By participating in Frenchiestore’s Wholesale Program, you hereby agree to the following terms and conditionscontained within this Agreement entered into by and between Frenchiestore LLC., havingits principal place of business at2550 Northwest Parkway, Elgin, IL 60124 (“Supplier”) and yourbusiness, organization, person or other entity (“Reseller”, and together with Supplier, the “Parties”, and each, a “Party”).
RECITALSWHEREAS, Supplier is in the business of manufacturing and selling Health Conscious Pet Products (the“Products”);WHEREAS, Reseller is in the business of reselling products that are similar in kind to the Products;WHEREAS, Reseller wishes to purchase the Products from Supplier and resell these Products to End Users (asdefined below), subject to the terms and conditions of this Agreement; andWHEREAS, Supplier wishes to sell the Products to Reseller and appoint Reseller as a non-exclusive reseller underthe terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree asfollows:
ARTICLE IDEFINITIONSCapitalized terms have the meanings set out in this Section, or in the Section in which they first appear in thisAgreement.“Affiliate”of a Person means any other Person that directly or indirectly, through one or more intermediaries,Controls, is Controlled by, or is under common Control with, this Person.“Control”(and with correlative meanings, the terms “Controlled by” and “under common Control with”) means,regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of themanagement or policies of another Person, whether through the ownership of voting securities, by contract, orotherwise.“Defective Goods” means Products that do not comply with the Limited Warranties set forth in Section 13.01.“End User”means each final purchaser that has acquired a Product directly from Reseller.“Excess Product”means a Product that, when counted together with all other Products having received byReseller under the same Purchase Order, is in excess of the quantities of the Products ordered under that PurchaseOrder.“Intellectual Property Rights”means all industrial and other intellectual property rights comprising orrelating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by anyauthorized private registrar or any federal, state, local or foreign government or political subdivision, or any agency ofsuch government or political subdivision“Governmental Authority”), web addresses, web pages, website, and URLs; (d)works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrightsand copyrightable works, software and firmware, data, data files, and databases and other specifications anddocumentation; (e) Trade Secrets; and (f) all other intellectual property rights, and all rights, interests, and protectionsthat are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, ineach case whether registered or unregistered and including all registrations and applications for, and renewals orextensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.“Patents”means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rightsand any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, pettypatents, and patent utility models).“Person”means any individual, partnership, corporation, trust, limited liability entity, unincorporatedorganization, association, Governmental Authority or any other entity.“Personnel”means agents, employees, or subcontractors engaged or appointed by Supplier or Reseller.“Representatives”means a Party’s Affiliates, employees, officers, managers, directors, governors, partners,shareholders, members, owners, agents, attorneys, third-party advisors, successors, and permitted assigns.“Supplier’s Intellectual Property Rights”means all Intellectual Property Rights owned by or licensed toSupplier.“Supplier’s Trademarks”means all Trademarks owned by or licensed to Supplier.“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names,brand names, logos, trade dress, corporate names, and domain names and other similar designations of source,sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whetherregistered or unregistered and including all registrations and applications for, and renewals or extensions of, theserights and all similar or equivalent rights or forms of protection in any part of the world.“Trade Secrets”means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rightstherein.“US”means the United States of America, including its territories, possessions, and military bases.
ARTICLE IINON-EXCLUSIVE APPOINTMENTSupplier, in its sole and absolute discretion, may accept or reject Reseller’s request to resell Frenchiestore’sProducts. If Supplier rejects this request, this Agreement shall be automatically terminated and of no further force oreffect. Upon acceptance of the request, Supplier hereby appoints Reseller, and Reseller accepts the appointment, toact as a non-exclusive reseller of Products to End Users, provided that Reseller shall only sell the Products at Reseller’sphysical retail stores in the US and solely in accordance with the terms and conditions of this Agreement. For purposesof clarity, Reseller shall not resell any Products online via the Internet or any other online means. Supplier may, in itssole and absolute discretion, sell the Products to any other Person, including resellers, retailers, and End Usersanywhere in the world.
ARTICLE IIINO FRANCHISE OR BUSINESS OPPORTUNITY AGREEMENTThe Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed orconstructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity betweenSupplier and Reseller. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or createan obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of theirpersonnel under this Agreement. The relationship created hereby between the parties is solely that of Supplier andReseller. If any provision of this Agreement is deemed to create a franchise relationship between the parties, thenSupplier may immediately terminate this Agreement.
