FERADYNE OUTDOORS LLC d/b/a FERADYNE
NORTH AMERICAN AUTHORIZED RESELLER AGREEMENT
THIS RESELLER AGREEMENT (the “Agreement”) is made effective the date of its execution (the “Effective Date”), by and between Feradyne Outdoors LLC d/b/a Feradyne, with principal offices at 1230 Poplar Ave., Superior, WI 54880 (“Feradyne”), and the authorized reseller that has executed this Agreement (“Reseller”). Feradyne and Reseller are each sometimes referred to herein as a “party” or collectively as the “parties.” The parties agree as follows:
Definitions.
- Products: The (“Product(s)”) shall mean the approved Feradyne products and related accessories listed in Schedule A and approved by Feradyne.
Territory: The (“Territory”) shall mean the territories listed in Schedule B or otherwise approved by Feradyne.
End-User: An (“End-User”) shall mean any purchaser of the Product(s) from the Reseller who is the ultimate consumer for whom the Product is designed and who does not intend to resell the Product(s) to a third-party.
- Authorized Distributor: An (“Authorized Distributor”) shall mean a distributor who is a party to a then-current Authorized Distributor Agreement with Feradyne, and resells such Feradyne products to resellers within the Territory.
- Licensed IP: The (“Licensed IP”) shall mean the trademarks, tradenames, product images, and/or marketing banners provided by Feradyne in writing in the approved image or form provided by Feradyne.
- Transship: (“Transship”) shall mean the sale of Product(s) to any entity other than an End-User.
- Term: The (“Term”) of this Agreement shall begin on the Effective Date and, unless sooner terminated as provided herein, continue in full force and effect for one (1) year from the Effective Date. This Agreement will automatically renew for consecutive one (1) year Terms thereafter.
1. Appointment. For the Term of this Agreement, Feradyne grants to the Reseller and the Reseller accepts the non-exclusive right to fulfill orders and to market, sell, and distribute the Products to End-Users located in the Territory only in brick and mortar locations and on the Internet URLs and/or locations listed in Schedule C and approved by Feradyne.
Reseller is PROHIBITED from selling any Products on the Internet unless specifically approved by Feradyne in writing in Schedule C.
2. Third-Party Internet Marketplaces. Reseller, ONLY if listed and approved by Feradyne in Schedule C, shall be allowed to sell or advertise Products on certain approved third-party Internet marketplaces under certain approved names.
Reseller is PROHIBITED from selling any Products on Internet Marketplaces unless specifically approved by Feradyne in Schedule C.
3. Transshipping. Reseller shall not knowingly transship the Products. Specifically, Reseller shall not sell or transfer any of the Products to any person or entity for resale. Reseller agrees to restrict, cease, or limit the sale of Products to anyone at the request of Feradyne. Reseller shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Feradyne that Reseller purchased or obtained from a source other than directly from Feradyne or a Feradyne Authorized Distributor. Reseller shall not obscure or alter any Product or its packaging in any fashion.
4. Geographic Sales Boundary. Reseller may only sell and advertise for sale the Products within the Territory. Feradyne hereby expressly prohibits the Reseller from soliciting or consummating sales outside the Territory.
5. Sales by Auction. Sales by the Reseller of Product(s) by way of online auction are prohibited without prior written permission from Feradyne.
6. Commingled Inventory. Unless approved in writing by Feradyne, Reseller shall not cause or allow the Products to be sold anywhere or in any manner, including a third-party Internet marketplace, where the Reseller is unable to certify that all Products purchased from Reseller are fulfilled with Products that the Reseller purchased from Feradyne or a Feradyne Authorized Distributor.
7. Bundling. Reseller shall not offer for sale any product bundles containing any Product(s) without prior written permission from Feradyne.
