If the Company accepts the above application, the following provisions shall govern the relationship between the Company and Applicant as a merchandiser of the Company:
REQUIREMENTS:
1. Submit application for approval
2. Obtain your business license and Reseller License or GST right away & email copy to customerservice@sunsetscents.com
3. Place minimum initial order of $250 US Retail or more within 72 Hours of approval
4. Agree to sell ONLY for Sunset Scents and not another company that sells CANDLES
5. Create a unique business that doesn't lead others to believe that you are Sunset Scents the company directly by NOT using Sunsets Scents together in your business name, website or any other way.
6. While representing Sunset Scents I will not reference other candle companies
RECITALS
A. The Company is in the business of designing, manufacturing and selling, candles and related products to Independent Merchandisers (the "Merchandiser") and retailers located throughout the United States & Canada. B. The Company has developed or acquired or will develop or acquire, and owns or may own, relating to the Company business, certain trade secrets, know-how, information, intellectual property and other proprietary rights, including, without limitation, the Company's manner and methods of operation, merchandiser contracts, supplier and vendor relationships, business techniques, business plans, marketing plans, advertising relations, formulae, knowledge, data, customer lists, telephone numbers, prices, costs, personnel, referral sources, operating guidelines, operating manuals, marketing materials, manuals, developments and techniques concerning the Company and its business (collectively, the "Confidential Information"). Based on Applicant's information and representations presented above as well as payments made by Applicant, the Company and Applicant agrees as follows:
1. Territory. As a Merchandiser under this Contract, the Company shall NOT restrict you to defined territories based on geographic location, population, and all other appropriate factors affecting a specific area (the “Territory”). 2. Authorization. The Company hereby authorizes Applicant to be a Merchandiser of Products pursuant to this Contract and Applicant hereby agrees to become a Merchandiser pursuant to this Contract.
3. Contract Supersedes all Prior Agreements. This Contract supersedes and replaces all prior agreements, understandings and negotiations between the parties. Upon signing this Contract, the parties agree that all prior agreements, understandings and negotiations between them are hereby terminated and superseded.
4. Term and Termination.
4.1 Term. The initial term of this Contract shall end one year after the date this Contract is last signed, unless terminated prior thereto by either party. Unless either party gives notice of termination to the other, the term of this Contract shall automatically renew each year for a 1-year period.
4.2 Termination. This Contract may be terminated by either party upon written notice to the other. Upon any such Termination or other cancellation of this Contract, the rights granted by the Company to Applicant hereunder
shall expire. Notice must be sent certified mail to Sunset Scents LLC 7645 East Ray Road Suite 118 Mesa, AZ 85212 if applicant terminates. In the event Sunset Scents terminates you will be notified by certified mail.
4.3 Survival. The obligations under Section 9 of this Contract shall survive the expiration, termination or cancellation of this Contract. However, no expiration, termination or cancellation of this Contract shall constitute a waiver of any right or cause of action that either party may have based upon the events occurring prior to the expiration, termination or cancellation.
5. Rights and Responsibilities of a Sunset Scents Merchandiser. As a Merchandiser you may conduct home party sales, sell Products through fund-raising-type activities, sell Products to or through establishments regularly open for business (e.g., stores, offices, service businesses, fairs, shows). Applicant agrees that he/she will actively and regularly conduct sales activities (either directly or through employees, agents, or consultants) in the Territory. The Company will periodically provide Applicant with Product information, marketing materials, and training opportunities. The Company shall establish suggested prices that it believes will allow its Products to effectively compete with the products of other candle manufacturers, while providing Merchandisers with sufficient compensation for the promotional and support activities necessary to market Sunset Scent Products. However, Applicant is free to charge his/her customers any amount above retail pricing that he/she chooses. Merchandisers are free to market and make sales of Products via the internet. For such purpose only, the Company hereby licenses to Applicant the use of the Company’s logo and the “Sunset Scents” trademark but can not name their business simply "Sunset Scents". Applicant may only represent their selves as a Merchandiser of Sunset Scents, but may not otherwise use the Company name, hold itself out as the Company or as authorized in any fashion to bind or represent the Company. As a Merchandiser under this Contract, Applicant shall have the right to represent the Company in soliciting retail businesses to act as retailers of Products. Ineligible retailers include national and regional grocery stores, chain stores, discount stores, and big box retailers. Applicant shall have no authority to bind the Company or make representations to retailers on behalf of the Company. The Company, in its absolute discretion, may limit the number and location of retailers authorized to carry the Company’s Products. Merchandisers are also free to directly sell their own inventory of Products to eligible retailers. Applicant shall periodically monitor each retailer it obtains to carry the Company’s Products, introducing new or promotional Products or materials, and checking on Product displays, retailer satisfaction, and inventory levels. Applicant shall not be responsible for stocking store shelves for retailer. The Company reserves the right to market Products in all areas.
