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CONSIGNMENT STOCK AGREEMENT
This Consignment Stock Agreement (“Agreement”) is entered by and between Healthcare Asset Network, Inc., with a place of business at 9418 Norton Commons Blvd, Suite 206, Prospect, KY 40059, (“HAN”), and User, (“Consignor”).
In accordance with this Agreement, the parties contemplate that (i) Consignor will make available to HAN certain products, (ii) HAN will attempt to sell such products and (iii) upon sale of such consigned products, HAN will collect the proceeds from such sale and pay to Consignor an agreed upon percentage of the proceeds. For clarity on the terms and conditions applicable to such consignments, the parties desire to enter into an agreement that will govern all such transactions between them.
In consideration of the above recitals and the covenants and conditions contained in this Agreement, the parties agree as follows:
- TERM. This Agreement will begin on the Effective Date and shall continue for a period of one year from the date of this Agreement (“Term”), unless sooner terminated as provided herein. The Term shall automatically renew at the expiration of the original on a month to month basis, unless either party gives to the other written notice at least 30 days before the expiration of the then current Term of its intent not to renew.
- PRODUCTS. The term “Product” or “Products” means any items the Consignor and HAN agree in writing or electronically to sell pursuant to this consignment arrangement with HAN.
- CONSIGNMENT. The Consignor hereby agrees to deliver and consign certain Products to HAN from time to time during the Term of this Agreement. HAN shall have the right to sell the Products for the Consignor under the terms of this Agreement (including the Consignment Terms and Conditions”).
- PRICING. HAN will share in the proceeds of each sale as set forth in the tables below. The price of each item may be updated based on quantity, current market dynamics, expiration date, and other factors, as necessary. Consignor will approve pricing for any item over $10,000.
Standard rates are below. Rates may vary based upon a previously established enterprise agreement with parent company. To inquire about enterprise agreements, email email@example.com.
Buyers: No fees
- $1 - 5,000 - 60% to seller
- $5,001 and up - 70% to seller
- TERMS AND CONDITIONS This Agreement also incorporates the “Consignment Terms and Conditions” set forth on HAN’s website. By executing below, you indicate your acknowledgment and acceptance of the Consignment Terms and Conditions.
In Witness Whereof, the parties have entered into the Agreement as of this date.
CONSIGNMENT TERMS AND CONDITIONS
The following terms and conditions (the “Terms and Conditions”) are incorporated into that certain Consignment Stock Agreement (the “Agreement”) by and between Consignor and HAN, dated as of the Effective Date. Any capitalized term not defined herein shall have the meaning set forth in the Agreement. Any section reference not specifically referencing these Terms and Conditions shall be a reference to the corresponding section in the Agreement.
- Consignment of Products HAN shall be the exclusive party authorized to sell each Product Consignor places with HAN, and Consignor shall not list any such Product with any other party. Consignor recognizes that HAN is a platform and not responsible for Product performance.
- Sale of Products; Title to Products. 1.1 HAN shall have the right, in its sole discretion, to sell the Products. For each Product placed with HAN, Consignor shall deliver HAN a “Consignment Order,” which shall include a description of the Product being consigned, the quantities and prices, the shipment schedule, the terms and place of delivery and the following notation: “This order is issued pursuant and subject to the Consignment Stock Agreement between HAN and Consignor.” In the event of any inconsistency between the terms and conditions of the Agreement and these Terms and Conditions and the terms of a Consignment Order, the terms and conditions of the Agreement shall prevail. Consignor shall retain title to the Products until a sale of the Products by HAN. When HAN delivers Products to persons purchasing such Products (“Purchasers”), title to Products shall pass from Consignor to Purchasers.
- Price, Payment, and Discount or Commission.
- Pricing. For purposes of calculating the net market price for any Products sold by HAN hereunder, all excise and sales taxes, and costs for shipping and delivery from, and returns to HAN and/or Consignor shall be excluded, whether paid by HAN, Consignor or the Purchasers directly.
- Consignor’s Expenses. Consignor shall be liable for and agrees to pay the following expenses to the extent they are associated with Products: (a) property taxes; (b) storage and warehousing expenses (no charge if held by Consignor); and (c) Product liability insurance and other types of insurance to the extent necessary to cover any risks which may be reasonably foreseen.
