Reseller Sales Agreement
SOLACE BRANDS, INC. DBA HATH whose business address is located at 2 Depot Plaza, Suite 201C, Bedford Hills, New York 10507 (“the Supplier”); and
whose business address is located at
The Supplier supplies products containing Cannabidiol (“CBD”) (“the Products”) and wishes to grant to the Reseller the right to sell the Products in accordance with the terms of this Agreement.
The Reseller is engaged in the practice of physical therapy, performance training, pain treatment, golf, spa or general retail as well as the sale of products that compliment these services and wishes to have the right to sell the Products in accordance with the terms of this Agreement.
1.1 In this Agreement unless the context otherwise requires the following words shall have the following meanings:
“the Agreement” – means this agreement and any written modification to this Agreement entered into in accordance with clause 13.4;
“the Conditions” – means the standard terms and conditions of sale as set out in this Agreement or such replacement standard terms and conditions as are in force at the date of an order for Products and which at that date appear on the Supplier’s website and/or which are available on request from the Supplier at its office address;
“the Commencement Date” – means the date this Agreement is executed by both parties;
“Electronic Delivery” means any electronic delivery method in connection with the Products including via the world wide web by electronic software delivery (“ESD”);
“Force Majeure” – means in relation to either party any circumstances beyond the reasonable control of that party (including without limitation, any strike, lock-out or other form of industrial action; change in Federal, State or Local Law);
“Intellectual Property” – means any patent copyright registered design trademark or other industrial or intellectual property right in respect of the Products and applications for any of the foregoing;
“Terms and Conditions” – means the Supplier’s terms and conditions for ordering as set out in Schedule 1 hereto and as amended from time to time by the Supplier;
“Supplier Price List” – means the then current pricing for any Product sold by the Supplier;
“the Products” – means the products set out in Standard Supplier Price List and those products which are from time to time added or updated by the Supplier;
“Reseller Price” – means the price for the Products as set out in the Standard Supplier Price List and as amended from time to time by the Supplier;
“Services” – means any services provided by the Supplier to the Reseller;
“the Term” – means the term of this Agreement as set out in clause 11 hereto;
“the Territory” – means any of the Reseller’s locations in the United States of America;
1.2 Any reference in this Agreement to “writing” or cognate expression includes a reference to telex, cable, facsimile transmission or comparable means of communication.
1.3 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.4 The schedules form part of this Agreement and shall be interpreted and construed as though they were set out in this Agreement.
1.5 The headings to clauses and schedules and paragraphs of the schedules are for convenience only and shall not affect the interpretation or construction of this Agreement.
2.1 The Supplier hereby grants to the Reseller and the Reseller accepts the appointment of the non-exclusive right to resell the Products in the Territory during the Term upon the terms and conditions set out in this Agreement.
2.2 Nothing in this Agreement shall be construed as explicitly or impliedly granting the Reseller the right to resell any new products or upgrades offered by the Supplier during the term of this Agreement other than the Products. Upon release, any such new products and/or upgrades may be added to this Agreement at the sole discretion of the Supplier by inclusion in the Online Supplier Price List or the Standard Supplier Price List then in effect.
3.1.1 Product pricing, description, availability and related information provided by the Supplier in any form is the property of the Supplier or its suppliers. The Supplier hereby grants to the Reseller a limited non-exclusive non-transferable license to use this information for its internal use only for the purpose of the Reseller’s purchases and sale of the Products sold by it and the Reseller warrants that such information shall only be used by it for such purposes. The Supplier shall be entitled to stop the provision of information at any time without notice. The Supplier gives no warranty either express or implied as to the information so given or its accuracy.
3.1.2 Product pricing and other information provided by the Supplier to the Reseller does not amount to an offer by the Supplier to sell such Product at that price or on any other terms.
3.1.3 In the case of orders placed for Products, notwithstanding any acceptance or deemed acceptance by the Supplier of any offer for any Product, if there has been a material and obvious pricing error by the Supplier then the Supplier shall be entitled prior to dispatch of such order and with confirmation from the Reseller to either amend the order, notify the Reseller of the change and invoice the Reseller for the correct price of the Product at the date of the order or at the Supplier’s sole discretion cancel the order with no penalty.
3.1.4 All prices are subject to change without notice and errors and omissions are excepted from all price lists, promotions or other information as provided from time to time by the Supplier to the Reseller.
3.1.5 Unless otherwise agreed in writing by an authorized representative of the Supplier, all prices exclude the cost of delivery.
