Authorized Seller Agreement
This attorney drafted Authorized Seller Agreement is an
agreement that can be used to define the terms and conditions of
the relationship between a manufacturer of goods and their
authorized sellers.
ALL INFORMATION AND FORMS ARE PROVIDED “AS IS” WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING AS TO THEIR
LEGAL EFFECT AND COMPLETENESS. They are for guidance and should be
modified to meet your needs and the laws of your state. Use at your own risk.
Docstoc and anyone who participated in providing or modifying any form is not
creating or entering into an Attorney-Client relationship. Docstoc does not provide
legal advice. The information and forms are not a substitute for the advice of your
own attorney.
AUTHORIZED SELLER AGREEMENT
This Authorized Seller Agreement (hereinafter “the Agreement” is entered into and
effective as of ___________ [Instructions: Insert date] by and between the following Parties:
_____________ [Instructions: Insert Name of Company] (hereinafter “Company”) with a
principal business address of _________________________ [Instructions: Insert address]; and
_____________ [Instructions: Insert Name of Retailer] (hereinafter “Retailer”) with a
principal business address of _______________________ _______ ____ [Instructions: Insert
address], collectively referred to as the “Parties”.
I. GRANT OF RIGHT
1.1 Company grants to Retailer, the non-exclusive right to purchase and resell at retail the
Company's range of products (collectively referred to as “Products”) at Retailer's
stores (“Retail Centers”) all operating under the same name [Instructions: Identify
the different names of the authorized retail location if they do not all operate
under the same name]. For the purpose of the Agreement, the Products to be
purchased and resold by Retailer are set forth in the Appendix 1 of this Agreement.
1.2 Nothing in this Agreement grants Retailer an exclusive territory to market and resell the
Products.
II. TERM
2.1 Initial Term. This Agreement shall begin on date of execution and shall remain in full
force and effect for ____ (___) [Instructions: Insert number of years in words and
numbers] years (the “Term”).
2.2 Renewal Term. This Agreement may be renewed for a period that may not exceed
______ (___) [Instructions: Insert number of years in words and numbers] years
or the Term, whichever period is longer (the “Renewal Term”). Renewal Terms shall
be conditional upon satisfactory performance evaluations by the Company. Any
renewal shall be in writing and executed by both Parties and shall be subject to the
same terms and conditions set forth in this Agreement.
III. TERMINATION
3.1 This Agreement may be terminated by the Company or the Retailer prior to expiration
with or [Note: See Note below] without cause by providing no less than forty-five
(45) [Instructions: The amount of notice is at the discretion of the Parties, the
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drafter may fill in a different amount of notice if desired] days prior written notice
to the other party.
[OR]
3.1 This Agreement may only [Note: See Note below] be terminated prior to the
expiration with cause which shall be defined as:
A. A misrepresentation by Company of a product;
B. A failure by Retailer to make timely payments to Company; or
C. Retailer‟s violation of its obligations hereunder.
[Note: The above sections may also be used jointly to allow for the termination of the
Agreement with and without cause. If you want to use both together, simply combine the
two separate sub-sections under sub-section 3.1 and delete the words “only” and “with or”
as highlighted above.]
3.2 In the event Company seeks to terminate this Agreement for cause, it will furnish written
notice of termination to Retailer, and Retailer shall at prompt notice return all unsold
Products immediately upon termination. In the event of termination or expiration of
this Agreement, Retailer will be required to immediately return to Company any
software, equipment, unsold Product and merchandising material and will process any
credits owed to Retailer, as appropriate, for the returned, unsold Products. If
shipment is not received within fifteen (15) days of notification, Retailer agrees that
Company will be authorized to deem all unused Products to be sold to Retailer and
invoice Retailer for all those unused Products.
[Note: Section 3.2 is optional and may not be applicable in all situations.]
IV. DESCRIPTION OF GOODS; SALE AND DELIVERY
4.1 Company shall sell, transfer, and deliver to Retailer the Products at the per unit cost set
forth in paragraph 4.7 herein, and Retailer shall sell the product at the „Suggested
Retail Price‟ as shown in Appendix 2 unless otherwise agreed in writing by the
Parties.
4.2 Company shall have the right, at any time, with ____ (___) [Instructions: Insert the
number of days’ notice that will be required. The amount of notice is at the
discretion of the Parties, the drafter may fill in a different amount of notice if
desired] days notice, to decrease or increase the Suggested Retail Price of Products.
In the event the Company decreases the Suggested Retail Price the Company will
give a proportionate credit to the Retailer on the price already paid by Retailer for a
Retailer's unused stock of that type of Product at the time such decrease is made and
subsequently implemented by Retailer.
4.3 Should the Company introduce a new model of Products that has a different Suggested
Retail Price, Company shall notify Retailer of the Suggested Retail Price within ____
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(___) [Instructions: Insert the number of days’ notice that will be required. The
amount of notice is at the discretion of the Parties, the drafter may fill in a
different amount of notice if desired] days of the new model‟s introduction.