ARTICLE IVGENERAL RESELLER PERFORMANCE OBLIGATIONSSECTION 4.01GENERAL RESELLER PERFORMANCE OBLIGATIONS.The Reseller shall, in good faith and atits own expense:(a)market, advertise, promote and resell Products and conduct business in a manner thatreflects favorably at all times on Products and the good name, goodwill, and reputation of Supplier;(b)promptly Notify Supplier of and address and investigate any complaint or adverse claimabout any Product of which Reseller becomes aware;(c)observe all directions, instructions, policies and procedures given to it by Supplier; and(d)upon request by Supplier, provide Supplier with a current and accurate list of all of its retailselling locations or outlets, including any online websites.
SECTION 4.02REPORTING AND RECORD KEEPING.The Reseller shall, at its own expense, maintain books,records and accounts of all transactions and activities covered by this Agreement and permit full examination thereofby Supplier and its Representatives in accordance with
ARTICLE X.SECTION 4.03AUTHORITY TO PERFORM UNDER THIS AGREEMENT.Each Party shall, at its own expense,obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business inaccordance with this Agreement.
SECTION 4.04PROHIBITED ACTS.Notwithstanding anything to the contrary in this Agreement, neither Reseller nor Reseller Personnel shall:(a)make any representations, warranties, guarantees, indemnities, similar claims, or othercommitments:(i)actually, apparently, or ostensibly on behalf of Supplier, or(ii)to any End User regarding the Products, which representations, warranties,guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent withany then-existing representations, warranties, guarantees, indemnities, similar claims, or othercommitments in this Agreement or any written documentation provided by Supplier to Reseller;(b)engage in any unfair, competitive, misleading, or deceptive practices respecting Supplier,Supplier’s Trademarks or the Products, including any product disparagement or “bait-and-switch” practices;(c)separate any accessories sold, bundled, or packaged with any Product from the Product, orremove or modify the contents or documentation of or related to the Product or accessories;(d)sell or offer to sell any of the Products or other Supplier-branded products, other than theProducts purchased by Reseller from Supplier; or(e)sell, either directly or indirectly, or assign or transfer, any Products to any Person whenReseller knows or has reason to suspect that the Person may resell any or all of the Products to a third party,including any third party reseller or distributor; or(f)promote, market, sell, or distribute Products using promotional information and material,unless the promotional information or material was provided by Supplier.
ARTICLE VORDERS PROCEDURESECTION 5.01PURCHASE ORDER.Upon acceptance of Reseller’s application to resell Products,Resellershall place orders for Products via Supplier’s email (email@example.com) attached with "Order form" and "Credit Card Authorization Form" (each a “Purchase Order”);provided, however, that each Purchase Order shall be for no less than$200 minimum per order. By placing a Purchase Order,Reseller makes an offer to purchase Products under the terms and conditions of this Agreement and the applicablePurchase Order, and on no other terms.
SECTION 5.02SUPPLIER’S RIGHT TO ACCEPT OR REJECT PURCHASE ORDERS.Supplier may, in its solediscretion, accept or reject any Purchase Order. No Purchase Order is binding on Supplier unless accepted by Supplierby email confirmation to Reseller or by shipping the Products purchased under and applicable Purchase Order to theReseller.
SECTION 5.03CANCELLATION OF PURCHASE ORDERS.Supplier may, in its sole discretion, withoutliability or penalty, cancel any Purchase Order placed by Reseller and accepted by Supplier, in whole or in part, ifSupplier reasonably determines that Reseller is in violation of its payment obligations under or has breached or is inbreach of this Agreement. Upon cancellation of a Purchase Order pursuant to this Section, Supplier shall refund thePrice paid to Supplier prior to cancellation less any direct and indirect costs incurred or accrued by Supplier prior tocancellation of the Purchase Order.
ARTICLE VISHIPMENT AND DELIVERYSECTION 6.01SHIPMENT DELIVERY, TITLE, RISK OF LOSS.When placing a Purchase Order, Reseller shallprovide the delivery location for the Products (each a “Delivery Point”) and shall select the method of shipment for, theProducts, using Supplier’s standard methods for packaging and shipping the Products. Supplier may, in its solediscretion, without liability or penalty, make partial shipments of Products to Reseller. All Prices are FOB Delivery Point.Title and risk of loss to Products shipped under any Purchase Order passes to Reseller on Supplier’s delivery of suchProducts to the Delivery Point.