8. Liquidated Damages. For each occasion that Reseller breaches Sections 1, 2, 3, 4, 5, 6, or 7 of this Agreement by engaging in the unauthorized advertising, distribution, offering for sale, or sale of Products, in addition to all other remedies available to Feradyne under this Agreement and at law, Reseller agrees to pay Feradyne, as liquidated damages and not as a penalty, the greater of the following amounts: (i) the costs and fees associated with Feradyne’s investigation and enforcement regarding the unauthorized conduct, including, but not limited to, attorney’s fees; or (ii) Five Hundred United States Dollars ($500.00) per Product per unit of Product. The parties agree that these damages are not punitive.
9. Intellectual Property and Website Content. Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Licensed IP for the sole purpose of advertising and promoting the sale of Products to End-Users within the Territory, subject to the restrictions and limitations described in Schedule D of this Agreement.
10. Reseller Obligations. During the Term of this Agreement, Reseller shall:
a. promote, market, and sell the Products;
b. maintain qualified personnel with knowledge of the specifications, features, and use of the Products;
c. provide quality post-sale return support for all customers, including End-Users that purchase the Products;
d. agree to restrict, cease, or limit sales to any customer at the request of Feradyne;
e. preserve the reputation and goodwill of Feradyne and the Products and avoid any illegal or unethical actions, including, but not limited to, false advertising and “bait and switch” practices;
f. comply with all quality control standards, including, but not limited to, advertising, storage, and shipping requirements, as announced from time to time by Feradyne;
g. only use the current Licensed IP in association with the Products, unless Reseller obtains written permission from Feradyne;
h. not bid on any current or future trademarks used or owned by Feradyne as keywords on Google Ads or similar paid search engine, including Internet marketplace paid search programs, without prior written permission from Feradyne;
i. only use those Product images, descriptions, logos, marketing banners, and video clips provided or authorized in writing by Feradyne on any website, advertisement, sponsored link, or any other on-line marketing used, paid for, or associated with Reseller. Any marketing assets not provided by Feradyne must be approved, in writing, by Feradyne prior to use;
j. conduct and maintain at all times its operation in compliance with all applicable United States or Canada federal, state, or province laws and regulations, FTC/Competition Bureau consent orders, county and city ordinances and regulations, and any other applicable law, regulation, or ordinance. Reseller agrees not to engage in any unfair trade practices. Reseller shall indemnify and hold Feradyne harmless from any cost or liability, including costs of litigation and attorney’s fees as may be incurred in defending any civil, criminal, or administrative action brought against Feradyne or its officers, employees, or agents that may result from a violation of this paragraph;
k. operate a physical street address and a landline telephone number for contact by its customers and must advise customers of this physical address and the landline telephone number. Post office boxes and mobile telephone numbers are not sufficient; and
l. comply with additional terms of sale as otherwise provided by Feradyne and as such terms may change from time to time by Feradyne in its sole discretion.
11. Breach. Any violation of the terms of this Agreement shall be deemed a breach of the Agreement, entitling Feradyne to terminate the Agreement immediately or take any other action allowed under the law.
12. Termination. This Agreement may be terminated as follows:
a. by Feradyne immediately upon notice to Reseller in the event of a breach of any of the terms of this Agreement; or
b. by Feradyne or Reseller, without cause or liability, upon thirty (30) days’ prior written notice to the other party.
13. Obligations Upon Expiration/Termination.
a. Authorization. Upon expiration or termination of this Agreement for any reason, Reseller will no longer be an authorized reseller of Feradyne Products. Reseller shall immediately cease to purchase, advertise, and/or sell Feradyne products; cease to represent itself as an authorized reseller of Feradyne products; cease all use of Feradyne’s intellectual property; and return to Feradyne all advertising, promotional, display, and other materials that have been furnished to Reseller by Feradyne. Reseller agrees to immediately remove any and all Internet listings of Feradyne products. The acceptance by Feradyne of a Reseller’s purchase order after the expiration or termination of this Agreement shall not be deemed a renewal or extension of this Agreement, or a waiver of its termination or expiration or a waiver of any prior breach. However, Feradyne shall be under no obligation to fulfill any orders by Reseller after termination or notice of such termination.
