2. Non-Exclusive Grant of Limited Distribution Rights
LitezAll® hereby grants to Reseller non-exclusive right to distribute the Products subject to certain express limitations. Such limitations include that the distribution shall: (1) occur only in the Territory; and (2) be only to either (a) end users (i.e., consumers) or to (b) brick and mortar resellers (“Stores”) who sell only to end users/consumers. Further, Reseller may not modify or make derivative works of the Products.
3. Express Prohibition on Internet Sales
Reseller and its customers are strictly prohibited from offering to sell and from selling the Products on the Internet, including in particular, Amazon. com and Ebay.com, except that Reseller may sell the Products on its own proprietary Internet websites, i.e., websites that are not a part of third party websites and wherein Reseller is the direct owner of the website. Reseller agrees to abide by LitezAll’s Online Selling Agreement (attached).
4. Express Prohibition on Export
Reseller and its customers are strictly prohibited from exporting the Products outside of the Territory.
5. Minimum Advertised Pricing
(a) For sales to end users/consumers, Reseller agrees to comply with, and remain in compliance with, LitezAll's current Online Minimum Advertised Pricing (“MAP”) policy and schedule for sales to end users, which are attached hereto as Exhibit A. Online MAP for end users is updated from time to time.
(b) For sales to Stores, Reseller agrees to comply with, and remain in compliance with, LitezAll's current Minimum Advertised Pricing policy and schedule for sales to Stores, which are attached hereto as Exhibit B. MAP for Stores is updated from time to time. No MAP for stores is applicable at this time.
6. Price and Payment
The price per unit Product to be charged by LitezAll to Reseller shall be as set forth on LitezAll’s pricing sheet as revised from time to time. Reseller shall be responsible for making timely payment to LitezAll according to LitezAll’s standard payment and credit terms and conditions which shall apply unless the Parties agree otherwise in writing.
7. Liquidated Damages for Violating MAP
The Parties agree that in the event Reseller violates LitezAll’s MAP policies as described in Section 6 herein by advertising Products for sale below MAP, that LitezAll’s liquidated damages per unit shall be the difference between Reseller’s advertised price and MAP, plus $1. For example, if Reseller offers to sell at $7 and MAP is $9, Reseller shall be liable to LitezAll for liquidated damages in an amount of $3 per Product sold by Reseller. Liquidated damages is in addition to any other remedies available to LitezAll and as set forth herein.
8. Intellectual Property Ownership
Reseller acknowledges that LitezAll owns all intellectual property rights relating to the brand "LitezAll", “Promier Products”, “KODIAK” including but not limited to the trademark registered with the United States Patent and Trademark Office having registration number 4902840, additional pending trademark applications, common law trademark rights in the names of the Products, common law trade dress and copyright rights in the design and packaging of the Products, and derivative works of the aforementioned (collectively, the “IP”). Reseller agrees that LitezAll trademark has become widely known among consumers, has achieved secondary meaning, that the IP is valid and enforceable, and Reseller agrees not to challenge the validity or enforceability of the IP or infringe LitezAll’s rights in the IP.
9. Non-Exclusive Grant of Limited Intellectual Property License
LitezAll grants Reseller a limited and non-exclusive license to use the IP solely for use in connection with Reseller’s distribution of the Products. Such license is subject to the following conditions:
(a) Reseller’s use of the term “LitezAll” must always appear with the trademark notice ® so that it appears as “LitezAll®”;KODIAK®
(b) Reseller shall not remove any IP identification marks, shall not modify the IP, and shall not make derivative works of the IP;
(c) Reseller shall not expressly or impliedly represents that it is the manufacturer or ultimate source of the Products;
(d) Reseller shall always use LitezAll® ; KODIAK® trademark in connection with the Products;
(e) Reseller shall not offer to sell similar products that have a trademark that is similar to LitezAll®; KODIAK® and
(f) to the extent Reseller becomes aware of a misuse of the IP or an infringement of LitezAll’s rights in the IP, Reseller shall promptly inform LitezAll. Reseller agrees that all good will accruing due to the use of the IP pursuant to this Agreement shall inure to the benefit of LitezAll.
10. Representations and Warranties
(a)LitezAll represents and warrants: (i) as to the truth and accuracy of its identity, structure and principal address as identified in the first paragraph herein; (ii) that LitezAll has the right and authority to enter into this Agreement and that by entering into this Agreement there will be no conflict with other agreements to which LitezAll is a party; (iii) that the Products sold to Reseller hereunder will be fit and safe for their intended use when used strictly as intended and free from defects design, material and workmanship; (iv) that the IP will not infringe the intellectual property rights of any third party; and (v) that Reseller will receive good and valid title to the Products, free of any liens or encumbrances. EXCEPT AS SET FORTH IN THIS SECTION 12, LitezAll MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) Reseller represents and warrants: (i) as to the truth and accuracy of its identity, structure and principal address as identified in Section 2 herein; (ii) that Reseller has the right and authority to enter into this Agreement and that by entering into this Agreement there will be no conflict with other agreements to which Reseller is a party; and (iii) that it will use commercially reasonable efforts to comply with the limitations set forth herein concerning the grant of distribution rights and the grant of a license to the IP, including in particular, complying with (1) the ban on selling the Products on third party Internet sites, (2) the ban on exports, (3) MAP pricing, and (4) usage of IP.
