RETAILER AGREEMENT
This Agreement (the “Agreement”) is entered into on [Effective Date] (the “Effective Date”), between Gemstone Memorials, Inc. (“Supplier”), with its principal place of business located at 545 North Canfield-Niles Road, Youngstown, Ohio 44515 and [Retailer Name] (“Seller”) with its principal place of business located at: [Retailer Address]. Supplier and Seller are sometimes individually referred to herein as a “Party” and collectively as the “Parties”).
WHEREAS, Supplier is in the business of providing services in the production and sale of Monuments and Memorials, and desires to appoint Seller as an authorized retailer of certain memorial products identified herein pursuant to the terms and conditions set forth in this Agreement.
WHEREAS, Seller is a full-service funeral home, cemetery, or memorial provider, offering a range of services for families, and desires and is willing to offer and sell the Products pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above declarations and the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
1. Appointment. The Supplier hereby appoints Seller as an authorized retailer of the Supplier's products. Supplier shall provide Seller with a selection of Monuments to display as an option for its clients, as further described in the attached Exhibit A, attached hereto and incorporated herein by reference (collectively referred to as the “Products”). This appointment is non-exclusive and Supplier reserves the right to appoint other sellers to sell the Products within the market area of Seller.
2. Purchase Orders; Pricing; Credit.
(a) Purchase Orders. Seller shall order Products in accordance with the terms and conditions of this Agreement. Orders for the purchase of Products (“Purchase Orders”) must be submitted to Supplier by Seller through e-mail, USPS mail, facsimile, or Gemstone’s online ordering system, with the provided Purchaser Order attached hereto as Exhibit B. Each Purchase Order shall specify (i) the specific monument being ordered, (ii) Product prices, (iii) payment terms, (iv) detailed information to be displayed on the Monument, and (v) location where the monument is to be placed.
(b) Acceptance of Purchase Order by Supplier. Purchase Orders are subject to written acceptance by an authorized representative of Supplier. Supplier reserves the unconditional right to reject for any reason any Purchase Order, in whole or in part. Purchase Orders submitted by Seller shall not be binding on Supplier until the earlier of written acceptance by Supplier and the approval of a proof, layout and rendering of the Purchase Order that is accepted and approved by the Seller and signed off by the client. Notwithstanding the foregoing, Supplier reserves the right to refuse, cancel or delay any Purchase Order placed by Seller and accepted by Supplier when Seller is delinquent in payments or when Seller has failed to perform any of its obligations under this Agreement.
(c) Invoices and Payment Terms. Seller shall invoice its clients for the sale of any of Supplier’s Products. Seller shall retain thirty percent (30%) commission of the total sale, for its services to Supplier. All monies collected by Seller are due and payable within thirty (30) days from the date of installation. Payments due hereunder must be made, at Supplier's sole discretion and option, by business check, wire or ACH transfer, credit or debit card (a 4% [four percent] fee of the total price will be added) or online payment gateway. The Supplier reserves the right to change or modify payment terms upon thirty (30) days' notice to Seller. Seller shall have no right of offset or withholding under this Agreement. Any amounts not paid by Seller when due to Supplier shall be subject to interest charges, from the date due until paid, at the rate of 2 percent (2%) [per month] or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Supplier from Seller, for any reason, become past due, Supplier may at its option and without further notice withhold further shipment of Products until all invoices have been paid in full.
(d) Prices; Price Reductions. Supplier will establish prices for Products and shall at all times have the right, which may be exercised in its sole discretion, to increase or decrease the prices of its Products. Such increases or decreases shall be deemed effective upon notice to Seller which shall be sent in writing, and shall apply to all Purchase Orders submitted after such notice has been provided and those Purchase Orders which have been already been submitted to but have not yet been accepted by the Supplier.
(e) Past Due Amounts. If any amount due Supplier by Seller, for any reason, becomes past due, Supplier may at its option and without further notice withhold further sales or deliveries to Seller until all invoices are paid in full. If any indebtedness shall be more than thirty (30) days past due, in addition to those additional remedies set forth in this Agreement, Supplier may at its election terminate this Agreement upon thirty (30) days written notice to Seller, and all sums owed by Seller shall become immediately due and payable regardless of the payment terms set forth elsewhere in this Agreement.
(f) Taxes. Seller shall be responsible for any state, or local sales, use, value added or other tax levied, arising out of or related to any of the transactions contemplated by this Agreement. Seller must pay directly, or reimburse Supplier for the amount of such sales, use, value added or other tax, tariff, duty or assessment which Supplier is at any time obligated to pay or collect.
(g) Records. Seller shall, at Supplier's request, provide full and complete records which fully support any discrepancies Seller and/or Supplier may claim exist between any amounts the Supplier claims are due from Seller and the amounts Seller claims are owed to or are due from Supplier.
3. Shipments of Products. All Products ordered shall be delivered and installed per the terms of the Purchase Order. The Parties agree, however, that shipment of any Products ordered from Supplier under this Agreement may be delayed for a period of time sufficient to allow Supplier to manufacture and assemble or otherwise acquire the Products, and the Parties further agree that Supplier shall not be held liable to Seller or any other party for any delay in shipment of any Purchase Order.
4. Warranty. Supplier makes no warranties or representations to Seller, except as set forth in Supplier's Limited Warranty accompanying the Products (the “Limited Warranty”) provided to the clients. All sales shall include and be subject to Supplier's standard Limited Warranty, warranty disclaimers and limitations on liability in effect for the Products at the time of shipment of the Products, unless expressly agreed otherwise in a separate document referencing this Agreement and signed by authorized representatives of the Parties. Supplier reserves the right to change any of the terms of the Limited Warranty at any time, upon notice to Seller. Seller will not alter the Limited Warranty, warranty disclaimers and limitation of liability without the prior written authorization of Supplier, nor extend or make any additional warranty or representation regarding the Products unless expressly authorized by Supplier.
