Please review and sign this Wholesale Agreement to complete your application
Authorized Sales Channels:
Brick & Mortar,
Website: If website, **All website prices must be at retail on the Troscriptions Website or over**
Wholesale Discount: Thirty Percent (30%)
Minimum Order Quantity: Forty (40) units or packs of four (4) troches
This Retailer Agreement (this "Agreement") is entered into as of the Effective Date (set forth above) by and between SMARTER NOT HARDER, INC. (dba TROSCRIPTIONS), a Delaware Corporation, with its principal offices located at 19888 Church Street, Rehoboth Beach, DE 19971, USA ("SNH"), and the above-referenced Retailer (“Retailer” or “Authorized Distributor”). In consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
(a) The terms and conditions set forth in this Agreement and the Purchase Order Transaction Terms (as defined in Section 3(b)) set forth in the applicable Purchase Order (as defined below) submitted by Retailer to SNH and that is accepted by SNH are the only terms that govern the sale of Goods by SNH to Retailer. For purposes of this Agreement, (i) the term “Goods” means those products SNH elects to make available for purchase by Retailer from time to time in SNH’s sole and absolute discretion and (ii) “Purchase Order” means the purchase order for Goods submitted by Retailer to SNH in compliance with the terms of this Agreement.
(b) This Agreement, together with the Purchaser Order Transaction Terms in Purchase Orders submitted by Retailer for Goods to SNH from time to time and that are accepted by SNH, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Retailer's general terms and conditions of purchase regardless whether or when Retailer has submitted such terms and conditions. Fulfillment of Retailer's Purchase Order does not constitute acceptance of any of Retailer's terms and conditions and does not serve to modify or amend this Agreement.
(a) Goods purchased by Retailer shall be offered for sale and sold by Retailer solely through the authorized sales channels set forth above (“Authorized Channels”) and solely to individual consumers for their personal use. Retailer shall not, directly or indirectly, do or allow any of the following: (i) sell or otherwise transfer any Goods by any means to any entity or individual for resale, marketing or distribution; (ii) sell or otherwise transfer any Goods by any means to any entity or individual that Retailer might reasonably believe may resell, market or distribute any of the Goods; or (iii) advertise or solicit sales or sell or transfer Goods through any channel other than the Authorized Channels. Retailer agrees that it will educate and cause its employees and agents to comply with the foregoing obligations. Retailer agrees to compensate SNH for damages for any violation of this Section 2 and to also reimburse SNH for the purchase of Goods by SNH from any person or entity to which or through which Retailer has sold or transferred any Goods in violation of this Agreement.
(b) Retailer shall not sell Goods online below SNH’s retail price or offer an in-store discount of more than
10% of SNH’s retail price.
3. Orders Procedure.
(a) Retailer shall email all Purchase Orders to SNH at firstname.lastname@example.org. Upon SNH acceptance of such Purchase Order, SNH will issue a unique wholesale code to Retailer for wholesale purchase on www.troscriptions.com. Retailer shall not share this code with any third parties. Retailer shall ensure that all Purchase Orders contain the Purchase Order Transaction Terms. By placing a Purchase Order, Retailer makes an offer to purchase Goods under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Other than with respect to the Purchase Order Transaction Terms, any variations made to the terms and conditions of this Agreement by Retailer in any Purchase Order are void and have no effect.
(b) Retailer shall specify the following information (collectively, the "Purchase Order Transaction Terms") in each Purchase Order: (a) the Goods to be purchased or other product identifier; (b) quantities ordered; and (c) the address to which such Goods are requested to be shipped.
(c) SNH may, in its sole discretion, accept or reject any Purchase Order. SNH may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Goods, whichever occurs first. No Purchase Order is binding on SNH unless accepted by SNH as provided in this Agreement.
(d) Retailer Purchase Order quantity shall be the minimum order quantity set forth by SNH.
(a) Unless expressly agreed to by the parties in writing and signed by an authorized representative of SNH,
SNH shall select the method of shipment of and the carrier for the Goods. SNH may, in its sole discretion,
without liability or penalty, make partial shipments of Goods to Retailer. Each shipment constitutes a
separate sale, and Retailer shall pay for the units shipped, whether the shipment is in whole or partial
fulfillment of a Purchase Order.