Subsequently, the Retailer's purchase price will be negotiated by the Company with
the Retailer.
4.4 Retailer shall have the right to continue selling the old model until its inventory is
depleted or to receive a full refund from the Company for any inventory of the old
model that Retailer has in stock at the time of introduction of new model.
4.5 Company will provide the Retailer the Products packaged for retail in a sealed package
[Instruction: Describe type of package if needed]. If Product is to be sold with
additional items or equipment then such a package will include the following:
___________________________.
4.5.1 Company may, from time to time: (a) add, change, or modify the grade, Products
brand name, delivery package, or other distinctive designation of any Product; (b)
change or modify the formulations and specifications of any Product; and (c) upon 30
days‟ prior notice, discontinue at any time the sale of any Product in which event the
Parties will be relieved of any further obligation with respect to that Product.
4.6 Retailer's price is ______(FOB or CNF)(the “Purchase Price”) to Retailer's distribution
center. [Instruction: If there are multiple price points then you may choose to use
an Appendix.]
4.7 Title to and risk of loss of Products shall pass to Retailer upon delivery and Retailer's
acceptance at the Retailer's distribution center. Thereafter, such risk of loss shall be
on the Retailer, including any Products thereafter returned to the Company until their
receipt by Company.
V. PAYMENTS
5.1 Retailer shall pay Company the full amount of the Purchase Price of the Products within
thirty (30) days of Retailer's receipt of invoice for Products received by Retailer. If
Retailer is delinquent in payment of any obligation to the Company, then Company,
in its discretion and in addition to any other right and remedies it may have under this
Agreement or law, may suspend all pending orders and shipments to the Retailer until
such delinquency is cured.
VI. INTELLECTUAL PROPERTY OF COMPANY
6.1.1 Company hereby grants to Retailer the right to use Company‟s trademarks,
tradenames, logos and such identification (“Marks”) only in connection with the
resale of the Products provided Retailer complies with the terms of this Agreement.
Retailer acknowledges that the Marks are a valuable and important property right and
are essential to the goodwill and reputation of the Products. Retailer further
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acknowledges Company‟s interest in the Marks and Retailer shall not claim any right
to or title or interest thereto.
6.2 Retailer warrants that Retailer shall always obtain Company‟s prior written
authorization to use and display, or permit the use and display of, the Marks at any
retail outlet.
6.3 Retailer shall follow all rules, regulations, standards, and guidelines Company
establishes from time to time relating to the use and display of the Marks in
connection with the resale of the Products.
6.4 The term “Confidential Information” shall mean any and all information or
proprietary materials (in every form and media) not generally known in the relevant
trade or industry and which has been or is hereafter disclosed or made available by
either party (the “disclosing party”) to the other (the “receiving party”) in connection
with the efforts contemplated hereunder, including (i) all trade secrets, (ii) existing or
contemplated products, services, designs, technology, processes, technical data,
engineering, techniques, methodologies and concepts and any information related
thereto, (iii) information relating to business plans, sales or marketing methods or
merchandising techniques, plans or information, and actual or potential customer lists
or requirements. (iv) financial information or materials, (v) cost data, (vi) user lists
and information, (vii) actual or potential vendor lists and information, (viii)
procurement requirements, (ix) purchasing information, (x) manufacturing or
development information, (xi) pricing policies, (xii) information about employees,
Retailers, independent contractors, interns, officers, directors, shareholders, investors,
lenders, accountants, attorneys, and any other agents of either party, (xiii) information
about actual, under development, or what might reasonably be anticipated to be or
become business and contractual relationships, (xiv) actual or potential lender,
investor or “partner” lists and information, and (xv) other proprietary business
information of either Party. “Information” as it relates to people or entities includes
all contact information, including name, title, position, address, phone numbers, and
email addresses. Further, “Confidential Information” includes any and all technical
and non-technical information or material in which either party has rights,
opportunities, or obligations, whether or not owned or developed by such party (or
people or entities such party may have disclosed to or received from pursuant to non-
disclosure agreements).
“Trade Secrets” means information, including a formula, pattern, compilation,
program device, method, technique, or process, that: (i) derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy
Each party acknowledges that disclosure or use of a trade secret without express or
implied consent violates the Uniform Trade Secrets Act. Each party acknowledges
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that the other party is not seeking to obtain trade secrets or confidential information of
others that such party might possess and agrees not to improperly disclose trade
secrets or confidential information of others to the other party.