- Payment to Consignor Following sale of Products to Purchasers, HAN shall pay to Consignor the amount determined in accordance with Section 4 of the Agreement on a monthly basis in arrears (every 30 days for sales within first 20 days of the period).
- Packing, Delivery and Transfer of Title; Warranties.
- Packing and Shipping. All Products, other than those to be removed by the Purchaser, shall be suitably packed, marked and shipped by Consignor or in the absence of such a designation, in accordance with the requirements of common carriers in a manner to secure lowest transportation cost, and no additional charge shall be made to HAN.
- Delivery. Consignor shall deliver Products sold pursuant to the Agreement in accordance with the delivery terms agreed to by Consignor and HAN. Consignor shall immediately notify HAN of any circumstances that may reasonably cause a delay in delivery stating the estimated period and reasons for delay and, if requested by HAN, shall use reasonable efforts to avoid or minimize delay to the extent possible. Neither party shall be liable to the other for damages for any delay arising out of causes beyond its reasonable control and without its fault or negligence.
- Remedies. If shipment, where applicable, cannot be or is not made within 2 days after the date scheduled on any Consignment Order, HAN may terminate the Consignment Order (without cost to HAN) by written notice to Consignor and such termination shall discharge all obligations and liabilities of the parties under the Consignment Order except as to Products delivered previously.
- Warranties. CONSIGNOR WARRANTS THAT PRODUCTS DELIVERED BY IT SHALL BE AS DESCRIBED IN THE CONSIGNMENT ORDER BY CONSIGNOR AND THAT ALL UNOPENED AND UNUSED PRODUCTS DELIVERED BY IT VIA HAN HAVE NOT BEEN ALTERED FROM THEIR ORIGINAL CONDITION BY CONSIGNOR. CONSIGNOR HEREBY EXCLUDES ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTY WHICH MIGHT OTHERWISE ARISE FROM THE COURSE OF DEALING BETWEEN THE PARTIES THERETO OR FROM ANY USAGE OF TRADE. PRODUCTS ARE NOT CONSIGNED BY SAMPLE UNLESS THAT FACT IS SPECIFICALLY STATED.
- Inspection and Acceptance. Upon delivery of Products, the clean bill of lading, express receipt or similar delivery document shall serve as conclusive evidence of the quality, condition and quantity of Products. Notwithstanding such evidence, HAN shall have the right to inspect and confirm the quantity of Products, but such confirmation shall not be deemed to be a representation or warranty by HAN of the quality of Products, nor shall such confirmation excuse Consignor from its obligations hereunder.
- Data Rights. In the course of performing its obligations under the Agreement HAN may receive product and purchasing data from Consignor, including, without limitation, the purchasing history of products likely to be purchased through HAN (collectively, “Data”). To the extent that any Data is owned by Consignor, Consignor hereby grants HAN a perpetual, non-exclusive, royalty-free, paid up and non-transferable right to use, analyze and exploit the Data, provided that HAN shall not disclose to a third party information in a manner that would directly disclose the identity of Consignor as the origin of any such Data. Consignor shall provide all usage reports and test data on used Products sold under the Agreement, but there are no warranties which extend beyond such description.
- Cancellation for Cause. Either party may cancel the Agreement in the event the other party is in default of any material provision of the Agreement or is in default under any consignment order, and the fault is not cured within 90 days of receipt by the other party of written notice from the party giving notice specifying the nature of the default and corrective action that may be taken, if any.
- Bankruptcy. In the event of bankruptcy or insolvency of Consignor, or in the event any proceeding is brought by or against Consignor under the bankruptcy or insolvency laws, HAN shall be entitled to cancel any consignment order then outstanding and shall receive reimbursement for the reasonable and proper cancellation charges accrued by HAN. In the event of insolvency as defined by the Uniform Commercial Code in effect in Kentucky, any act of bankruptcy, whether voluntary or involuntary, or any insolvency proceeding instituted by or against Consignor, HAN may refuse redelivery of the goods covered by the Agreement except for cash, including payment for all goods theretofore redelivered under the Agreement, and HAN may stop delivery of goods in transit.