(b) Unless expressly agreed to by the parties in writing and signed by an authorized representative of SNH, SNH shall ship the Goods using SNH's standard methods for packaging and shipping the Goods. All prices for Goods are FOB (SNH’s principal place of business in Pleasanton, California) (the “Delivery Point”). Retailer shall pay for all shipping charges and insurance costs, if any, from the Delivery Point to any other address to which such Goods are requested to be shipped.
5. Title and Risk of Loss. For the Purchase Order, title and risk of loss passes to Retailer upon delivery of the Goods to the Retailer’s shipper at the Delivery Point.
6. Price. The prices for Goods sold under this Agreement shall be per SNH’s then-current wholesale price list. All prices are exclusive of all shipping charges, insurance costs and sales, use and excise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposed by any governmental authority. Retailer shall be responsible for all such charges, costs, taxes, duties and tariffs, and shall indemnify and hold SNH harmless against any liability or responsibility for any such charges, costs, taxes, duties and tariffs.
7. Payment Terms.
(a) Retailer shall pay all amounts due at the time a Purchase Order is accepted by SNH and the Goods are
ready to be shipped. Goods will not be shipped unless payment therefore is received by SNH. All payments are
to be made in United States dollars. Retailer agrees not to dispute any charge made to Retailer’s credit
card for the purchase of Goods or to seek a chargeback therefore.
(b) If applicable, Retailer shall pay interest on all late payments at the lesser of the rate of 2.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Retailer shall reimburse SNH for all costs incurred in collecting any payments owed to it, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which SNH does not waive by the exercise of any rights hereunder), SNH shall be entitled to suspend the delivery of any Goods if Retailer fails to pay any amounts when due hereunder.
(c) Retailer shall perform its obligations under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by SNH, whether relating to SNH’s breach or otherwise and whether under this Agreement, any Purchase Order, any other agreement between Retailer or any of its affiliates and SNH, or otherwise.
(d) As collateral security for the payment of the purchase price of the Goods, Retailer hereby grants to SNH a lien on and security interest in and to all of the right, title and interest of Retailer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
8. Inspection of Nonconforming Goods.
(a) Retailer shall inspect the Goods as follows: (i) if the Goods are collected by Retailer or on its behalf at SNH’s offices, before accepting such Goods, or (ii) if the Goods are shipped to Retailer, within five days of receipt (in each case, the "Inspection Period"). Retailer will be deemed to have accepted the Goods unless it notifies SNH in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by SNH. "Nonconforming Goods" means only the following: (A) the applicable Goods are different than those identified in the applicable Purchase Order; or (B) the label or packaging of the applicable Goods incorrectly identifies its contents.
(b) If Retailer timely notifies SNH of any Nonconforming Goods, SNH shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Retailer in connection therewith. Retailer shall ship, via the method selected by SNH and at SNH’s expense, but at Retailer’s risk of loss, the Nonconforming Goods to SNH to such address as may be designated by SNH. SNH shall reimburse Retailer for such shipping expense. If SNH exercises its option to replace Nonconforming Goods, SNH shall, after receiving Retailer's shipment of Nonconforming Goods, ship to Retailer the replaced Goods to the Delivery Point. If SNH exercises its option to credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Retailer in connection therewith, SNH shall do so after receiving Retailer's shipment of Nonconforming Goods.
(c) Retailer acknowledges and agrees that the remedies set forth in Section 8(b) are Retailer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), Section 9 and Section 10, all sales of Goods to Retailer are final, non-exchangeable and non-refundable for any reason whatsoever.
9. Limited Right of Return. Subject to the terms of this Agreement, during the Return Period (as defined below), Retailer may return, at its sole expense and risk of loss, the applicable Goods purchased from SNH under this Agreement and may receive a refund for the purchase price paid for such Goods. SNH shall, after receiving any Goods returned to it in compliance with this Section 9, refund to Retailer the purchase price paid by Retailer to SNH for the returned Goods. For the avoidance of doubt, no shipping charges, insurance costs or sales, use and excise taxes, or any other similar taxes, duties, tariffs or charges of any kind are refundable. Only Goods that are in their original packaging (unopened and undamaged) are eligible to be returned, and only Goods received by SNH during the Return Period for such Goods are eligible for a refund. The “Return Period” means the 30-day period that begins on the date the Goods that are subject of the return were delivered to Retailer. SNH has the right to set off or recoup any refund it owes to Retailer against any amount owed or liability for which Retailer is liable to SNH, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