3.1.6 All prices and charges are exclusive of any applicable Sales Tax, which the Reseller will be responsible for collecting and remitting.
3.3.1 The Reseller shall be responsible to the Supplier for ensuring the accuracy of the quantities, pricing and terms of any order.
3.3.2 No order that has been placed by the Reseller and accepted by the Supplier may be withdrawn or canceled by the Reseller except with the agreement in writing of an authorized representative of the Supplier.
3.3.3 All orders placed with the Supplier by the Reseller for Products shall constitute an offer to the Supplier under these terms and conditions subject to the availability of the Products and to acceptance of the order by the Supplier’s authorized representative.
3.3.4 All orders are accepted, and Products supplied, subject to the terms and conditions of this Agreement and any terms and conditions referred to herein only and it is hereby agreed that these terms and conditions shall prevail over any of the Reseller’s terms and conditions of purchase.
4.1 Orders of Products shall be placed by the Reseller in accordance with the Supplier’s policies notified to the Reseller from time to time.
4.2 The price for the Products shall be as stated in the Supplier Price List at the time of the order. The Supplier shall require the Reseller to sell the Products at the recommended retail price as specified in the Supplier Price List.
4.3 Payment for the Products shall be made in full by the Reseller with the Reseller’s order.
4.4 Any payment not received by the due date for payment will be considered overdue and will remain payable by the Reseller together with interest for late payment.
4.5 The Reseller must notify the Supplier in writing within 7 days of the receipt of an invoice of any errors within the Failure to notify the Supplier within 7 days of the receipt of the invoice will result in an assumption by the Supplier that the Reseller has accepted its invoice in full.
4.6 No title to the Products shall pass to the Reseller unless and until the Supplier has been paid in full. Notwithstanding the Supplier’s retention of title in the Products until relevant invoice amounts have been paid the Supplier reserves the right to undertake legal proceedings to recover the cost of the Products supplied should the Reseller not make full payment by the due date for payment. Any and all associated costs in connection with any legal proceedings undertaken to recover amounts due will be payable in full by the Reseller.
4.7 The Supplier reserves the right to stop supplying a particular Product to the Reseller at any time.
5.1 Any date or time supplied by the Supplier for shipment and delivery is to be treated as an estimate only. Shipment may be postponed because of conditions beyond the Supplier’s reasonable control and in no event shall the Supplier be liable for any damages or penalty for delay in shipment or delivery.
5.2 Products supplied by the Supplier are delivered at the risk of the Supplier unless the Reseller stipulates a special method of delivery in which case Products are delivered at the risk of the Reseller.
5.3 Supplier will prepare all Products purchased under this Agreement and preserve, package, handle and pack them for shipment in a manner that will prevent loss or damage in transit, in conformance with good commercial practice, government regulations and other applicable requirements. Reseller is not liable for extra charges for packing, cartage or anything else unless stated in this Agreement. Supplier will ship the Products purchased under this Agreement to Reseller for delivery at the location and on the schedule specified by the Reseller. Transfer of title to Products occurs only at the time the Products are physically received by Reseller at Reseller’s designated location. The Reseller must inspect the Products immediately after delivery is complete. If any Products are opened or damaged (or not delivered) the Reseller must notify the Supplier within 48 hours of the delivery or expected delivery. Reseller may return rejected Products (due to damage) at Supplier’s expense and charge Supplier a reasonable handling charge. If proof of delivery is required, this must be requested within 7 days of the Reseller’s receipt of the invoice.
6.1 The Reseller acknowledges that Products are not eligible for return unless products arrive opened or damaged per Section 5.
6.2 The Supplier accepts no liability for any damage to or loss in transit of the Products returned to the Supplier and the Reseller will bear any such risk and costs.
8.1 Any risk of loss and damage to the Products supplied under this Agreement shall pass to the Reseller at the time the Products are physically received by Reseller at Reseller’s designated location except where the Reseller requests a special shipment method in which case the risk shall pass to the Reseller when the Products leave the Supplier’s premises.
8.2 Full legal title and interest in all Products shall remain vested in the Supplier and shall not pass to the Reseller unless and until the Supplier has received payment in full of all amounts due and owing from the Reseller to the Supplier.
8.3 During such time as the Products remain in the Supplier’s ownership the Reseller shall store or otherwise keep and mark the Products in such a way as to clearly identify that the Products are owned by the Supplier and shall not remove, obscure or delete any mark placed on the Products by the Supplier which may enable the Products to be identified.
