SWAMPFOX OPTICS INC.
UNITED STATES AUTHORIZED INTERNET RESELLER AGREEMENT
THIS INTERNET RESELLER AGREEMENT (the “Agreement”) is made effective the date of its execution (the “Effective Date”), by and between Swampfox Optics Inc. DBA Swampfox Tactical Optics, a Delaware Corporation with principal offices at 3773 S. Jason St., Unit 3, Englewood, CO 80110 (“Swampfox”), and the authorized Internet reseller that has executed this Agreement (“Reseller”). Swampfox 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 Swampfox products and related accessories approved by Swampfox and made available to Reseller by Swampfox or a Swampfox Authorized Distributor.
Territory: The (“Territory”) shall mean the United States of America.
· 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 Swampfox, and resells such Swampfox products to resellers within the Territory.
· Licensed IP: The (“Licensed IP”) shall mean the trademarks, tradenames, product images, and/or marketing banners provided by Swampfox in writing in the approved image or form provided by Swampfox.
· 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. Internet Appointment. Swampfox 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 URL locations listed in the then-current Internet Reseller Profile attached hereto as Schedule A and approved by Swampfox.
2. Third-Party Internet Marketplaces. Reseller, ONLY if listed and approved by Swampfox in Schedule A, shall be allowed to sell or advertise Products on certain approved third-party Internet marketplaces under certain approved names.
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 Swampfox. Reseller shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Swampfox that Reseller purchased or obtained from a source other than directly from Swampfox or a Swampfox 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. Swampfox hereby expressly prohibits the Reseller from soliciting or consummating sales outside the Territory.
5. Commingled Inventory. Unless approved in writing by Swampfox, 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 Swampfox or a Swampfox Authorized Distributor.
6. Bundling. Reseller shall not offer for sale any product bundles containing any Product(s) without prior written permission from Swampfox.
7. Sales by Auction. Sales by the Reseller of Product(s) by way of online auction are prohibited without prior written permission from Swampfox.
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 Swampfox under this Agreement and at law, Reseller agrees to pay Swampfox, as liquidated damages and not as a penalty, the greater of the following amounts: (i) the costs and fees associated with Swampfox’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 B 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 Swampfox;
e. preserve the reputation and goodwill of Swampfox 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 Swampfox;
g. only use the current Licensed IP in association with the Products, unless Reseller obtains written permission from Swampfox;
h. not bid on any current or future trademarks used or owned by Swampfox as keywords on Google Ads or similar paid search engine, including Internet marketplace paid search programs, without prior written permission from Swampfox;
i. only use those Product images, descriptions, logos, marketing banners, and video clips provided or authorized in writing by Swampfox 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 Swampfox must be approved, in writing, by Swampfox prior to use;
j. conduct and maintain at all times its operation in compliance with all applicable federal and state laws and regulations, FTC 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 Swampfox 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 Swampfox 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 Swampfox and as such terms may change from time to time by Swampfox in its sole discretion.
11. Breach. Any violation of the terms of this Agreement shall be deemed a breach of the Agreement, entitling Swampfox 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 Swampfox immediately upon notice to Reseller in the event of a breach of any of the terms of this Agreement; or
b. by Swampfox 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 Internet reseller of Swampfox Products. Reseller shall immediately cease to purchase, advertise, and/or sell Swampfox products; cease to represent itself as an authorized reseller of Swampfox products; cease all use of Swampfox’s intellectual property; and return to Swampfox all advertising, promotional, display, and other materials that have been furnished to Reseller by Swampfox. Reseller agrees to immediately remove any and all Internet listings of Swampfox products. The acceptance by Swampfox 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, Swampfox 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 Swampfox with a list of its inventory of the Products. Swampfox, 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 Swampfox 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 Swampfox may have given Reseller on account of such Products. If such option to repurchase is exercised by Swampfox Reseller agrees, at Reseller’s expense, to deliver Reseller’s inventory of the Products to Swampfox in their original packages within thirty (30) days of receipt of Swampfox’s notice of exercise. If such option to repurchase is not exercised by Swampfox, Reseller is prohibited from reselling its remaining inventory of the Products on the Internet.
14. MAP Policy. Reseller acknowledges that Reseller has been informed of Swampfox’s Unilateral Minimum Advertised Price (“MAP”) Policy as it applies to the advertisement for sale of Swampfox Products from resellers to End-Users in the United States. There is no agreement, express or implied, between Swampfox and Reseller with respect to the advertised or resale pricing of Products. If any director, officer, employee, representative, or other agent of Swampfox tries to coerce Reseller to agree to the price at which Reseller advertises or resells Swampfox Products, such action shall be considered void, unauthorized, and without effect and Reseller shall promptly notify Swampfox’s MAP Policy Committee at dealers@swampfoxoptics.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. Swampfox 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 Swampfox, Swampfox’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 SWAMPFOX 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 SWAMPFOX 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 SWAMPFOX 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 Colorado and shall be governed by and construed in accordance with the laws of the State of Colorado 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 Denver County or the United States District Court for the District of Colorado, 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 Colorado 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.