Company and Retailer shall each (i) hold the Confidential Information of the other in
trust and confidence and avoid the disclosure or release thereof to any other person or
entity by using the same degree of care as it uses to avoid unauthorized use,
disclosure, or dissemination of its own Confidential Information of a similar nature,
but not less than reasonable care, and (ii) not use the Confidential Information of the
other party for any purpose whatsoever except as expressly contemplated under this
Agreement or any SOW. Each party shall disclose the Confidential Information of
the other only to those of its employees, independent contractors, permitted
subcontractors (including their employees and independent contractors) having a need
to know such Confidential Information, provided that such persons and entities have
signed a non-disclosure agreement containing provisions no less restrictive that those
contained in this Article 6.
The obligations of either party under this Article 6.4 will not apply to information or
materials that the receiving party can demonstrate (i) was in its possession at the time
of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure
is generally available to the public or after disclosure becomes generally available to
the public through no breach of agreement or other wrongful act by the receiving
party, (iii) has been received from a third party without restriction on disclosure and
without breach of agreement or other wrongful act by the receiving party, (iv) is
independently developed by the receiving party without reference to the Confidential
Information of the other party, or (v) is required to be disclosed by law or order of a
court of competent jurisdiction or regulatory authority, provided that the receiving
party shall furnish prompt written notice of such required disclosure and reasonably
cooperate with the disclosing party, at the disclosing party‟s cost and expense, in any
effort made by the disclosing party to seek a protective order or other appropriate
protection of its Confidential Information and any disclosure under this clause (v) is
limited to the extent of the legal requirement.
VII. RETAILER’S RESPONSIBILITIES AND RESTRICTIONS
7.1 Retailer shall comply with the following obligations with respect to quality of
Products, requirements relating to the marketing, storage, and resale of the Products
and restrictions on Retailer.
7.2 Retailer shall not resell, nor may any operator of Retail Centers resell, products at
Retail Centers other than the Products purchased by Retailer from Company to be
resold under the Marks pursuant to the terms of this Agreement.
7.3 The quality of the Products must be strictly maintained and not adulterated,
commingled, or blended with any other products or substances in any manner.
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7.4 All Products must be clearly identified, correctly labeled, and resold under their proper
Marks.
7.5 All signs and other advertising devices or materials furnished by Company to Retailer
will remain Company's property, must be used solely in connection with the resale of
the Products, and must be returned to Company immediately upon demand at
Retailer's expense.
7.6 Retailer shall obtain Company's prior written approval before using, or permitting the use
of, any promotional materials or advertising that bear any of the Marks.
7.7 The Products must be diligently and efficiently merchandised and promoted at Retail
Centers.
7.8 Retailer must conduct operations at the Retail Centers in a professional and business-like
manner and the public must be provided with prompt, courteous, and efficient
service.
7.9 Retailer shall promptly and courteously respond to any customer complaints (including
written responses when appropriate) and take immediate action to satisfactorily
resolve each customer complaint.
7.10 Retail Centers must be kept in a clean, sanitary, and safe condition and all property
and equipment kept in good operating condition and repair. The driveways,
sidewalks, and other landscaped areas must be kept in a neat and orderly appearance
free from weeds, debris, snow, ice, and rubbish. [Instruction: This paragraph is
optional depending on the percentage of Company’s Products Retailer carries
compared to other company’s products]
7.11 Retail Centers may not be used for any unlawful, offensive, hazardous, unsightly, or
other objectionable purpose, including, but not limited to, the sale or display of
materials with in obscene, libelous, sexually explicit materials.
7.12 Retail Centers must be kept clear of vehicles, other mobile equipment, and
obstructions that restrict traffic flow, endanger customer safety, or detract from
appearance. Retail Centers may not be used to sell, lease, or store motor vehicles,
trailers, boats, or other mobile equipment, without Company‟s prior written consent.
[Instruction: This paragraph is optional depending on the percentage of
Company’s Products Retailer carries compared to other company’s products, and
the type of Products being sold]
7.13 Retail Centers must be operated in a secure manner so that criminal activity is
adequately deterred from occurring there and so that all persons at Retail Centers are
adequately protected from injury, harm, or loss. Retailer has complete control over
and the sole responsibility for security at Retail Centers.
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7.14 Retailer shall use its reasonable efforts to develop and actively promote the sales of
Products. Company reserves the right to market and sell, and authorize others to
market and sell, the Products in any manner Company chooses, including, without
limitation, through its own Retail Centers or through designated wholesalers or other
retailers.
7.15 Retailer shall keep all Retail Centers supplied on a timely basis with sufficient
volumes and quantities of Products to meet the needs and demands of all Retail
Centers and their customers.
7.16 Retailer shall not sell, deliver, or otherwise supply the Products to Retail Outlet
Company has not authorized, in writing, Retailer to supply. Further, Retailer shall not
supply the Products to any company or retailer who Retailer knows or has reason to
know will resell the Products under trademarks or brand names other than those of
Company.