11. Indemnification
(a)Reseller hereby agrees to indemnify and hold LitezAll harmless from and against any and all actions, suits, proceedings, demands, assessments or judgments, costs or expenses (including, but not limited to, reasonable attorneys’ fees) (“Damages”) resulting from or relating to a claim by a third party against LitezAll arising out of (i) Reseller’s or its officers, directors, employees, and other representatives (collectively, “Representatives”) negligence or more culpable conduct; (ii) any bodily injury or death or damage to property arising out of the negligence or more culpable conduct of Reseller or any of its Representatives; (iii) breach of this Agreement by Reseller or its Representatives including any Reseller breach of a representation or warranty contained in this Agreement; and (iv) any failure of Reseller or any of its Representatives to comply with any applicable laws.
(b) LitezAll hereby agrees to indemnify and hold Reseller harmless from and against any and all Damages resulting from or relating to a claim by a third party against Reseller arising out of (i) LitezAll’s or its Representatives’ gross negligence or more culpable conduct; (ii) any bodily injury or death or damage to property arising out of the negligence or more culpable conduct of LitezAll or any of its Representatives; (iii) any breach of this Agreement by LitezAll or its Representatives including any LitezAll breach of a representation or warranty contained in this Agreement; and (iv) any failure of LitezAll or its Representatives to comply with any applicable laws.
12. Limitation of Liability
EXCEPT FOR LIABILITY FOR INDEMNIFICATION, NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGESARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY; IN NO EVENT SHALL LITEZALL’S LIABILITY FOR DAMAGES EXCEED THE PRICE PAID BY RESELLER FOR THE PRODUCT WHICH GIVES RISE TO THE CLAIM; AND REMEDY SHALL BE LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCTS. NOTWITHSTANDING THE FOREGOING, LITEZALL’S LIABILITY PURSUANT TO SECTION 13 ABOVE SHALL NOT EXCEED THE AMOUNT OF ANY INSURANCE PROCEEDS ACTUALLY RECEIVED BY IT.
13. Term
The term of this Agreement shall commence on the date of the later signature hereto (the “Effective Date”) and terminate at midnight on the one (1) year anniversary of the Effective Date (the "Term"). Then the terms of Agreement will be issued monthly until a new Agreement is produced for the following year.
14. Right to Terminate
Notwithstanding Section 15 herein (Term):
(a) either Party may terminate this Agreement at any time upon thirty (30) days' written notice to the other party;
(b) LitezAll may terminate this Agreement in accordance with Section 17 upon a material breach of this Agreement by Reseller (Breach);
(c) Reseller may terminate this Agreement upon a Breach by LitezAll which is not cured within ten (10) business days of written notice of the alleged Breach; and
(d) either party may terminate this Agreement immediately in the event the other party is declared bankrupt or a petition for bankruptcy has been filed (or similar proceeding) with respect to the other party.
15. Breach
In the event that LitezAll learns that Reseller is in material breach of this Agreement, LitezAll shall promptly provide written notice of the breach to the Reseller. In the event that the Reseller fails to remedy the breach to LitezAll's satisfaction within forty-eight (48) hours of such notice, LitezAll may instruct Reseller in writing to discontinue offering to sell the Products, and in the event of such instruction Reseller shall comply by promptly ceasing to offer to sell the Products, until the breach is remedied. Notwithstanding Section 15 of this Agreement (Term), if Reseller fails to cure the breach within one week of notice, LitezAll may immediately terminate this Agreement by providing written notice to Reseller.
16. Effect of Termination
Upon termination of this Agreement, the rights granted by LitezAll to Reseller under this Agreement shall terminate, including in particular, Reseller’s right to distribute the Products and Reseller’s license to use the IP. Upon such termination, at LitezAll’s sole option, (i) LitezAllshall repurchase all of Reseller’s inventory at Reseller’s cost, or (ii) Reseller shall have the right to liquidate its inventory. LitezAll shall have the right to exercise the foregoing option at any time following the termination of this Agreement. The following Sections of this Agreement shall survive termination of this Agreement: Sections 1, 4-6, 8-10, 13, 14, 18 and 21.
17. Written Notices
All written notices made pursuant to this Agreement shall be made by overnight mail, to LitezAll at the address identified in the first paragraph of this Agreement, Attention “President”, and to Reseller at the address identified in Section 2 of this Agreement and shall be effective as of the day after deposit in the mail.
18. Status of the Parties
Nothing in this Agreement shall be construed as creating a joint venture, partnership, fiduciary, or agency relationship between LitezAll and Reseller. LitezAll and Reseller are independent with respect to one another, and neither shall hold itself out as being a representative or agent of the other or otherwise having authority to act on behalf of, make representations or warranties on behalf of, incur liabilities on behalf of, or to bind, the other.
19. Miscellaneous
(a) Neither Party shall assign this Agreement, or sublicense any of the rights granted by this Agreement, to any extent, without the written consent of the other.
(b) This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
(c) This Agreement shall be deemed to have been executed and delivered in the County of LaSalle, State of Illinois. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Illinois without giving effect to conflicts of law. Each of the Parties irrevocably submit to the exclusive jurisdiction of the Federal and State courts located in the State of Illinois in LaSalle County for the purposes of any suit, action or other proceeding in connection with or relating to this Agreement. Each Party hereby waives any objection it may have based on lack of personal jurisdiction, improper venue, or inconvenient forum. If any legal action or proceeding is commenced with respect to this Agreement, the
prevailing Party shall be entitled to all attorneys’ fees, expenses and court costs in addition to any other relief which the Court awards to the prevailing Party.
(d) If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.
(e) A waiver of any breach of any provision of this Agreement must be in writing and does not constitute a waiver of any other provision.
(f) This Agreement represents the entire Agreement with respect to matters contemplated herein. This Agreement shall not be amended to any extent except by a writing executed by the Parties. This Agreement and any amendments hereto may be executed in counterparts, all of which together shall constitute a single, original instrument. Facsimile and electronic signatures shall be deemed to be originals.