SECTION 6.02LATE DELIVERY.Any time quoted for delivery is an estimate only; provided, however, thatSupplier shall use commercially reasonable efforts to deliver all Products on or before the estimated delivery date.Subject to Section 15.19, Supplier is not liable for or in respect of any loss or damage arising from any delay in filling anyorder, failure to deliver or delay in delivery. No delay in the shipment or delivery of any Product relieves Reseller of itsobligations under this Agreement, including accepting delivery of any remaining installment or other orders ofProducts.
SECTION 6.03INSPECTION.Reseller shall inspect Products received under this Agreement within 14 daysof receipt (the“Inspection Period”) of the Products and either accept or, if any Products do not conform to thePurchase Order or are Defective Goods (collectively, the “Nonconforming Goods”), reject the Nonconforming Goods.Reseller will be deemed to have accepted the Products unless it Notifies Supplier in writing of any NonconformingGoods during the Inspection Period and furnishes written and photographic evidence or other documentation asreasonably required by Supplier. If Reseller timely Notifies Supplier of any Nonconforming Goods, Supplier shall replacethe Nonconforming Goods with conforming Products or refund the Price for the Nonconforming Goods at itsdiscretion. Supplier shall use its best efforts to promptly ship to Reseller, at Suppliers expense and risk of loss, thereplaced Products. Reseller shall ship, at Supplier’s expense and risk of loss, all Nonconforming Goods and ExcessProducts to Supplier’s facility as provided by written communications from a member of Supplier’s Customer ServiceTeam, unless Supplier otherwise instructs Reseller to destroy any such Products. Reseller acknowledges and agrees thatthe remedies set out in Section 6.03 are Reseller’s exclusive remedy for the delivery of Nonconforming Goods.
SECTION 6.04LIMITED RIGHT OF RETURN.Except as provided under Section 6.03, Section 13.02 andSection 13.04, all sales of Products to Reseller under this Agreement are made on a one-way basis and Reseller has noright to return Products purchased under this Agreement.
ARTICLE VIIPRICE AND PAYMENTSECTION 7.01PRICE.Reseller shall purchase the Products from Supplier at the Supplier’s prices for suchProducts set out on Supplier’s website in effect when the Supplier accepts the related Purchase Order (“Prices”).Supplier’s Prices are subject to change at any time and from time to time in Supplier’s sole discretion and withoutNotice to Reseller.
SECTION 7.02SHIPPING CHARGES AND TAXES.Reseller shall pay for shipping charges set forth in thePurchase Order. All Prices are exclusive of, and the Reseller shall be responsible for, all sales, use, and excise taxes, andany other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amountspayable by Reseller under this Agreement.
SECTION 7.03PAYMENT TERMS.Reseller shall pay for the Products in full upon placement of a PurchaseOrder by credit card or as otherwise approved by Supplier.
ARTICLE VIIIRESALE OF THE PRODUCTSSECTION 8.01PRICE.Reseller establishes its own resale prices and terms regarding products it sells,including the Products. Reseller acknowledges that it has received a copy and has reviewed Supplier’s Unilateral PricingPolicy.
ARTICLE IXINTELLECTUAL PROPERTY RIGHTSSECTION 9.01OWNERSHIP.Subject to the express rights and licenses granted by Supplier in thisAgreement, Reseller acknowledges and agrees that:(a)any and all Supplier’s Intellectual Property Rights are the sole and exclusive property ofSupplier or its licensors;(b)Reseller shall not acquire any ownership interest in any of Supplier’s Intellectual PropertyRights under this Agreement;(c)any goodwill derived from the use by Reseller of Supplier’s Intellectual Property Rightsinures to the benefit of Supplier or its licensors, as the case may be;(d)if Reseller acquires any Intellectual Property Rights in or relating to any product (includingany Product) purchased under this Agreement (including any rights in any Trademarks, derivative works orpatent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and arehereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by eitherParty; and(e)Reseller shall use Supplier’s Intellectual Property Rights solely for the purposes ofperforming its obligations under this Agreement and only in accordance with this Agreement and theinstructions of Supplier.