10. Representations and Warranties.
(a) General. Retailer represents and warrants to SNH that: (a) if it is a corporation, limited liability company or other type of entity, it is duly organized, validly existing and in good standing in the jurisdiction of its incorporation, organization or formation; (b) if it is a corporation, limited liability company or other type of entity, it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (c) it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set out at the end hereof has been duly authorized by all necessary action of Retailer; and (d) when executed and delivered by each of SNH and Retailer, this Agreement will constitute the legal, valid and binding obligation of Retailer, enforceable against Retailer in accordance with its terms; and (e) it shall at all times during the term of this Agreement and at any time it purchases Goods hereunder, have a reseller permit on file with SNH that is in full force and effect.
(b) Limited Product Warranty. Subject to the provisions of this Section 10, Retailer may extend its own Limited Product Warranty” (the “Limited Warranty”) to each individual consumer who purchases a Good from Retailer for his or her personal use (“Consumer”). Consumer returns shall be refunded by Retailer according to Retailer’s return and refund policy.
(c) Warranties Disclaimer; Non-reliance. (A) NEITHER SNH NOR ANY PERSON ON ITS BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RETAILER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SNH, OR ANY OTHER PERSON.
11. Retailer Obligations. Retailer shall:
(a) market, advertise, promote, and sell the Goods to Consumers in a manner that reflects favorably at all times on Goods and the good name, goodwill and reputation of SNH and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the Goods;
(b) have sufficient knowledge of the industry and products competitive with each Good (including specifications, features, and benefits) so as to be able to explain in detail to Consumers: (i) the differences between the Good and competing products; and (ii) information on standard protocols and features of each Good;
(c) submit all Goods-related promotional and marketing materials to SNH for approval prior to use and observe all directions and instructions given to it by SNH in relation to the marketing, advertisement, and promotion of the Goods, including SNH's sales, marketing, and merchandising policies as they currently exist or as they may hereafter be changed by SNH;
(d) not make any misleading or untrue statements concerning SNH or the Goods, including any product disparagement or "bait-and-switch" practices;
(e) promptly notify SNH of any complaint or adverse claim about any Good or its use of which Retailer becomes aware; and
(f) not resell Goods to any federal, state, local, or foreign government or political subdivision or agency thereof, without express written approval from SNH.
12. Limitation of Liability. IN NO EVENT SHALL SNH BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY RETAILER OR COULD HAVE BEEN REASONABLY FORESEEN BY SNH, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SNH'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SNH FOR THE GOODS SOLD HEREUNDER DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD.
13. Intellectual Property
(a) Retailer shall use SNH's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of SNH. Subject to SNH's trademark policies as may be in effect from time to time, and which may be amended from time to time in SNH's sole discretion, and the terms and conditions of this Agreement, SNH hereby grants to Retailer a non-exclusive, non-transferable and non-sublicensable license to use SNH's Trademarks only during the term of this Agreement solely on or in connection with the promotion, advertising and resale of the Goods in accordance with the terms and conditions of this Agreement. If and when requested by SNH, Retailer shall promptly discontinue the display or use of any Trademark and/or change the manner in which any Trademark is displayed or used with regard to the Goods. Other than the express licenses granted in this Agreement, SNH grants no right or license to Retailer by implication, estoppel or otherwise to any of SNH’s Intellectual Property Rights. Retailer acknowledges and agrees that: (i) any and all of SNH's Intellectual Property Rights are the sole and exclusive property of SNH or its licensors; (ii) Retailer shall not acquire any ownership interest in any of SNH's Intellectual Property Rights; and (iii) any goodwill derived from the use by Retailer of SNH's Intellectual Property Rights inures to the benefit of SNH or its licensors, as the case may be.
(b) Retailer shall not: (i) take any action that may interfere with any of SNH's rights in or to SNH's Intellectual Property Rights, including SNH's ownership or exercise thereof; (ii) challenge any right, title or interest of SNH’s rights in or to SNH's Intellectual Property Rights; (iii) make any claim or take any action adverse to SNH's ownership of SNH's Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for SNH's Trademarks or any other Trademark that is similar to SNH's Trademarks or that incorporates SNH's Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere in the world, that is confusingly similar to SNH's Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any of SNH's Intellectual Property Rights; (vii) misappropriate any of SNH's Intellectual Property Rights for use as a domain name without prior written consent from SNH; or (viii) alter, obscure or remove any of SNH's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that SNH may provide.