9.1 This Agreement shall come into force on the Commencement Date and shall remain in force for a 12-month initial period, unless terminated earlier as provided for in this Agreement. After the initial period the Agreement shall be automatically renewed for successive one-year periods without further notice save and until terminated in accordance with the provisions of this Agreement.
9.2 Either party may terminate this Agreement with or without cause (and without payment of compensation) at any time by giving 90 days written notice to the other party.
9.3 The Supplier may terminate this Agreement immediately by notice if:
9.3.1 the Reseller fails to pay any sums due hereunder by the due date notwithstanding any provisions for late payment contained herein;
9.3.2 If a petition is filed in any court to declare one of the parties bankrupt or for a reorganization under the Bankruptcy Law or any similar statute and such petition is not dismissed in 30 days or if a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties;
9.3.3 the Reseller goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on the Reseller under this Agreement);
9.3.4 the Reseller ceases or threatens to cease to carry on business;
9.3.5 Anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Reseller;
9.4 In the event that the Reseller fails to observe or perform any of its obligations under this Agreement then the Supplier may terminate this Agreement on 30 days written notice provided that the breach complained of cannot be remedied by the Reseller within the 30 day period to the satisfaction of the Supplier.
9.5 The Supplier reserves the right to terminate this Agreement immediately by written notice to the Reseller if the Reseller repeats any breach of this Agreement after receiving a written notice from the Supplier warning the Reseller that repetition of the breach will or may lead to termination (whether or not the repeated breach is remedied within 30 days).
9.6 The Supplier reserves the right to immediately terminate this Agreement upon change of the Reseller’s management or a change of control within 28 days of the Supplier being made aware of such a change. The Reseller shall notify the Supplier in advance of any anticipated change of management or control.
Change of control shall be defined as (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.
10.1 If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof.
10.2 Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance of any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party; and the time for performance of that obligation shall be extended accordingly.
10.3 If the Force Majeure in question prevails for a continuous period in excess of six months the parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
Supplier shall indemnify, defend and hold harmless Reseller and its parents, subsidiaries and affiliated entities, and the officers, directors, employees, agents, representatives , shareholders, successors and assigns of each of them, from and against any and all uninsured claims, demands, causes of action, damages, losses, recall costs, liabilities, judgments, costs, fees and expenses including, without limitation, reasonable costs and expenses of investigation and settlement and reasonable attorneys’ fees and expenses (collectively, “Losses“) to the extent such Losses arise from (A) death, bodily injury or property damage caused by a defect in the design, materials or workmanship of a Product when used for its intended purpose in a manner consistent with the Product specifications; (B) Supplier’s failure to manufacture any Product in accordance with Supplier’s published specifications; (C) failure of any Product to perform in accordance with Seller’s published specifications; (D) Supplier’s failure to provide complete and accurate information regarding any Product, the hazards and risks associated with its use or the steps necessary to use the Product safely for its intended use; (E) any act or omission on the part of Supplier and its employees, agents, subcontractors, or vendors in performing pursuant to this Agreement; or (F) any claim of infringement of any intellectual property right related to the Products provided by Supplier. Such indemnification obligations shall survive the expiration or termination of this Agreement. Reseller shall have the right to actively participate in the defense of any such Losses, including but not limited to selection of counsel, formulation of strategy and approval of any settlement reached.
Reseller shall indemnify, defend and hold harmless Supplier and its parents, subsidiaries and affiliated entities, and the officers, directors, employees, agents, representatives, shareholders, successors and assigns of each of them, from and against any and all Losses to the extent such Losses arise from any third-party claim of any kind against the other, arising or resulting, in whole or in part, from the Reseller’s breach of the terms of this agreement, gross negligence or, reckless or willful misconduct arising under this Agreement.
11.1 The Reseller hereby acknowledges that any Intellectual Property or proprietary rights in the Products shall at all times and for all purposes vest and remain vested in the product Supplier.
11.2 Except as otherwise provided in section 11.0 (Indemnification), neither party shall in any circumstances be liable for loss of profits or revenue, loss of business or contracts, loss of anticipated savings, losses arising from loss of data and any other consequential losses or any losses which arise other than directly and naturally from a breach of contract.
12.1 Any data, knowledge or other information disclosed by either party which has been marked as confidential or proprietary by the disclosing party will be treated by the receiving party as confidential and proprietary information. The party receiving such information will not disclose the same. The obligation under this clause will not apply to any:
12.1.1 information that is or subsequently becomes publicly available through no fault of the disclosing party;
12.1.2 information that is acquired from a third party other than in connection with this Agreement and without an obligation of non-disclosure;
12.1.3 disclosure which is consented to by the other party in writing.