SECTION 9.02PROHIBITED ACTS.Reseller shall not(a)take any action that interferes with any of Supplier’s rights in or to Supplier’s IntellectualProperty Rights, including Supplier’s ownership or exercise thereof;(b)challenge any right, title, or interest of Supplier in or to Supplier’s Intellectual PropertyRights;(c)make any claim or take any action adverse to Supplier’s ownership of Supplier’s IntellectualProperty Rights;(d)register or apply for registrations, anywhere in the world, for Supplier’s Trademarks or anyother Trademark that is similar to Supplier’s Trademarks or that incorporates Supplier’s Trademarks in whole orin confusingly similar part;(e)use any mark, anywhere, that is confusingly similar to Supplier’s Trademarks;(f)engage in any action that tends to disparage, dilute the value of, or reflect negatively on theproducts purchased under this Agreement (including Products) or any Supplier Trademark;(g)misappropriate any of Supplier’s Trademarks for use as a domain name without priorwritten consent from Supplier; and(h)alter, obscure, or remove any of Supplier’s Trademarks or trademark or copyright notices orany other proprietary rights notices placed on the products purchased under this Agreement (includingProducts), marketing materials, or other materials that Supplier may provide.
SECTION 9.03NO CONTINUING RIGHTS.On termination of this Agreement, Reseller shall immediatelycease all display, advertising, promotion, and use of all of Supplier’s Trademarks and shall not thereafter use, advertise,promote, or display any trademark, trade name, or product designation or any part thereof that is similar to orconfusing with Supplier’s Trademarks or with any trademark, trade name, or product designation associated withSupplier or any Product.
ARTICLE XAUDIT RIGHTSSECTION 10.01AUDIT RIGHTS.On reasonable request, during the Term and within one year aftertermination of this Agreement, Supplier may audit Reseller’s files relating to its sales of Products. Supplier may conductany audit under this Section 10.01 at any time during regular business hours but no more frequently than semi-annually.
ARTICLE XITERM, TERMINATIONSECTION 11.01TERM.The term of this Agreement commences on the date of Supplier’s acceptance of theReseller’s application to resell Products and continues until either Party provides written notice of termination to theother Party (the“Term”, and shall also include any Post-Term Resale Period). For purposes of clarity, either Party mayterminate this Agreement at any time and for any reason or for no reason.
SECTION 11.02EFFECT OF TERMINATION.(a)Termination of this Agreement does not affect any rights or obligations that:(i)are to survive the expiration or earlier termination of this Agreement under Section15.03; or(ii)were incurred by the Parties before the expiration or earlier termination; or(iii)under Purchase Orders that have been accepted by Supplier; provided that if aParty terminates this Agreement because the other Party has either (A) breached any provision ofthis Agreement, or (B) becomes insolvent or files, or has filed against it, a petition for voluntary orinvoluntary bankruptcy or under any other insolvency law, makes or seeks to make a generalassignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee,receiver, or customer for a substantial part of its property, or is generally unable to pay its debts asthey become due; then such termination shall automatically terminate all outstanding PurchaseOrders.(b)Upon termination of this Agreement, Reseller shall promptly:(i)cease to represent itself as Supplier’s authorized reseller regarding the Products,and shall otherwise desist from all conduct or representations that might lead the public to believethat Reseller is authorized by Supplier to sell the Products;(ii)return to Supplier all documents and tangible materials (and any copies)containing, reflecting, incorporating or based on Supplier’s Confidential Information;(iii)permanently erase all of Supplier’s Confidential Information from its computersystems, except for copies that are maintained as archive copies on its disaster recovery backupsystems, its information technology backup systems, or both. Reseller shall destroy any such copieson the normal expiration of its backup files; and(iv)certify in writing to Supplier that it has complied with the requirements of thisSection 11.02.(c)The Party terminating this Agreement shall not be liable to the other Party for any damageof any kind (whether direct or indirect) incurred by the other Party by reason of the termination of thisAgreement.
SECTION 11.03POST-TERM RESALE PERIOD.Upon termination of this Agreement, except for terminationby Supplier for a material breach of this Agreement, Reseller may, in accordance with the applicable terms andconditions of this Agreement, sell off its existing inventories of Products for a period of 6 months following the last dayof the Term (the“Post-Term Resale Period”).