b. Repurchase Option. Within ten (10) days of termination of this Agreement for any reason, Reseller agrees to provide Feradyne with a list of its inventory of the Products. Feradyne, at its option, will have the right to repurchase from Reseller any or all saleable Products in Reseller’s inventory by sending written notice of the exercise of such option within thirty (30) days from the effective date of expiration or termination or the date Feradyne receives the foregoing list, whichever last occurs. The purchase price of such Products will be at the net invoice prices at which the Products were originally purchased by Reseller, less any discounts or allowances that Feradyne may have given Reseller on account of such Products. If such option to repurchase is exercised by Feradyne, Reseller agrees, at Reseller’s expense, to deliver Reseller’s inventory of the Products to Feradyne in their original packages within thirty (30) days of receipt of Feradyne’s notice of exercise. If such option to repurchase is not exercised by Feradyne, Reseller is prohibited from reselling its remaining inventory of the Products on the Internet.
14. Unilateral Policy. Reseller acknowledges that Reseller has been informed of Feradyne’s Unilateral Policies as they apply to the advertisement for sale of Feradyne Products from resellers to End-Users in the United States and Canada. There is no agreement, express or implied, between Feradyne and Reseller with respect to the advertised or resale pricing of Products. If any director, officer, employee, representative, or other agent of Feradyne tries to coerce Reseller to agree to the price at which Reseller advertises or resells Feradyne Products, such action shall be considered void, unauthorized, and without effect and Reseller shall promptly notify Feradyne’s Unilateral Policy Committee at fdpolicycom@feradyne.com.
15. Amendments & Waivers.
a. Except as otherwise set forth in Section 15(b) of this Agreement, this Agreement may be amended, waived, or modified only by a written instrument signed by an authorized officer of both parties stating specifically that it is an amendment, waiver, or modification. No waiver of any provision at any particular time shall be deemed a permanent waiver of such provision, or a waiver of any other provision of this Agreement. Failure to enforce a provision shall not be deemed a waiver.
b. Feradyne may amend any Schedule in this Agreement by providing notice to the Reseller, and any such amendment shall become effective immediately upon delivery of such notice.
16. Entire Agreement. This Agreement, the Schedules, any additional terms and conditions of Feradyne, Feradyne’s written invoices, and any and all personal guarantees or assurances of payment by Reseller set forth the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.
17. Limitation on Liability. RESELLER ACKNOWLEDGES AND AGREES THAT FERADYNE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT RESELLER MAY INCUR FROM DELAYED SHIPMENT, NON-SHIPMENT, OR PRODUCT SELECTION, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), WARRANTY, OR OTHERWISE. IN NO EVENT SHALL FERADYNE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT FERADYNE SHALL BE OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
18. Law and Forum. This Agreement shall be deemed to have been entered into and fully performed in the State of Wisconsin and shall be governed by and construed in accordance with the laws of the State of Wisconsin without regard for the conflicts of laws rules thereof. Reseller agrees that all controversies, disputes, and claims arising out of this Agreement shall be adjudicated exclusively by a court of competent jurisdiction within Douglas County or the United States District Court for the Western District of Wisconsin, except that any judgment in any such action may be enforced in other jurisdictions by suit or in any other permitted manner. Reseller irrevocably consents to the jurisdiction and venue of the state and federal courts of Wisconsin and waives any rights to seek a transfer of venue for any reason or to claim that the forum is inconvenient.
19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
20. Choice of Language. The parties hereto confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including notices, have been and shall be drawn up in the English language only.
Les parties aux presént confer ment leur volonté que cette convention de même que tous les documents, y compris tous avis, s’y rattachent, soient rédigés en anglais seulement
21. Electronic Execution. In accordance with the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. (“ESIGN”), the Personal Information Protection Electronic Documents Act, SC 2000, c. 5 (“PIPEDA”), the Uniform Electronic Commerce Act (“UECA”), and the Quebec Act to Establish a Legal Framework for Information Technology, SQ 2001, c. 32, the parties hereby agree to execute this Agreement using electronic means including the use of electronic signatures by the parties, which the parties agree shall have the full force and legal effect as if the electronic signatures were traditional hand-written signatures. Reseller acknowledges that it has the ability to retain this Agreement either by printing it or saving it.