- Compliance with Laws. In performing under the Agreement, all applicable governmental laws, regulations, orders and other rules of duly constituted authority shall be followed and complied with in all respects by both parties. Consignor agrees and warrants: (a) in the performance of its obligations 1. under the Agreement, that it shall not take any action that will render HAN liable for a violation of any such laws, regulations, orders and other rules, including, without limitation, (i) the U.S. Export Administration Regulations (“EAR”), (ii) U.S. Foreign Corrupt Practices Act or similar laws , and (b) HAN has informed it that United States law and the EAR govern and may prohibit the re-export or other disposition of Products, and related technical data received by Consignor or its customers without prior U.S. Government approval. HAN shall assist Consignor in obtaining any and all necessary export licenses and complying with all the terms, conditions, required procedures and documentation of any export license issued for the delivery of the Products subject to the Agreement. Any violation of Section 7.1(a)(ii) by Consignor shall instantly render the Agreement null and void. HAN shall assist Consignor in complying with the Export Administration Act provisions concerning antiboycott compliance.
- Cumulative. The remedies reserved in the Agreement shall be cumulative and in addition to any other remedies provided in law or equity.
- Default. On default by Consignor, HAN shall have the option of refusing to perform further under this and any other existing agreement between the parties that HAN may elect, and HAN may rescind any agreements between the parties and hold Consignor liable for all damages and losses occasioned thereby; or of reselling, at public or private sale, consigned goods covered by this and any other existing agreement between the parties that HAN may elect. In such case, HAN shall not be liable to Consignor for any profit on any resale, but Consignor shall remain liable to HAN for HAN’s damages arising from such default.
- Consequential Damages. IN NO EVENT SHALL HAN OR ANY PARTNER OR AFFILIATE BE LIABLE OR RESPONSIBLE TO CONSIGNOR OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY OF LAW, EVEN IF HAN SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, ALL SUCH DAMAGES AND CLAIMS BEING SPECIFICALLY DISCLAIMED.
- Product Liability. If Consignor is aware of risks associated with the Product, Consignor hereby agrees to provide reasonable warnings to downstream consumers.
- Release. Consignor, on behalf of itself, its employees, agents, representatives and customers, hereby releases and discharges HAN, its partners, directors, officers, employees, agents, affiliates and their respective personal and legal representatives, heirs, successors and assigns, from all damages, losses, personal injury (including death), property damage, claims, demands, actions, or causes of action, present or future, whether known or unknown, anticipated or unanticipated, and resulting from or arising out of the past, present or future use or sale of the Product.
- Indemnification. Each party (the "Indemnifying Party") shall at all times during the Term and thereafter indemnify and hold harmless the other party (the "Indemnified Party") and its directors, officers, agents, partners, affiliates and their personal representatives, heirs, successors and assigns, and each of them, from and against any and all claims, liabilities, loses, demands, penalties, fines, suits, judgments, settlements, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by such party or any such person or entity, arising out of or related to any act or commission of the Indemnifying Party in connection with the duties hereunder or the failure, breach or default by Indemnifying Party of any of the representations, warranties, covenants or other agreement of Indemnifying Party contained in the Agreement. Without limiting the foregoing, Consignor agrees to indemnify HAN for any warranty or product warranty claims arising out of the sale of any Products hereunder.
- Confidential Information. Subject to HAN’s Data Rights, Both parties shall regard as highly confidential all information developed by or communicated to it in the course of or in connection with its performance under the Agreement (“Confidential Information”), and shall not, without the other party's prior written approval, make any disclosure of the Confidential Information except to its employees and other authorized persons who may be designated to work with it in performing under the Agreement.
- Non-contravention. Consignor covenants and agrees that during the Term and for a period of one year thereafter, Consignor shall not (a) establish an on-line platform for the sale, re-sale or consignment of medical equipment (“HAN’s Business”), or (b) contact any supplier or customer of HAN, directly or indirectly, or approach, solicit, aid, abet or assist any other person or entity in contacting any supplier or customer of HAN, for the purpose of initiating, engaging in or furthering competition with HAN.