ARTICLE XIICONFIDENTIALITYSECTION 12.01PROTECTION OF CONFIDENTIAL INFORMATION.From time to time during the Term,Supplier (as “Disclosing Party”) may disclose or make available to Reseller (as “Receiving Party”) information about itsbusiness affairs, goods and services, confidential information, and materials comprising or relating to IntellectualProperty Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; suchinformation, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, andwhether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information”hereunder. Confidential Information excludes information that, at the time of disclosure and as established bydocumentary evidence:(a)is or becomes generally available to and known by the public other than as a result of,directly or indirectly, any breach of this ARTICLE XII by Receiving Party or any of its Representatives;(b)is or becomes available to Receiving Party on a non-confidential basis from a third-partysource, provided that such third party is not and was not prohibited from disclosing such ConfidentialInformation;(c)was known by or in the possession of Receiving Party or its Representatives before beingdisclosed by or on behalf of Disclosing Party;(d)was or is independently developed by Receiving Party without reference to or use of, inwhole or in part, any of Disclosing Party’s Confidential Information; or(e)must be disclosed under applicable law.Receiving Party shall, for so long as such Confidential Information retained thecharacteristic of Confidential Information:(i)protect and safeguard the confidentiality of Disclosing Party’s ConfidentialInformation with at least the same degree of care as Receiving Party would protect its ownConfidential Information, but in no event with less than a commercially reasonable degree of care;(ii)not use Disclosing Party’s Confidential Information, or permit it to be accessed orused, for any purpose other than to exercise its rights or perform its obligations under thisAgreement; and(iii)not disclose any such Confidential Information to any Person, except to ReceivingParty’s Representatives who must know the Confidential Information to assist Receiving Party, or acton its behalf, to exercise its rights or perform its obligations under this Agreement.Receiving Party shall be responsible for any breach of this ARTICLE XII caused by any of its Representatives.The provisions of this ARTICLE XII shall survive termination or expiration of this Agreement for any reason.In the event of any conflict between the terms and provisions of this ARTICLE XII and those of any otherprovision in this Agreement, the terms and provisions of this ARTICLE XII will prevail.
ARTICLE XIIIREPRESENTATIONS AND WARRANTIESSECTION 13.01RESELLER REPRESENTATIONS AND WARRANTIES.Reseller represents and warrants toSupplier that:(a)it is duly organized, validly existing and in good standing in the jurisdiction of its formation;(b)it has the full right, power and authority to enter into this Agreement and to perform itsobligations under this Agreement;(c)the execution of this Agreement by its Representative whose signature is set out at the endhereof has been duly authorized by all necessary corporation action; and(d)it is in, and throughout the Term will continue to be in, compliance with all laws applicableto this Agreement, the Products and the operation of its business.
SECTION 13.02LIMITED PRODUCTS WARRANTY.During the Inspection Period and subject to theprovisions of Section 13.03, Section 13.04, and Section 13.05, Supplier warrants that the Products are new and will be freefrom significant defects in material and workmanship (“Limited Warranties”). Reseller shall not provide any warrantyregarding any Product other than the Supplier warranty described in this Section 13.02.
SECTION 13.03WARRANTY LIMITATIONS.Limited Warranties do not apply where the Product has beensubjected to abuse, misuse, neglect, negligence, accident, or use contrary to any instructions issued by Supplier or hasbeen altered by Persons other than Supplier.
SECTION 13.04EXTENT OF LIABILITY.During the Inspection Period, regarding any Defective Goods,Reseller has no right to return for repair, replacement, credit, or refund any Product except as set out in this Section 13.Reseller shall not service, repair, modify, alter, replace, or otherwise change any Product, in whole or in part, either itselfor by or through any third party.