12.2 Both parties acknowledge that this Agreement is to be considered confidential. The terms and conditions of this Agreement shall not be disclosed to third parties.
12.3 In the event that either party should terminate this Agreement for any reason in the future, upon request, each party shall return to the other all confidential and proprietary information disclosed to it under this Agreement and which is in its possession or under its control at the time of the termination, regardless of format, within ten days following written request by the other party. Notwithstanding any such termination the obligations in this clause shall survive such termination.
12.4 Neither party may issue any press release regarding the execution or subject matter of this Agreement nor use the other party’s trademarks or trade names in any advertising, publicity, client list, presentation or promotion or to express or to imply any endorsement of its products or business, except as expressly permitted herein or with the other party’s prior written consent which may be withheld at its sole discretion.
13.1 This Agreement will be a binding obligation of the successors and permitted assigns of each party. Neither party hereto will have the right to assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party will have the right without such consent to assign this Agreement to any of its affiliates or to a successor or transferee of substantially all of its assets.
13.3 This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, supersedes all previous agreements and understandings between the parties with respect thereto and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties.
13.4 Each party acknowledges that in entering into this Agreement it does not do so on the basis of and does not rely on any representation warranty or other provision except as expressly provided herein and all conditions warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
13.5 With the exception of statements made fraudulently each party agrees that they will have no remedy in respect of any untrue statement made to them upon which they rely in entering into this Agreement and that their only remedies can be for breach of contract.
13.6 If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
13.7 In all matters pertaining to this Agreement the Reseller is and shall be an independent contractor. No employee of the Reseller shall be deemed to be an employee of the Supplier and vice versa. Nothing herein contained shall be construed to create a partnership, joint venture, or agency and neither party shall be liable for the obligations of the other.
13.8 Any waiver of either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provisions thereof.
13.9 This Agreement is intended to, and the parties shall, comply with all state and Federal health care fraud and abuse laws, including, but not limited to, the Anti-Kickback Statute, the Stark Law, the False Claims Act, and all of the regulations promulgated thereunder. Each party represents and warrants that it will not, in connection with this Agreement, solicit and/or receive any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in case or in kind or offering to pay or receive such remuneration (i) in return for referring an individual to the other party for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, by Medicare or Medicaid, or (ii) in return for purchasing, leasing or ordering or arranging for or recommending purchasing or ordering any good, facility, service or item for which payment may be made in whole or in part by Medicare or Medicaid.
13.10 Supplier will manufacture, package and market the Products and perform any services hereunder in compliance with all applicable federal, state, and local laws, ordinances, rules, regulations and executive orders (“Applicable Laws”) including, without limitation, the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.), as amended (“FDCA”). Supplier has and will maintain throughout the term of the Agreement all permits, licenses, registrations and other forms of governmental authorization and approval as required by law in order for Supplier to execute and deliver this Agreement and perform its obligations hereunder in accordance with Applicable Law. Supplier certifies that the manufacture, packaging, labeling and transportation in commerce of the Products purchased hereunder comply with Applicable Laws.
13.11 Supplier shall provide Reseller with literature and promotional materials as needed and notify Reseller immediately of any Product recalls, litigations or other complaints relating to the safety and/or suitability of the Products.
13.12 Supplier will maintain insurance covering claims related to its Products in industry standard amounts, at all times that this Agreement is in effect.
14.1 This Agreement shall be governed by and construed in all respects in accordance with the Laws of the State of New York and each party hereby submits to the non-exclusive jurisdiction of the New York Federal and State Courts.
15.1 Notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post, prepaid recorded delivery or facsimile to the address of the party as set out on the first page of this Agreement or as otherwise notified in writing from time to time.
15.2 A notice shall be deemed to have been served:
15.2.1 at the time of delivery if delivered personally;
15.2.2 48 hours after posting in the case of an address in the United States of America and 96 hours after posting for any other address, or upon receipt if proof of receipt if mailed via certified or overnight mail;
15.2.3 2 hours after transmission if served by facsimile on a working day prior to 00pm or in any other case at 10.00am on the next working day after dispatch.
15.3 In proving service, it will be sufficient to prove:
15.3.1 in the case of personal service that it was handed to the party or delivered to or left in an appropriate place for receipt of letters at its address;
15.3.2 in the case of a letter sent by post, that the letter was properly addressed, stamped and mailed via certified or overnight mail; or
15.3.3 in the case of facsimile, that it was properly addressed and dispatched to the number of that party.
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Document Name: Reseller Sales Agreement
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