- Noninducement and Nonsolicitation. Consignor shall not, during the Term and for a period of two years after the Term, regardless of the reason for such termination, directly or indirectly, on its own behalf or on behalf of any other person or entity, recruit or attempt to recruit any: (a) person who is or was an employee, or associate of HAN during the Term; and (b) agent, consultant, service provider or independent contractor who provides services to HAN which are directly related to HAN’s Business; for the purpose of having such person or entity work with or for itself or any other person, company, association, entity or business that is competitive with HAN’s Business or otherwise change their relationship with HAN, provided that Consignor had contact with such person or obtained knowledge about such person during the Term.
- Reasonableness of Scope and Duration. Both parties understand and agree that the covenants and agreements contained in the Agreement are material inducements to the parties entering into this Agreement, are reasonable in their scope and duration, not unduly restrictive, and neither party will raise any issue of the reasonableness of the scope or duration of any such covenants in any proceeding to enforce any such covenants. If a court of competent jurisdiction should declare any part of the Agreement unenforceable because of any unreasonable restriction of scope, duration or geographical area or any other reason, then each party hereby acknowledges and agrees that such court shall have the express authority to reform provisions of the Agreement to provide for reasonable restrictions and to grant such other relief at law or in equity as may be reasonably necessary to protect their interests. The parties agree that if either violates the Agreement and the other brings a legal action for injunctive relief, the term of the covenants described in the Agreement shall be deemed to have a duration specified in such covenant computed from the date such relief is granted, reduced by any time between when the period of restriction began to run and the date of first violation by either party.
- Notices. All notices and other communications required or authorized under the Agreement shall be given in writing either by personal delivery or by registered mail addressed to the respective party at the addresses indicated at the beginning of the Agreement.
- Construction and Interpretation of Agreement. Section titles or captions in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement. The parties have participated jointly in the negotiation and drafting of the Agreement. If any ambiguity or question of intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of the Agreement.
- Severability of Provisions. If a court in any proceeding holds any provision of the Agreement or its application to any person or circumstance invalid, illegal or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those to which it was held to be invalid, illegal or unenforceable, shall not be affected, and shall be valid, legal and enforceable to the fullest extent permitted by law.
- Publicity. HAN may reference Consignor as a customer. References to Consignor in HAN’s advertising and promotional materials will be subject to Consignor’s trademark and branding guidelines for its names and logos.
- Authorization. Each party hereto represents, warrants and covenants to the other party that the Agreement has been duly authorized and executed on behalf of such person and constitutes such person’s legal, valid and binding obligation, enforceable against it in accordance with its terms.
- Governing Law. This Agreement shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of Kentucky, without giving effect to any conflict of law rule or principle of such state.
- Jurisdiction and Venue. Any action to enforce any provision of the Agreement shall be instituted exclusively in the United States District Court for the Western District of Kentucky or, if such Court does not have jurisdiction to adjudicate such action, in the courts of the State of Kentucky located in Jefferson County. The parties irrevocably and unconditionally waive and shall not plead, to the fullest extent permitted by law, any objection that they may now or hereafter have to the jurisdiction of such courts over the parties, the laying of venue or the convenience of the forum of any action related to the Agreement that is brought in such courts. Each of the parties consents and voluntarily submits to personal jurisdiction in the State of Kentucky and in the courts of such state located in Jefferson County and the United States District Court for the Western District of Kentucky in any preceding arising out of or relating to the Agreement, and agrees that all claims raised in such proceeding may be heard and determined in such court. Each of the parties further consents and agrees that such party may be served with process in the same manner as notice may be given under the Agreement. The provisions of this Section 10.12 shall not be applicable to any dispute, controversy or claim by HAN against Consignor arising out of or related to any dispute, controversy or claim made against HAN by a third party, including without limitation a consumer of Products.
- Survival. All agreements and representations of Consignor herein (including without limitation those regarding, confidentiality, indemnification and warranties) shall survive final payment or an earlier termination of the Agreement.
- Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement of the parties hereto, may be amended, modified or superseded only by a written instrument signed by both parties to the Agreement. No party shall be deemed to have waived compliance by another party of any provision of the Agreement unless such waiver is in writing and signed by the waiving party. The failure of any party to enforce at any time any of the provisions of the Agreement or to exercise any right or option contained in the Agreement or to require at any time performance of any of the provisions of the Agreement, by any of the other parties shall not be construed to be a waiver of such provisions and shall not affect the validity of the Agreement or any of its provisions or the right of such party thereafter to enforce each provision of the Agreement.
- Certain Approvals. Consignor acknowledges that the sale of particular Products may be subject to regulation by the U.S. Food and Drug Administration and state and local regulatory agencies. If so, HAN may not be able to arrange the sale of any such Products unless to an authorized purchaser.
THIS DISTRIBUTOR AGREEMENT (“Agreement”) is made as of this date (the “Effective Date”), by and between Seller (“Manufacturer”), and Healthcare Asset Network, Inc., with its principal place of business at 9418 Norton Commons Blvd., Suite 206, Prospect, Kentucky 40059 (“Distributor”).
WHEREAS, Manufacturer desires, subject to the terms and conditions of this Agreement, to grant Distributor the right to use, resell, distribute and market the products (“Product(s)”) described on Exhibit A in the territories described below, and Distributor desires to accept such grant.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
(a) Territory. Manufacturer hereby grants to Distributor the non-exclusive right, during the Term (as defined below) of this Agreement, to use, sell, resell, distribute and market the Products within the United States or global locations as agreed upon by both parties (the “Territory”).
(b) Sales Representatives and Sub-Distributors. Distributor shall be permitted to appoint sales representatives and sub-distributors to perform any of Distributor's obligations under this Agreement.
This Agreement shall continue in full force and effect subject to the provisions of Section 8.
3. Purchase Terms.
(a) Manufacturer shall sell to Distributor all Products ordered by Distributor or Distributor’s customers via purchase orders and shall deliver such Products EXW manufacturer’s facility in the U.S.A. (Incoterms 2010). Distributor shall arrange for the Products to be shipped to Distributor’s customers from such location. Manufacturer shall deliver to Distributor all orders in full by the delivery dates stated on purchase orders unless otherwise agreed in writing by the parties. Distributor reserves the right, without liability or waiver of any other remedies available to Distributor, if Manufacturer cannot timely deliver the Products or if Manufacturer is in default, to approve a new delivery schedule, or to cancel, in whole or in part, a purchase order or this Agreement.Manufacturer shall promptly notify Distributor of any delay or of any anticipated delay in delivery of the Products.
(b) For Products that are non-capitalized supplies (e.g., draping), Manufacturer shall invoice Distributor and Distributor shall pay such invoice net 30 days. For Products that are capitalized equipment (e.g., beach chairs), Manufacturer shall invoice Distributor and Distributor shall pay such invoice fifty percent (50%) within 15 days after platform transaction and fifty percent (50%) within 15 days after such Products are shipped and final invoice received. Payments shall be made by electronic funds transfer, to Manufacturer’s nominated account, unless otherwise agreed by the parties.
(c) The price for the Products shall be as described in Exhibit A. The pricing will not change unless Manufacturer provides Distributor with 30 days prior written notice of any such change. Manufacturer warrants that the price and terms given Distributor always shall be as favorable as those given any other distributor or customer of Manufacturer for similar products. Further, if Manufacturer’s list or published price for any similar product or for the Products decreases, Manufacturer immediately shall ensure Distributor has the lowest price charged to any of Manufacturer’s other distributors or customers.
(d) Distributor may make changes to a purchase order, including to any quantity, instruction, drawing, destination, delivery schedule (subject to Section 3(a)) or method of transportation relating to any goods furnished hereunder, and Manufacturer shall comply with any such change. If any such change affects the price of the Products furnished hereunder or the time required for Manufacturer’s performance under the purchase order, a corresponding adjustment in the price or delivery schedule or both may be made if agreed in advance and in writing by Distributor. All claims for adjustments in Manufacturer’s favor shall be made by Manufacturer to Distributor in writing within ten (10) business days after the change to which the adjustment relates is made, or Manufacturer forgoes any such adjustment, and no such adjustment shall be binding upon Distributor unless Distributor has agreed in writing and in advance to the same.