VIII. RETAILER'S RETURN OF PRODUCTS
8.1 Company warrants that Retailer will receive a full credit of the original purchase price for
Products that are returned by customers to Retailer in both opened and unopened
packages as long as there is no visible evidence of damage to the Product.
8.2 If Retailer desires in writing to discontinue sale of the Products (a discontinuation of less
than the entire line of Products), Retailer will sell back and deliver to Company, free
and clear of all liens and encumbrances, all quantities of unsold Products for
Company to repurchase at Retailer's original purchase price from Company. Retailer
will bear all costs and expenses in returning the Products to the Company.
IX. PRODUCT PLACEMENT (Optional)
9.1 Retailer will make every effort to place Products at its ____________[Mention Location]
for a minimum of twelve (12) months beginning with initial product roll out. In the
event placement at checkout counters is not possible at select stores, Retailer will
place Products immediately behind its checkout counters in a highly visible location.
X. TRAINING (Optional)
10.1 Retailer shall attend and shall cause all the managers or operators of Retail Centers to
attend a minimum of _____hours/days of Company approved training courses or
courses deemed appropriate by Company for each year of the term of this Agreement,
as and if required by Company. The training will be conducted at a training facility
designated by Company.
10.2 Upon Company‟s request, Retailer shall provide proof of training for Retailer,
Retailer‟s managers, and the operators of Retail Centers. Retailer shall have available
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and utilize training equipment, materials, and programs made available by Company
from time to time for training purposes.
10.3 Additional training requirements, if any:
______________________________________
XI. INSPECTION AND AUDIT
11.1 Retailer shall keep and maintain books and records which accurately reflect the net
sales made by Retailer under this Agreement for a minimum of three (3) years
following the end of the calendar year in which the sales occurred (it being
understood and agreed that the obligation to maintain such books and records would
be satisfied by the maintenance of computer systems data). Retailer grants
Company, its agents, and representatives the right to enter the Retailer‟s premises and
Retail Centers at all reasonable times with reasonable prior notice to inspect the
facilities, procedures, and materials being used in connection with the purchase and
sale of the Products, to obtain samples of and conduct tests on the Products, to inspect
the books and records pertaining to the purchase and sale of the Products, and to
audit, observe, and otherwise verify Retailer‟s compliance with this Agreement. If
such an audit reveals a discrepancy of more than __%, then Retailer will reimburse
Company for the reasonable and documented out-of-pocket costs of the audit. In
addition, Retailer shall provide to Company, from each Department on a monthly
basis, a report of sales by each day of the month.
XII. TAXES
12.1 Retailer shall pay all federal, state, and local taxes, excises, duties, license fees,
inspection fees, and other assessments and charges of any kind and nature, now or
hereafter levied, (“Taxes”) assessed by any governmental authority, relating to the
importation (if applicable), manufacture, sale, purchase, transportation, storage,
resale, or use of the Products insofar as the same is not expressly included in the price
for the Products. If Retailer pays directly any Tax normally remitted by Company,
Company may require proof of payment of such charges from Retailer and may
require Retailer to provide a bond or other form of security necessary to protect
Company against loss arising from nonpayment. Retailer shall furnish Company with
satisfactory tax exemption certificates where an exemption is claimed.
XIII. WARRANTY AND DISCLAIMER
13.1 COMPANY WARRANTS THAT ALL PRODUCTS SOLD TO RETAILER WILL
MEET THE THEN-CURRENT SPECIFICATIONS OF COMPANY. COMPANY
MAKES NO OTHER WARRANTIES OF ANY KIND AS TO THE PRODUCTS
SOLD TO RETAILER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
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XIV. CLAIMS
14.1 Company will not be liable to Retailer for any defect in quality or shortage in quantity
of the Products unless: (1) Retailer gives Company notice within __ business days
after delivery for shortages and within __ business days after delivery for quality
defects (or _ business days after discovery if the defect is latent) and (2) Retailer
provides Company with a reasonable opportunity to inspect, take samples, and test
the Products that are the subject of the claim.
14.2 Except as set forth in Article 15.1 or claims relating to indebtedness, or as otherwise
specified in this Agreement, the Parties will not be liable to each other for any other
claim arising out of this Agreement unless the claimant provides the other party with
written notice of the claim (setting forth fully the facts on which the claim is based)
within 180 days after the date on which the claim arose.
XV. COMPLIANCE WITH LAWS
15.1 Retailer shall, at its expense, obtain all permits and licenses which may be
required under any applicable Federal, state or local law, ordinance, rule or regulation
by virtue of any act performed in connection with the operation of each Retail
Centers. SCRC shall comply fully with all applicable Federal, state and local laws,
ordinances, rules and regulations, including all rules and regulations of the Federal
Trade Commission.