(c) On termination of this Agreement: Retailer’s rights under Section 10(a) cease immediately; and Retailer shall immediately cease all display, advertising, promotion and use of all of SNH'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 or confusing with SNH's Trademarks or with any trademark, trade name or product designation associated with SNH or any Good.
(d) For purposes of this Agreement: (i) "Intellectual Property Rights" means all intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) Copyrights; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world; (ii) "SNH's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to SNH; (iii) "SNH's Trademarks" means all Trademarks owned or licensed by SNH; (iv) "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 whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world; and (v) "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 rights therein.
14. Compliance with Law. Retailer, at its sole expense, shall comply with all applicable laws, regulations and ordinances related to the purchase of the Goods from SNH and the resale of such Goods, in each case, in accordance with the terms of this Agreement. Retailer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Retailer shall indemnify and hold SNH harmless against any liability or responsibility for any failure by Retailer to comply with any applicable laws, regulations or ordinances or to maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
15. Termination. Either party may terminate this Agreement upon 30 days prior written notice; provided that no such termination shall have any effect on any breach of this Agreement or any obligation incurred under this Agreement prior to such termination. In addition to any remedies that may be provided under this Agreement, SNH may terminate this Agreement with immediate effect upon written notice to Retailer, if Retailer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Option to Repurchase. Within 10 days after the termination of this Agreement, Retailer shall submit to SNH a written schedule reflecting all Goods then owned by Retailer or in the Retailer's possession. Upon notice within 10 days following its receipt of such schedule from Retailer, SNH shall have the right, but not the obligation, to buy back all or a portion of such Goods, free of all liens, claims or encumbrances, at a price equal to the lower of Retailer's cost therefor and the then-prevailing price, pursuant to the following procedures. Retailer shall promptly deliver, at SNH's reasonable expense, the repurchased Goods in their original packaging (unopened and undamaged) to SNH's designated carrier for delivery to SNH. SNH has the right to set off or recoup any liability it owes to Retailer under this Section 15 against any amount owed by Retailer or liability for which Retailer is liable to SNH, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
17. Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of SNH, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by SNH to Retailer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by SNH in writing. Upon SNH's request, Retailer shall promptly return all documents and other materials received from SNH. SNH shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Retailer at the time of disclosure; or (c) rightfully obtained by SNH on a non-confidential basis from a third party.
19. Force Majeure. SNH shall not be liable or responsible to Retailer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SNH including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. Indemnification. Subject to the terms and conditions of this Agreement, Retailer shall indemnify, hold harmless, and defend SNH and its parent, officers, directors, managers, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or SNH arising out of or occurring in connection with: (a) Retailer's acts or omissions as a reseller of the Goods, including breach of this Agreement; (b) Retailer's advertising or representations that warrant performance of Goods beyond that provided by SNH's written warranty or based upon Retailer's business or trade practices; (c) any failure by Retailer or its personnel to comply with any applicable laws; or (d) allegations that Retailer breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement.
21. Assignment. Retailer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of SNH. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Retailer of any of its obligations under this Agreement.
22. Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than the Indemnified Party under Section 20.
23. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
24. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the state courts of the State of Delaware in each case located in the County of Sussex and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
25. Notices. All notices, requests and other communications under this Agreement must be in writing and addressed to the other party at its e-mail address set forth below (or to such other e-mail address that the receiving party may designate from time to time in accordance with this Section 22): Notice to SNH: Attention: email@example.com
Notice to Retailer: To the email address set forth on the first page of this Agreement.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Sections of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, Sections 10, 11, 13, 14, 16, 18, 20, 22, 24, 25, 26, 27 and 28.
28. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Retailer’s rights under Sections 8 and 10 are its exclusive remedies for the events specified therein.
29. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
30. No Franchise or Business Opportunity Agreement. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be deemed or construed as creating any partnership, joint venture or other form of joint enterprise, agency relationship, franchise, or business opportunity between the parties, employment or fiduciary relationship between the parties. Neither party shall, by virtue of this Agreement, have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Retailer has the sole discretion to determine Retailer's methods of operation, Retailer's accounting practices, the types and amounts of insurance Retailer carries, Retailer's personnel practices, Retailer's advertising and promotion, and Retailer's service areas and methods. The relationship created hereby between the parties is solely that of seller and reseller. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then SNH may immediately terminate this Agreement.