(e) Distributor may terminate a purchase order at its convenience by written notice to Manufacturer in which event it may discharge all its obligations by payment of the lesser of reasonable charges for work completed against the purchase order at the time of termination, the completion of which is supported by evidence reasonably acceptable to Distributor, or a restocking charge not to exceed twenty (20%) of the price for any such cancelled or returned Product.
(f) Subject to Section 7(e), all goods are subject to inspection and acceptance. Such inspection will be made within a reasonable time after delivery. Any goods furnished in fulfillment of a purchase order that are not in compliance with the warranties or other provisions hereof, or are shipped contrary to instructions, or in excess of quantities ordered, or are substituted for merchandise specified, or allegedly violative of any law, rule or regulation, may be rejected by Distributor and returned at Manufacturer’s expense. All expenses of unpacking, examining, repacking, storing and reshipping any goods rejected as aforesaid, and any shipment of replacement goods by Manufacturer shall be at Manufacturer’s expense.
(g) Distributor reserves the right to change commission structure at any time with approval by Manufacturer.
(a) “Trademark(s)” shall mean all present and future trademarks, service marks, trade names, logos, slogans, insignias, symbols and the like and registrations thereof, which are owned by Manufacturer or which Manufacturer has the right to use, including, without limitation, “Seller’s Legal Name”. Manufacturer hereby grants to Distributor a royalty-free, non-exclusive license to use the Trademarks solely in connection with the use, sale, resale, distribution and marketing of Products hereunder. Any and all use of any Trademark shall inure to the sole benefit of Manufacturer. In addition, Distributor shall not do any act or thing which shall or might endanger or impair the value of any such Trademarks.
(b) The Products when sold to Distributor shall bear Trademarks, as specified by Manufacturer to Distributor from time to time, which shall remain the sole property of Manufacturer. During the Term and during the Wind-Down (as defined below), Distributor may publicly indicate that it is Manufacturer’s distributor for Products in advertising and promoting the sale of Products. Distributor may display and provide advertising or promotional materials prepared by Manufacturer or Distributor (with prior approval from Manufacturer which approval shall not be unreasonably withheld). Distributor will promptly discontinue the use of the Trademarks on any signs, websites, displays or advertising materials or in its legal name or otherwise at the end of the Term of this Agreement or upon the termination of the relationship between Manufacturer and Distributor.
5. Duties and Obligations of Distributor.
Distributor shall at all times observe and perform the terms and conditions set out in this Agreement. In particular, Distributor shall:
(a) Sales. Use reasonable efforts to promote and sell Products in the Territory to potential customers thereof and work to obtain orders therefor: (i) by allocating personnel to meet its obligations under this Agreement; (ii) by means of correspondence with customers and potential customers; and (iii) by promotion, advertising and distribution of printed matter.
(b) IP Protection. Bring to the attention of Manufacturer any improper or wrongful use of Manufacturer’s proprietary rights and assist Manufacturer at the request and expense of Manufacturer and for the account of Manufacturer in taking all reasonable steps to defend the proprietary rights and interests of Manufacturer.
(c) Sales Leads. Follow all reasonable sales leads provided by Manufacturer.
6. Manufacturer’s Duties and Obligations.
Manufacturer shall at all times observe and perform the terms and conditions set forth in this Agreement. In particular, Manufacturer shall:
(a) Sales and Technical Support. Assist Distributor, upon request, with all advertising, sales, promotion, and marketing campaigns for the Products and provide Distributor with all technical information and assistance regarding the Products.
(b) Shipping Support. Assist Distributor, upon request, with the coordination and logistical support to ship the Products from their place of delivery described in Section 3(a) above to their place of delivery with Distributor’s customers.
(c) Product Changes. Provide Distributor thirty (30) days’ prior written notice of any desired change in the Products, unless Distributor in writing agrees to a shorter notice in a particular instance, and at any time discuss with Distributor any changes Distributor suggests.
(d) Order Fulfillment. Timely fill all purchase orders of Distributor.