15.2 [Mention any specific laws for Retailer to comply with]
XVI. EXCUSES FOR NON-PERFORMANCE
Both Parties will be excused from their obligations under this Agreement (except for
financial obligations) to the extent that performance is delayed or prevented by the following
matters: circumstances reasonably beyond the Parties‟ control including, but not limited to,
flood, ice storm, snowstorm, or earthquake; fire or explosion; delay or loss of transportation or
delivery equipment; mechanical breakdown; strikes or other labor trouble, plant shutdown, riots,
or other civil disturbances; or voluntary or involuntary compliance with any Law or request of
any governmental authority.
XVII. CONFIDENTIALITY
Each of the Parties hereto agrees to maintain the confidentiality of any proprietary
or confidential information of the other party hereto that may be disclosed to the respective
Parties hereto in connection with the transactions contemplated hereby. Any information of
the respective Parties hereto shall be deemed to be proprietary or confidential, unless
expressly provided to the contrary. Upon the termination of the relationship between the Parties
for any reason, each party agrees to promptly return to the other any confidential information of
such other party in such first party‟s possession. The provisions of this Clause 18 shall survive
the termination, for any reason, of this Agreement.
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XVIII. INDEMNITY
18.1 To the extent permitted by law, retailer shall indemnify and defend company, its
members, subsidiaries, affiliates and joint venture partners, and their respective
directors, officers, employees, and agents (“Indemnified Parties”) against all claims,
demands, causes of action, suits, damages, judgments, liens, penalties, and expenses,
including, without limitation, attorneys‟ fees and litigation costs, whether incurred for
an indemnified party‟s primary defense or for enforcement of its indemnification
rights (collectively, “Claim”), including, without limitation, any claim for harm,
injury, or death to any person, or damage to property or to the environment arising
out of or in connection with any of the following matters:
A. Retailer‟s performance or nonperformance under this agreement, including,
without limitation, retailer‟s possession, sale, transportation, storage,
handling, and use of the products;
B. Any action or omission of retailer or retailer‟s employees, agents, contractors,
assigns, or third Parties; and
C. Any event or occurrence at or involving the operation of any retailer‟s outlet.
18.2 Retailer‟s obligation to indemnify and defend extends to any claim caused by the
concurrent or contributory negligence or fault of an indemnified party but not to any
claim shown by final non-appealable judgment to have been caused by the
indemnified party‟s sole negligence or any defect in the petroleum products not
caused or contributed to by any negligence or fault of retailer.
18.3 Notwithstanding retailer‟s obligations in Article 19 A, Retailer shall indemnify and
defend the Indemnified Parties against all claims arising solely at plants owned or
operated by company but only to the extent of the negligence of Retailer, Retailer‟s
employees, agents, or contractors.
18.4 The right of either party (“Indemnified Party”) to indemnification and/or a defense
(collectively, “Indemnity”) hereunder by the other Party (“Indemnifying Party”) shall
be conditioned on the following: [Tip: Docstoc has several resources available
regarding detailed Indemnification Agreements including plug-in provisions that can that
can be used in conjunction with this Agreement].
A. The Indemnified Party must give the Indemnifying Party prompt written notice of
the Third-Party Claim, for which it is seeking Indemnity, although the
Indemnified Party‟s failure to provide such prompt notice will not relieve the
Indemnifying Party of any obligation or liability under this Section except to
the extent the Indemnifying Party has been materially prejudiced by such
failure;
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B. The Indemnifying Party shall have sole control of the defense and any settlement
or other resolution of such Third-Party Claim with legal counsel of the
Indemnifying Party‟s choice, so long as the representation is zealous, legal
counsel is reputable, there is no conflict of interest in representing the
Indemnified Party, and the Indemnified Party is recognized as the client of
legal counsel;
C. The Indemnified Party shall at all times fully cooperate with, and at the
Indemnifying Party‟s expense, provide such assistance as reasonably
requested by the Indemnifying Party, in connection with any investigation or
defense of such Third-Party Claim; and
D. The Indemnified Party shall not enter into any settlement, compromise or other
resolution of such Third-Party Claim, without the Indemnifying Party‟s prior
written consent, which shall not be unreasonably withheld or delayed.
18.5 Notwithstanding anything to the contrary herein, no compromise or settlement of any
such Third-Party Claim may be committed to by the Indemnifying Party without the
Indemnified Party‟s prior written consent, unless:
E. It includes a full discharge and release of liability for the Indemnified Party; and
F. It involves no admission or commitment by or on behalf of the Indemnified Party
other than the payment of money to be fully indemnified hereunder by the
Indemnifying Party.
18.6 As used herein, “affiliate” means any and all parties, who directly, or indirectly
through one (1) or more intermediaries, control, are controlled by, or are in common
control with, either party hereto.
XIX. EMPLOYEES
Retailer‟s resources are not and shall not be deemed to be employees of Company.
Retailer shall be solely responsible for the payment of all compensation to its resources,
including provisions for associated taxes, worker‟s compensation and any similar taxes
associated with resources of Retailer‟s personnel. Retailer‟s resources shall not be entitled to
any benefits paid or made available by Company to its employees.