6. Applicant's Covenants as Merchandiser. As a Merchandiser under this Contract, Applicant agrees that he/she will:
• comply with all laws, regulations and ordinances applicable to the business and will obtain all licenses, authorizations, permits and other required governmental approvals;
• conform to customs and standards of business ethics and honest business practices and be truthful in all statements made to customers, potential customers, retailer, and consultants about the Products;
• not engage in any activities that are, or could be, detrimental to the Company, its name or its existing or future business;
• order in advance sufficient Products and related supplies to meet the reasonably anticipated sales of the business. In particular, to prepare for each holiday season, Merchandiser will order and purchase sufficient Products and supplies to enable him/her to have on hand a sufficient stock for each holiday;
• review and become familiar with all Product literature as well as training materials furnished by the Company;
• follow all policies and procedures furnished by the Company;
• protect the confidentiality of all Confidential Information of the Company; and
• indemnify and hold the Company and its officers, directors, employees, agents and other representatives and affiliates harmless from and against any and all demands, claims, suits, losses, damages, costs and other expenses, including attorney's fees and costs (including, without limitation, expert witness fees) incurred by the Company or by any of them, arising from Applicant's breach of any provision of this Contract, or arising from any intentional, reckless or negligent acts or omissions of Applicant in the business.
7. Payment Terms. ALL PRICING AND FUNDS ARE IN US DOLLARS. Applicant shall pay for all orders upfront when the order is place. No Product may be returned to the Company, except defective Products where the defect is caused by the Company. Defective Products must be reported directly to Sunset Scents within thirty (30) days of receipt of the Product by Applicant via email. When submitting a claim email a picture of candle issue and bottom label to customerservice@sunsetscents.com and only then will a decision be made for replacement. The Company may inspect the defective Product and shall have the option of either replacing the defective Product or give Applicant a product credit for the defective Product.
8. Confidential Information. During the term of this Contract and following the termination hereof, Applicant shall not disclose to any unauthorized person any Confidential Information without the Company's written consent, except as such disclosure may be required by law or court order. Applicant may, however, disclose such Confidential Information to its employees, agents, and independent contractors as is necessary to conduct Applicant’s business, provided that all such persons are bound by this same covenant of confidentiality.
Applicant acknowledges and agrees that all of the Confidential Information shall remain the sole and exclusive property of the Company, free and clear of all claims of Applicant.
Further, on request of the Company at any time and upon termination of this Contract, Applicant shall have no right to keep or use, and shall promptly return to the Company, all Confidential Information and related materials in
Applicant's possession or control. Applicant shall be deemed to be the Bailee thereof for the use and benefit of the Company and shall not at any time acquire any right, title or interest in or to such Confidential Information or related materials and shall safely keep and preserve the same. Applicant acknowledges that this Contract does not in any way, expressly or impliedly, grant or confer on Applicant any right, license or interest in or to any of the Confidential Information of the Company.
If Applicant breaches any part of this Section 8:
(a) Applicant agrees and stipulates that the Company shall be entitled to the immediate entry of a temporary restraining order and a preliminary injunction against Applicant and Applicant hereby acknowledges and stipulates that the Company shall suffer irreparable harm from any such breach; and
(b) Applicant agrees to pay to the Company as liquidated damages, and not as a penalty, the sum of $100,000, or such greater amount as the Company may be able to prove as actual damages for the breach of this Section 8. The parties stipulate that this amount of liquidated damages represents the actual estimated amount of damages likely to be suffered by the Company for breach of this Section 8.
9. Company's Obligations.
9.1 Notice of Changes. During the term of this Contract, Company agrees to notify Applicant of any changes in prices, fees or charges with respect to Products or related supplies, which prices Company may change at any time in its absolute discretion.
9.2 Policies and Procedures. The Company may, from time to time, publish certain policies and procedures. The Company agrees that, during the term of this Contract, the Company will furnish a copy of such policies and procedures to Applicant. Any such policies and procedures may be changed from time to time by the Company in its absolute discretion.
9.3 Product Deliveries. The Company will deliver to Applicant the Products ordered and paid for by Applicant within a reasonable time after such order is placed. However, the Company shall not be responsible for delayed delivery due to strikes, walkouts, labor disputes, acts of God, adverse weather conditions, governmental restrictions, governmental controls or interference, the unavailability of Product components, or other causes beyond the reasonable control of the Company.