(e) Insurance. Provide general liability insurance for coverage in the Territory, including blanket contractual and products liability, with limits of no less than $2,000,000 per occurrence and $2,000,000 in the aggregate, naming Distributor as an additional insured; and, on Distributor’s request, provide a certificate(s) of insurance evidencing compliance with this Section 6(f) and providing that such insurance cannot be amended or changed without thirty (30) days’ prior written notice to Distributor. Such insurance shall be written on an occurrence based policy with a financially secure insurance company satisfactory to Distributor.
(a) Manufacturer hereby warrants that it has good and clear title to the Products and the right to sell the Products to Distributor. Manufacturer warrants the Products do not infringe any proprietary rights of any third party.
(b) Manufacturer warrants that the Products will have no defect in materials or workmanship, be merchantable, be fit for their particular purpose, and perform in accordance with the applicable specifications agreed upon by Distributor and Manufacturer from time to time (collectively, “Specifications”) until one (1) year/months following the sale of a Product to the retail purchaser of such Product. Distributor and retailers shall pass through Manufacturer’s warranties to the retail purchaser of the Products. In the event the Products do not satisfy Manufacturer’s warranties hereunder, then during the warranty period, Manufacturer shall at Distributor’s option: (i) immediately replace the Products (shipped DDP (Incoterms 2010) to a point of destination designated by the Distributor), with conforming Products free of charge; or (ii) refund all payments therefor; or (iii) remedy the situation to the satisfaction of the customer and agreed upon in writing by both Manufacturer and Distributor.
(c) Nothing used in the manufacture of the Products covered by this Agreement will contain any material deemed to be toxic or hazardous pursuant to any applicable rule, regulation, statute, ordinance or court ruling. Manufacturer will comply, in the performance of this Agreement, with all applicable federal, state, local, foreign and other governmental laws and regulations.
(d) Manufacturer warrants that all Products will comply with all applicable federal, state, local, foreign and other governmental laws and regulations.
(e) In no event will the inspection and acceptance of any Product pursuant to this Agreement, the failure to inspect any Product or the payment for any Product, in any way impair or reduce Distributor’s rights under this Agreement, at law or in equity, including warranty obligations of Manufacturer and Distributor’s rights to further inspection or testing.
(f) Manufacturer will ensure that the Products and the packaging for the Products meets or exceeds US transits requirements as requested by Distributor, Distributor’s customers and/ or major shipping companies such as UPS and FedEx.
(a) Either party may promptly terminate this Agreement in writing if the other party fails to observe or perform any of the material terms and conditions of this Agreement on its part to be observed or performed, and such default has not been corrected or remedied within sixty (60) days after written notice of such default.
(b) Either party shall be entitled to terminate this Agreement upon written notice to the other party if such party shall (i) become insolvent, however evidenced, (ii) make a general assignment for the benefit of creditors, (iii) file or have filed against it a petition in bankruptcy, for reorganization or similar arrangement, or for a receiver, trustee or similar representative for such party’s property or assets or any part thereof, or (iv) file or have filed against it any other proceeding under any insolvency law, and in any of such cases the proceeding shall not have been dismissed or discharged within thirty (90) days thereof.
(c) The parties also may terminate this Agreement at any time by mutual written agreement.
(d) Upon expiration or termination hereof for any reason, Manufacturer shall fulfill all outstanding Distributor and customer purchase orders not withdrawn under the applicable provisions hereof, and Distributor and its customers shall be entitled to sell the remaining balance of its inventory of the Products (the “Wind-Down”).
(a) Manufacturer Indemnity. Manufacturer shall indemnify and hold Distributor, and its employees, directors and officers, sub-distributors, sales representatives and customers harmless from and against all losses, penalties, demands, claims, costs, judgments, damages, expenses, liabilities, recoveries and fees, including attorneys’ fees, arising from: a defect in the Products; Manufacturer’s failure to comply with any law applicable in the Territory; or a breach by Manufacturer of this Agreement.
(b) Distributor’s Indemnity. Distributor shall indemnify and hold Manufacturer, and its employees, directors and officers, harmless from and against all losses, penalties, demands, claims, costs, judgments, damages, expenses, liabilities, recoveries and fees, including attorneys’ fees, arising from Distributor binding Manufacturer to warranties beyond that provided in Section 7 above or a breach by Distributor of this Agreement.