XX. GENERAL
20.1 Governing Law and Venue.
This Agreement shall be governed by and construed in all respects in accordance with laws of
the ______ of _______________, as they apply to agreements entered into and to be performed
entirely within ___________ between ____________ residents, without regard to conflict of law
provisions and shall be treated, in all respects, as a _____________ contract.
The venue for any action or claim at law or in equity hereunder shall be exclusively in and
with a court having jurisdiction over __________ County, __________, if disputes are to be resolved
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in Court, if at all, as set out elsewhere herein, or if arbitration or mediation is to occur, if at all, as set
out elsewhere herein, that shall be in the same location, and the Parties irrevocably consent to the
exclusive personal jurisdiction of such federal or state courts or arbitrators. (If this Agreement is
silent regarding resolution of disputes other than by a court of law or equity of competent jurisdiction
then the first resort will be to a court of competent jurisdiction.) The Parties further agree and hereby
consent to, and waive all defences of lack of personal jurisdiction and forum non conveniens with
respect to, venue and jurisdiction in _________ County, ____________. Notwithstanding anything
to the contrary any party may seek preliminary or permanent injunctive relief or restraining order
arising out of or related to this Agreement from any court of competent jurisdiction, which rights
and remedies shall be cumulative and in addition to any other rights or remedies at law or in equity to
which any Party may be entitled.
20.2 Dispute Resolution.
[TIP: This section deals with how disputes are to be resolved. How would the Parties like to resolve
disputes, should any arise? While everyone usually hopes to avoid disputes and breaches of contract
those can arise for various and many reasons, including because the agreement is ambiguous or
uncertain in some respect, or a party is negligent or willfully acts contrary to one or more terms or
provisions of an agreement. There are various important choices available to the Parties in resolving
disputes, conflicts and breaches or violations of this Agreement that the Parties are not able to resolve
consensually by themselves or through their respective representatives or attorneys. These include
mediation, non-binding arbitration, binding arbitration, and judicial litigation. While this Agreement
anticipates that the parties will engage in judicial litigation, and contains a very simple provision about
that, you may wish to consider the other options as well. Docstoc has several resources available
regarding dispute resolution including plug-in provisions for mediation, non-binding arbitration,
binding arbitration, and judicial litigation available here]
The Parties shall endeavour to resolve any differences of opinion which may arise between
them with respect to the provisions of this Agreement by negotiation between themselves personally
or with the assistance of their attorneys and unless in the opinion of any party, acting reasonably, the
matter in dispute is of such a significant nature to warrant it being addressed otherwise, no party shall
commence any public proceedings until the negotiations have failed to produce a resolution. In
furtherance of the provisions of this paragraph, all Parties hereby agree to make themselves available
on short notice and to negotiate promptly and in good faith, any matter any party may wish to
negotiate. If there is no resolution then the Parties agree that any dispute, claim, or action hereunder
shall be resolved exclusively in and with a court of law or equity having jurisdiction over the Parties
and subject matter.
20.3 Attorneys‟ Fees.
In the event of litigation or arbitration relating to the subject matter of this Agreement,
the prevailing party shall have the right to collect from the other party its reasonable costs and
necessary disbursements and attorneys' fees incurred in enforcing this Agreement.
20.4 Notices.
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Any notice required, permitted to be given, or otherwise given hereunder may be effectively
given by letter delivered either by personal delivery, registered mail certified return receipt requested,
postage prepaid, or delivered by overnight delivery service, or by facsimile machine upon receipt from
the sender of a confirmation of receipt, or by other electronic means so long as the recipient has
acknowledged receipt (for purposes of this section an automatically generated receipt confirmation
does *not* qualify as acknowledgement of receipt), addressed to the recipient as follows:
In the case of Company:
Company
Attn: _____________
_____________________________
_____________________________
Tel: __________________
Fax: __________________
Email: _______________________
In the case of Retailer:
Retailer
Attn: _____________
_____________________________
_____________________________
Tel: __________________
Fax: __________________
Email: _______________________
20.5 Construction.
If there is any controversy regarding this agreement or the terms of this Agreement, this
Agreement, will be deemed to have been drafted by all parties herein and will not be strictly
construed as against any party. The parties have been made aware of their right and opportunity
to consult with independent legal counsel and have either done so, or knowingly waive the right
to do so. Further, the parties acknowledge that they have engaged in negotiations to reach this
Agreement.
20.6 Headings.
The headings for sections herein are for convenience only and shall not affect the
meaning of the provisions of this Agreement. Such headings shall not be deemed to govern, limit,
modify or in any other manner affect the scope, meaning or intent of the provisions of this
Agreement or any part thereof, nor shall they otherwise be given any legal effect.