10. Relationship Between the Parties.
10.1 Independent Merchandiser Relationship. The parties agree that Applicant is an independent merchandiser with respect to the Company. Nothing in this Contract shall be construed as creating any partnership, joint venture or employment relationship between the parties. This Contract does not constitute a hiring of Applicant by the Company, and does not constitute a contract of employment. The parties' intention is that Applicant is an independent merchandiser and not an employee of the Company, and that Applicant retain sole and absolute discretion and judgment in the manner and means of carrying on Applicant's business. Applicant shall not hold himself or herself out to any person as a partner, joint venturer, or employee of the Company. Applicant shall be free to hire such employees, agents, consultants, and other independent contractors as Applicant determines. Applicant shall indemnify and hold the Company harmless from any and all taxes, interest, penalties and attorney's fees which may be assessed against the Company, as well as all attorney's fees incurred by the Company, should it be determined by any governmental agency or by a court of competent jurisdiction, for purposes of taxation, government assessment or insurance coverage, that the relationship between the Company and Applicant is that of an employer and employee rather than that of an independent merchandiser.
10.2 No Authority. Applicant has no authority, and shall not represent that he or she has any authority, to enter into any contract or agreement on behalf of the Company, or to bind the Company in any way.
10.3 Worker's Compensation. Applicant acknowledges that the Company has no obligation whatsoever to obtain or maintain worker's compensation insurance for Applicant or any of his or her employees, agents or consultants. Rather, Applicant agrees to obtain and maintain, at Applicant's cost, any and all worker's compensation insurance required for any person hired by Applicant and, upon request, to provide to the Company evidence of such coverage and renewals thereof.
10.4 Expenses. Applicant shall be solely and completely responsible for all costs and expenses incurred by Applicant in starting and carrying on Applicant's business including, without limitation, office expenses, rent, computers, postage, telephones, auto, travel, advertising, trade shows, conferences, medical insurance, retirement plans, etc. Applicant shall use and pay for Applicant’s own transportation and be solely responsible for insuring Applicant’s vehicles.
10.5 Taxes. Applicant recognizes that it is Applicant's responsibility to pay taxes due on sales of the Products, business license taxes and fees, and all applicable income taxes, including estimated taxes, and all employment, selfemployment and unemployment taxes with respect to all earnings and net profits Applicant accrues or receives from Applicant's business. Applicant acknowledges that the Company has no responsibility to pay any such taxes. Applicant shall be solely responsible for any tax exemption certificate.
11. Other Covenants.
11.1 Cooperation. Upon request, Applicant shall cooperate and assist the Company, at the Company's cost and expense, in any dispute, controversy or litigation in which the Company may be involved, including, without limitation, Applicant's participation in any court or arbitration proceedings, the giving of testimony, the signing of affidavits, or such other personal cooperation as the Company or counsel for the Company may reasonably request. 11.2 Non-exclusive Remedies. The rights and remedies of the Company shall not be mutually exclusive, and the exercise of one or more of the rights or remedies provided in this Contract or otherwise shall not preclude the
exercise of any other rights or remedies provided for by this Contract or by law, equity, statute or otherwise. 11.3 No Alteration. The rights granted to Applicant to be a Merchandiser under this Contract does not allow Applicant any right to alter or copy any of the Company's Products, labeling, packaging, literature, or intellectual property without the prior written consent of the Company.
12. General Provisions. The following provisions are also integral parts of this Contract:
(a) Applicant consents to the jurisdiction of the courts in Arizona, with venue in Mesa, for any action hereunder. (b) The Company and Applicant each hereby irrevocably waives the right to a trial by jury in any and all actions or proceedings brought with respect to any provision of this Contract or the enforceability thereof and/or with respect to any claims arising out of, or related to the termination of this Contract.
(c) Applicant may not assign or transfer this Contract without the Company's prior written consent, which consent shall not be unreasonably withheld. Any assignee must sign a counterpart of this Contract. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successor and permitted assigns. If Applicant assigns this Contract to a corporation, limited liability company or other entity organized by the Applicant or by the principals thereof, Applicant shall remain personally liable to perform this Contract. (d) The provisions of this Contract are severable, and should any provisions hereof be void, unenforceable or invalid, such void, unenforceable or invalid provisions shall not affect any other provisions of this Contract. To the extent any provision of this Contract is void, unenforceable or invalid, this Contract shall be considered amended to the smallest degree possible in order to make such provision effective, enforceable and valid.
(e) This Contract may not be modified except by an instrument in writing signed by the parties hereto.
(f) This Contract shall be interpreted, construed and enforced according to the laws of the State of Arizona.(g) Failure to insist upon strict compliance with any provision of this Contract shall not be deemed a waiver of such provision, nor shall any waiver or relinquishment of any right, power or privilege hereunder at any one time or more times be deemed a waiver of relinquishment of such right, power, or privilege at any other time or times.
IN WITNESS WHEREOF, the parties have signed this Contract on the dates indicated. Company: SUNSET SCENTS, LLC. a Arizona limited liability company