(a) The performance of the activities provided for in this Agreement may require Manufacturer to disclose to Distributor, and Distributor to disclose to Manufacturer, certain confidential or proprietary information, including, but not limited to, trade secrets or other like information of business value, whether relating to production knowledge and processes, marketing methods, customer lists, or other matters (the "Confidential Information"). In consideration of Manufacturer’s disclosure of Confidential Information to Distributor, and Distributor's disclosure of Confidential Information to Manufacturer, each party shall (i) make no use of Confidential Information disclosed by the other party except for itself and its employees and agents to carry out its activities provided for in this Agreement; (ii) not disclose the Confidential Information to third parties; (iii) take such precautions as it normally takes with its own confidential and proprietary information, but no less than reasonable precautions, to prevent disclosure of Confidential Information to third parties; and (iv) return all documents containing Confidential Information, and return or destroy all copies thereof, upon the written request of the other party.
(b) Notwithstanding any of the foregoing, Confidential Information shall not include (i) any information which, at the time of disclosure by one party to the other, is publicly available or in the public knowledge; (ii) any information which, after disclosure by one party to the other, lawfully becomes part of the public knowledge through publication or otherwise, but through no fault of the receiving party; (iii) any information which the receiving party possesses at the time of disclosure by the disclosing party and which was not acquired directly from the disclosing party; (iv) any information acquired by the receiving party from a third party who has a right to disclose such information; and (v) any information independently developed by the receiving party or its employees without knowledge of the disclosure from the disclosing party.
(c) The parties hereto hereby declare that it is impossible to measure in money the damages that will accrue by reason of a failure to perform any obligations under Section 10 of this Agreement. Therefore, if a party shall institute any action or proceeding to enforce the provisions of Section 10, the defendant in such action or proceeding hereby consents to an injunction, specific performance or other equitable remedy and waives the claim or defense that the plaintiff therein has or had an adequate remedy at law, and waives the requirement of the posting of a bond, and such defendant shall not raise such claim or defense in any such action or proceeding.
11. Applicable Law.
This Agreement shall be governed my the laws of the Commonwealth of Kentucky, without regard to conflicts of laws principles. Each party hereto irrevocably consents to the exclusive general jurisdiction and venue of the state and federal courts located in Jefferson County, Kentucky for the resolution of any and all disputes arising hereunder or related hereto; provided however, that either party may pursue collection or equitable remedies in any jurisdiction necessary to enforce its rights hereunder.
12. Assignment, Actions.
Neither party will assign, transfer or encumber its rights or obligations under this Agreement without the express written consent of the other party, which consent shall not be unreasonably withheld.
Any notice, demand, or request required or permitted to be given hereunder shall be in writing and shall be effective on receipt if sent by certified mail or commercial courier, in all cases, prepaid with proof of transmission, to the address set forth in the first paragraph of this Agreement. The parties may change the address set forth above from time to time, provided that any such change shall be effective only upon receipt of notice in writing by the other party of the change.
14. Modifications and Waivers.
No modification or amendment to this Agreement shall be of any force or effect unless in writing and signed by both parties hereto. No waiver of any term or condition of this Agreement shall constitute a waiver by either party of any of its rights hereunder on a similar or later occasion.
In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute or rule of law in any particular circumstance or governing jurisdiction, such provision shall be ineffective to the extent of such violation without affecting the validity or enforceability of such provision in any other jurisdiction or circumstance or of any other provision herein.
16. Entire Agreement.
This Agreement and its Exhibits constitutes the entire agreement between the parties hereto, and supersedes all prior statements, promises, understandings, or agreements. Manufacturer’s terms and conditions shall have no binding effect on the parties hereto.
The enforceability of Sections 3, 4(b), 7, 8(d), 9-12, 13 and 17 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement may be signed by facsimile signatures or other electronic delivery of an image file reflecting the execution hereof, and, if so signed: (a) may be relied on by each party as if the document were a manually signed original and (b) will be binding on each party for all purposes.
Prices and products shall be agreed upon with Distributor and connected to Distributor platform in an automated fashion.