d) Effect of Termination: Upon termination or expiration of this Agreement, Otter Products, at its option, may repurchase any or all Product then in Reseller’s possession at prices not greater than the prices paid by Reseller for such Product, provided, however that any such repurchase of Product by Otter Products shall be contingent on Reseller’s shipment of the Product (at Reseller’s expense) to Otter Products’ designated location in the Territory, and on verification by Otter Products that the Product is in its original packaging and in new and immediately salable condition. The terms and conditions of Sections 1(c), 2(d), 3(d), 4(a)(ii), 4(b) and 5 shall survive any termination or expiration of this Agreement. In addition, in the event of any expiration of this Agreement or termination of this Agreement pursuant to Section 3(b), all rights and obligations of the parties hereunder shall survive with respect to any order for Products accepted by the Distributor prior to such expiration or termination.
4. Warranty and Liability
(i) Otter Products warrants Product in accordance with Otter Products’ standard Product warranty issued from time to time by Otter Products (the “Product Warranty”). Otter Products will repair or replace any Product that does not comply with the Product Warranty. The Product Warranty does not cover defects or damage caused to Product by Distributor, Reseller, or any third party. If it is determined that any defect in Product is not the fault of Otter Products, or such defect or damage was caused by or attributable to Reseller, its customers, Distributor, or any third party, Reseller agrees to pay all charges associated with each such repair or replacement, including without limitation all charges for labor, materials and shipping.
(ii) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4(a)(i), OTTER PRODUCTS 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 UNITS OR PARTS OF SUCH PRODUCT.
(b) Liability: IN NO EVENT SHALL OTTER PRODUCTS, ITS AFFILIATES, OR ANY OTHER ENTITY IN THE OTTER PRODUCTS GROUP OF COMPANIES, 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 OTTER PRODUCTS, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF. THE AGGREGATE LIABILITY OF OTTER PRODUCTS, 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 OTTER PRODUCTS FROM THE DISTRIBUTOR IN CONNECTION WITH SALES MADE TO RESELLER IN THE THREE (3) MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCES GIVING RISE TO THE LIABILITY.
(c) CCPSA: Reseller shall notify Otter Products immediately and, in any event, within one day of becoming aware of any “incident”, as such term is defined in the CCPSA, occurring with respect to the Product. Reseller shall deliver to Otter Products (i) all information in its control regarding the incident related to such product, and (ii) any draft written reports required to be delivered to the Minster of Health in accordance with the CCPSA ((i) and (ii), the “CCPSA Materials”), in each case prior to such CCPSA Materials being delivered to the Minister of Health in accordance with the CCPSA. Reseller shall, to the greatest extent permitted by law, give Otter Products the opportunity to review, propose revisions to and protect any CCPSA Materials that include Confidential Information in accordance with Section 2(d) prior to delivering such CCPSA Materials to the Minister of Health.
5. General Provisions
(a) Governing Law; Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, United States of America, without giving effect to the principles of conflicts of law of any jurisdiction. The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be the state or federal courts in Colorado and the parties expressly submit to the jurisdiction of said courts.
(b) Assignment; Sub-distributors: Reseller may not assign its rights, duties or obligations under this Agreement, in whole or in part, without Otter Products’ prior written consent. Any prohibited assignment shall be null and void. All terms and conditions of this Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the parties. Reseller shall not sell the Product through a sales agent or to a sub-distributor or reseller.
(c) Notices: Notices hereunder must be in writing, except as otherwise stipulated herein, and given to the other party by certified first class mail, postage prepaid and return receipt requested, or by air courier to the mailing address set forth above for notices sent to Reseller, or to 209 South Meldrum Street, Fort Collins, Colorado, 80521, USA, Attn.: General Counsel, for notices sent to Otter Products, or to such other address as either party may designate by providing notice as set forth herein. Notices shall be effective when received.
(d) 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. This Agreement may not be amended or waived except by a written instrument signed by both parties. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability shall affect only that provision and shall not make any other provision of this Agreement invalid or unenforceable, and the unenforceable provision shall be modified, amended or limited only to the extent necessary to render it valid and enforceable.