THIS SECTION 13.04 SETS FORTH RESELLER’S SOLE REMEDY AND SUPPLIER’S ENTIRELIABILITY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE PRODUCTS.SECTION 13.05WARRANTIES DISCLAIMER, NON-RELIANCE.EXCEPT FOR THE LIMITED EXPRESSWARRANTIES DESCRIBED IN SECTION 13.01 AND SECTION 13.02, (A) NEITHER SUPPLIER NOR ANY PERSON ONSUPPLIER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTYWHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULARPURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OROTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOTRELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SUPPLIER, OR ANY OTHER PERSON ON SUPPLIER’SBEHALF, EXCEPT AS SPECIFICALLY DESCRIBED IN SECTION 13.01 AND SECTION 13.02 OF THIS AGREEMENT.ARTICLE XIVLIMITATION OF LIABILITYSECTION 14.01NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES.IN NO EVENT IS SUPPLIEROR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE ORENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TOANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B)WHETHER OR NOT RESELLER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OREQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDINGTHE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.SECTION 14.02MAXIMUM LIABILITY FOR DAMAGES.IN NO EVENT SHALL SUPPLIER’S AGGREGATELIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACHOF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID ANDAMOUNTS ACCRUED BUT NOT YET PAID TO SUPPLIER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIODPRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE RESELLER’SREMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
ARTICLE XVMISCELLANEOUSSECTION 15.01FURTHER ASSURANCES.On a Party’s reasonable request, the other Party shall, at its solecost and expense, execute and deliver all such further documents and instruments, and take all such further acts,reasonably necessary to give full effect to this Agreement.
SECTION 15.02ENTIRE AGREEMENT.(a)This Agreement, including and together with related exhibits, schedules, attachments, andappendices, together with each Purchase Order, constitutes the sole and entire agreement of the Parties withrespect to the subject matter contained herein and therein, and supersedes all prior and contemporaneousunderstandings, agreements, representations, and warranties, both written and oral, regarding such subjectmatter.(b)Without limitation of anything contained in Section 15.02(a), each Party acknowledges thatexcept for the representations and warranties contained herein, neither Party nor any other Person has reliedon any other express or implied representation or warranty, either written or oral, on behalf of the Party,including any representation or warranty arising from statute or otherwise in law.
SECTION 15.03FURTHER ASSURANCES.Subject to the limitations and other provisions of this Agreement:(a)the representations and warranties of the Parties contained herein and related exceptions,limitations, or qualifiers survive the expiration or earlier termination of this Agreement for a period of 12months after the expiration or termination; and(b)any other provision that, to give proper effect to its intent, should survive such expiration ortermination, survive the expiration or earlier termination of this Agreement for the period specified therein, orif nothing is specified for a period of 12 months after expiration or termination.Notwithstanding any right under any applicable statute of limitations to bring a claim, no lawsuit or otheraction based on or arising in any way out of this Agreement may be brought by either Party after the applicable survivalperiod’s expiration; provided, however, that the foregoing limitation does not apply to the collection of any amountsdue to Supplier under the Agreement; and provided, further, that any claims asserted in good faith with reasonablespecificity and in writing by Notice before the applicable survival period’s expiration is not thereafter barred by therelevant period’s expiration, and these claims survive until finally resolved.
SECTION 15.04NOTICES. All notices, requests, consents, claims, demands, waivers, and othercommunications under this Agreement (each, a “Notice” and with the correlative meaning, “Notify”) must be in writingand addressed to the other Party at its address set out in the Preamble (or to any other address that the receiving Partymay designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must bedelivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case,return receipt requested, postage prepaid). Notwithstanding the foregoing, Notice given by email to the WholesaleProgram Manager of Supplier or to the email address provided by Reseller in the Wholesale Application satisfies therequirements of this Section 15.04. Except as otherwise provided in this Agreement, a Notice is effective only (a) onreceipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
SECTION 15.05INTERPRETATION.For purposes of this Agreement: (a) the words “include,” “includes”, and“including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words“herein,” “hereof,” “hereby,” “hereto”, and “hereunder” refer to this Agreement as a whole; (d) words denoting the singularhave a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include allgenders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules,attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to,this Agreement; (y) to an agreement, instrument, or other document means the agreement, instrument, or otherdocument as amended, supplemented and modified from time to time to the extent permitted by the provisionsthereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislationthereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to anypresumption or rule requiring construction or interpretation against the Party drafting an instrument or causing anyinstrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral partof this Agreement to the same extent as if they were set out verbatim herein.
SECTION 15.06HEADINGS. The headings in this Agreement are for reference only and do not affect theinterpretation of this Agreement.
SECTION 15.07SEVER ABILITY.If any term or provision of this Agreement is invalid, illegal, or unenforceablein any jurisdiction, such invalidity, illegality, or unenforce ability does not affect any other term or provision of thisAgreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determinationthat any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify thisAgreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplatedhereby be consummated as originally contemplated to the greatest extent possible.