20.7 Amendment/Modification.
No modification, revision, supplementation, abrogation, termination, extension, waiver, or
amendment to or of this Agreement, or any other agreement between the Parties, (including any
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attachments or exhibits) or any of its provisions, may be made, and any attempts shall not be binding,
unless agreed to by duly authorized representatives of the Parties, in writing, executed, as set forth
below in this section. There shall be no oral agreements regarding the subject matter of this
Agreement, or any other purported agreement between the Parties . Electronic writings, including e-
mail messages, text messages, tweets, instant messages, etc., their contents, and any attachments or
links, and any prior or subsequent communications including oral discussions or negotiations
concerning some or all of this Agreement , or any other purported agreement between the Parties, are
not intended to represent and do not reflect an offer or acceptance to enter into (or amend, modify,
revise, terminate, abrogate, extend, waive a breach or damages of, etc.) a binding contract, transaction
or agreement, and are not intended to and do not bind any Party to this Agreement, except as set forth
below in this section. Absent the written electronic express statement to the contrary as set out below,
it is the express intention of the Parties, and the Parties agree, with regard to or concerning this
Agreement, or any other actual or purported agreement between the Parties, that the Parties may
determine that they wish to attempt to negotiate and enter into written agreements that are binding,
that amend, modify, supplement, revise, terminate, abrogate, extend, waive a breach or damages, of
this Agreement, or any other purported agreement between the Parties, however, the Parties intend
and will continue to intend that there shall be no contract formations, waivers, revisions,
modifications, supplementations, abrogations, extensions, amendments, or modifications, without one
or more formal written documents executed with holographic signatures by hand with ink pen on
paper (aka “wet signatures” or “pen on paper signatures”), or by means of formal secure digital
signature contract execution (such as by Docusign, or Adobe eSignature) (“secure digital signatures”),
signed by duly authorized representative of each of the Parties. Any (alleged) communication to the
contrary in the past, now or future, is not binding on any Party to this Agreement. The written
express statement mentioned above ("electronic express statement") shall be the following, or that
which expresses the same intent as the following: “I expressly intend that this shall constitute an
electronic signature to a writing thereby [forming, modifying, amending, abrogating, granting an
extension in relations to, or waiving a breach to] a binding [contract or agreement].” For purposes of
any agreement, a formal written document on paper with wet signatures (pen on paper signatures) or
secure digital signatures and otherwise consistent with the requirements herein, which is transmitted
by facsimile, the internet, or any cell/wireless/mobile telephone system, or the like, as an image or .pdf
document is valid when signed by pen on paper, or secure digital signatures, by all parties to be
charged. The parties expressly state and intend that emails / texts / tweets / instant messages, etc., sent
or received - even when there are multiples or combinations of these - do not include all of the
essential or material terms required in order for there to be a legally binding agreement or contract
between the Parties, agree that there is no meeting of the minds, and, regardless, are ineffective for
purposes contract formation, modification, amendment, waiver, revision, supplementation, abrogation,
extension, etc., without the electronic express statement mentioned above. No addition to or
modification or consensual cancellation of this Agreement, notice or statement shall be binding unless
made in one or more formal written documents consistent with the pen on paper signatures, secure
digital signatures, or "electronic express statement" requirements herein. Any purported
communication to the contrary is not binding.
No waiver of any breach of any provision of this agreement, notice or statement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions
hereof, and no waiver shall be effective unless made in writing and wet signed by pen on paper, secure
digital signatures, or electronic express statement as set out herein.
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20.8 Waiver.
A waiver by any Party of any provision of this agreement in any instance shall not be
deemed to waive it for the future. A Party‟s failure to insist on strict compliance with any of the
terms of this agreement on one or more occasions is not a waiver of any rights or obligations
under this Agreement.
20.9 Severability.
Each of the provisions of this Agreement (and each part of each such provision) is
severable from every other provision hereof (and every other part thereof). In the event that any
provision (or part thereof) contained in this Agreement or the application thereof to any
circumstance shall be invalid, illegal or unenforceable, in whole or in part, and to any extent: (i)
the validity, legality or enforceability of such provision (or such part thereof) in any other
jurisdiction and of the remaining provisions contained in this Agreement (or the remaining parts
of such provision, as the case may be) shall not in any way be affected or impaired thereby; (ii)
the application of such provision (or such part thereof) to circumstances other than those as to
which it is held invalid, illegal or unenforceable shall not in any way be affected or impaired
thereby; (iii) if possible, such provision (or such part thereof) shall be construed or re-written as
closely as possible to conform to the intent of the parties, in which instance parole or extrinsic
evidence may be considered to do so; (iv) if not susceptible to such construction, such provision
(or such part thereof) shall be severed from this Agreement and ineffective to the extent of such
invalidity, illegality or unenforceability in such jurisdiction and in such circumstances; and (v)
the remaining provisions of this Agreement (or the remaining parts of such provision, as the case
may be) shall nevertheless remain in full force and effect.