5. Confidential Information.
(a) Confidential Information. The Seller acknowledges and agrees that during the term of this Agreement, it may receive confidential information from the Supplier. “Confidential Information” shall mean (i) information relating to the Supplier, and its affiliates, products or business including, but not limited to, the business plans, financial records, customers, suppliers, products, product samples, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, Product white paper, and know-how or other intellectual property, that may be at any time furnished, communicated or delivered by Supplier to Seller, whether in oral, tangible, electronic or other form and (ii) all other non-public information provided by Supplier to the Seller, but not limited, to financial, technical and business information, and all non-promotional materials furnished by the Supplier to Seller.
(b) Exceptions. The Seller shall not have any obligations to preserve the confidential nature of any Confidential Information that (a) it can demonstrate by competent evidence was rightfully in the Seller's possession before receipt from the Supplier; (b) is or becomes a matter of public knowledge through no fault of the Seller; (c) is rightfully received by the Seller from a third party without a duty of confidentiality; or (d) is disclosed by the Seller with the Supplier's prior written approval. In the event the Seller is requested in any legal action or proceeding to disclose any Confidential Information, the Seller shall, unless prohibited by applicable law, give the Supplier prompt notice of such request, and shall reasonably assist the Supplier in its efforts to obtain an appropriate protective order.
(c) Use of Confidential Information; Standard of Care. The Seller shall maintain the Confidential Information in confidence and disclose the Confidential Information only to its employees who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are under binding confidentiality obligations no less restrictive as this Agreement. The Seller shall remain responsible for breaches of this Agreement arising from the acts of its employees. The Seller shall protect Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information.
6. Indemnification.
(a) Supplier's Indemnity Obligations. Supplier hereby agrees to defend, indemnify and hold harmless Seller from and against any and all third party Claims (i) arising out of any defects in any Products existing at the time such Products are sold by Seller to its client, or (ii) arising out of the gross negligence or willful misconduct of Supplier, its employees, agents or representatives with respect to Supplier's performance of this Agreement; provided that Supplier is promptly notified in writing of the Claim and given complete control of the defense and settlement of the Claim. Seller shall reasonably cooperate with Supplier, its insurance Supplier and its legal counsel in its defense of such Claims. This indemnity shall not cover any Claims in which Seller fails to provide Supplier with prompt written notice which lack of notice prejudices the defense of the Claim. Seller shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at Seller's expense.
(b) Seller's Indemnity Obligations to Supplier. Seller hereby agrees to defend, indemnify and hold harmless Supplier, its affiliates and their respective officers directors, employees and agents from and against any and all Claims (i) arising out of the acts or omissions of Seller, its employees, agents or representatives with respect to its performance of this Agreement, (ii) arising out of the alteration or modification of the Products by Seller or its employees, agents or representatives. Supplier shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at Supplier's expense.
7. Limitation of Liability; Actions. IN NO EVENT SHALL SUPPLIER BE LIABLE TO SELLER UNDER THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN [ONE (1)] YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
8. Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for one (1) year (the “Initial Term”) unless terminated earlier as provided in this Agreement. The Agreement shall automatically be extended for additional one (1) year periods unless either Party provides written notice to terminate at least ninety (90) days prior to the expiration of the Initial Term or any renewal term.
9. Termination. Notwithstanding anything in this Agreement that may be interpreted to the contrary, Supplier may terminate this Agreement without cause and without liability upon 30 days’ prior written notice to Seller. Either party may terminate this Agreement for any material breach of the Agreement that is not cured to the non-breaching party’s satisfaction within 30 days of written notice that specifies the breach. Upon termination, Seller will cease all marketing and sale of the Products. Termination of this Agreement will not affect either party’s rights or obligations with respect to Products distributed by Seller prior to the effective date of the termination. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination.
10. General Terms.
(a) Independent Contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party's employees or agents. Neither Supplier nor Seller has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Seller shall be solely responsible for payment of its employees' and personnel's salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
(b) Assignment. Neither this Agreement, nor any right or interest herein, may be assigned by either party, in whole or in part, without the party’s express written consent, which consent shall be at its sole discretion.
(c) Notices. Unless otherwise agreed to by the parties, all notices shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, or (iv) fax with confirmation, addressed to the Party to be notified at the addresses listed above.
(d) Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, pandemics, epidemics, local disease outbreaks, public health emergencies, or acts of God, in which event the non-performing Party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within [three (3)] business days of its occurrence.
(e) Governing Law; Venue. This Agreement shall be governed by the laws of the State of Ohio.
(f) Collection Expense. If Supplier incurs any costs, expenses, or fees, including attorney's fees and professional collection services fees, in connection with the collection or payment of any amounts due from the Seller under this Agreement, Seller agrees to reimburse Supplier for all such costs, expenses and fees.
(g) Cumulative Remedies. Except as otherwise provided for in this Agreement, the rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
(h) Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
(i) Headings; Construction The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly for or against any of the parties hereto, regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof, and any ambiguity that might exist herein shall not be construed against the drafting Party.
(j) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others.
(k) Waiver. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision in the Agreement thereafter. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party.
(l) Entire Agreement; Modification. This Agreement is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written, oral, electronic or otherwise, relating to the subject matter of this Agreement. This Agreement may be modified only by a written amendment signed by authorized representatives of both Parties.