SECTION 15.08AMENDMENT AND MODIFICATION. No amendment to or modification of this Agreement iseffective unless it is in writing, identified as an amendment to this Agreement and signed by an authorizedRepresentative of each Party.
SECTION 15.09WAIVER.(a)No waiver under this Agreement is effective unless it is in writing and signed by anauthorized representative of the Party waiving its right.(b)Any waiver authorized on one occasion is effective only in that instance and only for thepurpose stated, and does not operate as a waiver on any future occasion.(c)None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege,or condition arising from this Agreement:(i)any failure or delay in exercising any right, remedy, power, or privilege or inenforcing any condition under this Agreement; or(ii)any act, omission, or course of dealing between the Parties.
SECTION 15.10CUMULATIVE REMEDIES.All rights and remedies provided in this Agreement arecumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise ofany other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreementbetween the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Reseller’s rightsunder Section 6.02, Section 6.03, and Section 13.04 are the Party’s exclusive remedies for the events specified therein.
SECTION 15.11EQUITABLE REMEDIES. Each Party acknowledges and agrees that (a) a breach orthreatened breach by such Party of any of its obligations under ARTICLE XII would give rise to irreparable harm to theother Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or athreatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rightsand remedies that may be available to such Party at law, at equity, or otherwise in respect of this breach, be entitled toequitable relief, including a temporary restraining order, an injunction, specific performance and any other relief thatmay be available from a court of competent jurisdiction, without any requirement to post a bond or other security, andwithout any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. EachParty agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by acourt of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of thisSection 15.11.
SECTION 15.12ASSIGNMENT. Reseller may not assign any of its rights or delegate any of its obligationsunder this Agreement without the prior written consent of Supplier. Any purported assignment or delegation inviolation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any ofits obligations under this Agreement. Supplier may assign any of its rights or delegate any of its obligations to anyAffiliate or to any Person acquiring all or substantially all of Supplier’s assets without the consent of Reseller.
SECTION 15.13SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the benefit of theParties and their respective permitted successors and permitted assigns.
SECTION 15.14NO THIRD-PARTY BENEFICIARIES.This Agreement benefits solely the Parties to thisAgreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express orimplied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under orby reason of this Agreement.
SECTION 15.15CHOICE OF LAW.This Agreement, including all exhibits, schedules, attachments, andappendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by,and construed in accordance with, the laws of the State of Illinois, US, without regard to the conflict of lawsprovisions thereof to the extent these principles or rules would require or permit the application of the laws of anyjurisdiction other than those of the State of Illinois.
SECTION 15.16CHOICE OF FORUM.Each Party irrevocably and unconditionally agrees that it will notcommence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising fromor relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached hereto andthereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forumother than the courts of the State of Illinois and any appellate court from any thereof.Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring anyaction, litigation, or proceeding only in the courts of the State of Illinois. Each Partyagrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in otherjurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 15.17WAIVER OF JURY TRIAL.Each Party acknowledges and agrees that any controversy thatmay arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to thisAgreement, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably andunconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating tothis Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or thetransactions contemplated hereby.
SECTION 15.18COUNTERPARTS. This Agreement may be executed in counterparts, each of which isdeemed an original, but all of which together are deemed to be one and the same agreement. Notwithstandinganything to the contrary in Section 15.04, a signed copy of this Agreement delivered by facsimile, email, or other meansof electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of thisAgreement.
SECTION 15.19FORCE MAJEURE. No Party shall be liable or responsible to the other Party, nor be deemedto have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of thisAgreement (except for any obligations to make payments to the other Party under this Agreement), when and to theextent the failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonablecontrol, including the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake,or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civilunrest; (d) requirements of law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f)action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns orother industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shallgive Notice to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Partyshall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized.The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removalof the cause.
SECTION 15.20NO PUBLIC ANNOUNCEMENTS OR TRADEMARK USE. Unless expressly permitted underthis Agreement, neither Party shall:(a)make any statement (whether oral or in writing) in any press release, external advertising,marketing, or promotion materials regarding the other Party or its business unless:(i)it has received the express written consent of the other Party, or(ii)it must do so by law; or(b)use the other Party’s Trademarks, service marks, trade names, logos, symbols, or brandnames, in each case, without the prior written consent of the other Party.