20.10 Survival of Obligations.
Those sections of this Agreement, that should logically survive termination or expiration
of this Agreement, shall survive termination or expiration of this Agreement.
20.11 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior
agreements, representations, warranties, statements, promises, information, arrangements and
understandings, whether oral or written, express or implied, with respect to the subject matter hereof.
The Parties shall not be bound or charged with any oral or written agreements, representations,
warranties, statements, promises, information, arrangements or understandings not specifically set
forth in this Agreement. This agreement has been carefully drafted and the Parties are convinced that
this document completely and clearly expresses their intentions. Further, the Parties place great value
on the quick and inexpensive resolution of any dispute that may arise between them concerning this
contract or the subject hereof. Therefore, the Parties agree that: (i) all disputes concerning this
agreement or the subject matter hereof shall be resolved as provided herein; (ii) this Agreement
constitutes the sole agreement among the Parties, and supersedes any and all prior or
contemporaneous oral or written agreements, promises, or understandings among them, pertaining to
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the matters contemplated in this Agreement; (iii) no express or implied representations, warranties, or
inducements have been made by any party to any other party except as set forth in this Agreement;
(iv) this Agreement may not be amended, added to, or altered except by a writing duly executed by
each of the Parties hereto, as set forth herein; and (v) no parole or extrinsic evidence whatsoever may
be introduce or considered in any judicial or arbitration proceeding involving this agreement, for any
purpose, including to interpret, explain, clarify, or add to this Agreement, except in any instance in
which a provision is found in whole or in part to be invalid, illegal or unenforceable and subject to
severability and the arbitrator or court undertakes to re-write or construe the severed provision as
closely as possible to conform to the intent of the Parties. For avoidance of doubt and for clarification,
the primary subject matter of this Agreement concerns and relates to Confidential Information. While
this Agreement also involves the Purpose – as it concerns or relates to Confidential Information - ,
should there be any pre-existing or subsequent written agreements between the Parties, regarding the
Purpose or otherwise, then obviously this Agreement cannot and does not constitute the entire
agreement regarding the Purpose. And while this Agreement may contain a provision concerning
formation, amendments, etc., with regard to other existing, future, or purported agreements, and that is
binding, if such a provision exists that is a subject matter of this Agreement.
20.12 Assignment.
A. Except for assignment to a collection agency or attorneys for the purpose of
collecting past-due monies owed hereunder, no Party (“Assignor”) may assign
or otherwise transfer its rights or obligations under this Agreement, to a third
party (“Assignee”), unless it is assigning all (but not less than all) of its rights
and obligations hereunder as a result and subject to the prior written consent
of the other Party (“Non-Assigning Party”), which consent shall not be
unreasonably withheld or delayed.
B. Notwithstanding Article 11.7 A, any Party may assign or otherwise transfer all
(but not less than all) of its rights and obligations under this Agreement, to (i)
an affiliate or (ii) to a successor-in-interest as assignee, in the event of a
merger or acquisition in which the successor acquires all or substantially all of
the Assignor‟s business assets, without the prior written consent of the Non-
Assigning Party, provided that:
i. Assignor gives the Non-Assigning Party at least fifteen (15) days‟
prior written notice of such impending assignment, which shall
identify the Assignee and intended effective date of the assignment
(“Notice of Assignment”); and
ii. The Non-Assigning Party has thirty (30) days after such Notice given,
within which to give written notice to the Assignor or Assignee of its
decision to terminate, and to terminate, the Agreement at will (except
for those provisions that survive termination) and without liability
therefor (“Notice of Termination”), effective on the date said Notice of
Termination is given.
B. Any attempt to assign this Agreement or any of the rights or obligations
hereunder in violation of this Section shall be null and void and, at the Non-
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Assigning Party‟s election, grounds for the immediate termination of this
Agreement for cause.
20.13 Successors and Assigns.
The Parties agree that this Agreement shall be binding upon each of its successors and
assigns and that this Agreement may not be assigned to any other third party, without the written
consent of Company, which shall not be unreasonably withheld.
20.14 Counterparts.
This Agreement, may be executed in several counterparts, each of which shall constitute
an original and all of which, when taken together, shall constitute one and the same agreement,
including the judicial proof of any of the terms hereof. A photocopy, fax copy, or electronic
image copy, which depicts the inclusion of one or more signatures by pen on paper, shall be
deemed an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of the day
and year first written above.
Company Retailer
Per: _____________________ Per: _______________________
Name: __________________ Name: _____________________
Title: ___________________ Title: ____________________
I have authority to bind Company. I have authority to bind Retailer.
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APPENDIX 1
Products
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APPENDIX 2
RETAIL PRICES
Products Quantity Retailer Cost Suggested Retail Price
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