Dealer Agreement


By submitting your dealer application you agree that you have read and understand this Agreement and you accept and agree to be bound by the following terms and conditions.  You represent to us that you are lawfully able to enter into contracts and if you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.  

Zenbooth, Inc (“Company”, “we”, “us”, or “our”) and you or the entity you represent (“Dealer”, “you” or “your”) agree to all terms of the Agreement effective on the date you first agreed to this Dealer Agreement or first placed an order with us as a Dealer, whichever is earlier (Effective Date).

  1. Appointment as Authorized Company Dealer.
    1. Appointment.  Subject to the terms of this Agreement and company approval, the company appoints Dealer, and Dealer accepts such appointment, as an independent Dealer of the products listed on the Dealer Portal (the “Company Products”) in and limited to the territory of the United States (the “Territory”).  Company Products do not include any other products distributed by Company other than those listed on Wholesale portal.  Dealer shall have no right to appoint subdealers under this Agreement, unless (i) Dealer has obtained the prior written consent of Company, (ii) the subdealer agrees to not use further subdealers, (iii) Dealer enters into written agreements with its subdealers consistent with the terms and conditions of this Agreement and acceptable in form and content to Company and (iv) Dealer strictly enforces the terms of such agreements.  Subject to the provisions in Section 12, Dealer’s appointment shall be exclusive in and limited to sales in Dealer’s brick and mortar locations in the Territory (and online as approved). Dealer shall refrain from any mail order, telephone order sales, and online sales (unless approved by Company) of Company Products. Dealer shall sell Company Products only to consumers visiting Dealer's authorized location(s).
    2. Company's Reserved Rights.  Company reserves the rights at any time, in its sole discretion and without liability to Dealer, to change, or to add to or delete available Company Products to Dealer.
    3. Dealer Prices.  Dealer will determine in its sole discretion the actual prices at which Company Products will be sold to its customers.  Dealer will notify Company of its current customer pricing on a quarterly basis or when otherwise reasonably requested by Company in accordance with all applicable laws.
  2. Obligations of Dealer.
    1. Promotion and Advertising.  Dealer will use its best efforts to: (1)  promote the distribution of Company Products in the Territory in accordance with any terms and policies of Company as may be announced from time to time; and (2) satisfy those reasonable criteria and policies with respect to Dealer’s obligations under this Agreement as may be communicated in writing to Dealer by Company from time to time. Dealer will advertise Company Products in the Territory in accordance with this Agreement (and, at least as much or more than Competitor’s Products), provided that Dealer will not use advertisements that have not been approved in writing by Company.
    2. Dealer Personnel.  Dealer will train and maintain a sufficient number of capable technical and sales personnel having the knowledge and training necessary to: (i) inform customers properly concerning the features and capabilities of Company Products and, if necessary, competitive products; (ii) service and support Company Products in accordance with Dealer’s obligations under this Agreement; and (iii) otherwise carry out the obligations and responsibilities of Dealer under this Agreement.  Dealer and its staff will have a reasonable understanding of the specifications, features and benefits of the Company Products and similar products in general, and will develop sufficient knowledge of the industry, of Company Products and of products competitive with Company Products (including specifications, features and benefits) so as to be able to explain in detail to its customers the differences between Company Products and competitive products.
    3. Technical Support.  Company will use reasonable efforts to provide limited technical support to Dealer regarding the repair, service or maintenance of the Company Products during the Company's regular business hours as published from time to time.  Company reserves the right in its sole discretion to revise support standard to comply with applicable laws, rules, regulations or orders or to address changes in the business climate. As some services require substantial time and effort to complete, Company reserves the right, in its sole discretion, to institute separate charges or fees for the technical support services.  
    4. Dealer Packaging and Handling.  If required by Company, Dealer will distribute Company Products with all labeling, packaging, instructions, warnings and disclaimers intact as delivered to Dealer; provided, however, that Dealer shall apply warning and use instructions and other legal and marketing language (including third-party seals or certifications) in the local language(s) as required by applicable law or as deemed necessary by Dealer and Company, which additional instructions and language shall be approved by Company prior to application.  Dealer shall be responsible for taking all actions necessary for Dealer to obtain any such third-party seals or certifications from any governmental or non-governmental entity on behalf of Company; provided however, Company will cooperate with Dealer in providing information necessary for Dealer to obtain such third-party seals or certifications. Dealer shall be responsible for complying with all applicable laws when applying any additional labeling information under this paragraph. Notwithstanding the foregoing, Dealer shall not apply any marketing language, including third-party seals or certifications, on any product without obtaining the express written approval of the certifying party and Company.  Dealer will handle and transport all Company Products in a manner so as to preserve the quality of the products and will refrain from exposing the Company Products to excessive heat and sunlight.
    5. Competing Products.  Upon reasonable notice to Company, Dealer may represent or distribute during the term of this Agreement any products which in Company's reasonable opinion, compete, directly or indirectly with Company Products.
    6. Dealer Covenants.  Dealer will:  (i) conduct business in a manner that reflects favorably at all times on Company Products and the good name, goodwill and reputation of Company; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company, Company Products or the public; (iii) make no false or misleading representations with regard to Company or Company Products; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Company or Company Products; (v) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of Company Products that are inconsistent with the literature distributed by Company; and (vi) not enter into any contract or engage in any practice detrimental to the interests of Company and Company Products as determined by Company and as communicated by Company to Dealer.
    7. Compliance with Law.  Dealer will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to Company Products.
    8. Market Conditions.  Dealer will advise Company promptly concerning any market information that comes to Dealer’s attention respecting Company, Company Products, Company’ market position or the continued competitiveness of Company Products in the marketplace.  Dealer will confer with Company from time to time at the request of Company on matters relating to market conditions, sales forecasting and product planning relating to Company Products.
    9. Prohibition on Sales to Resellers. Dealer is only authorized to, and agrees to, engage in retail sales by selling Company Products only to end users. Dealer is expressly prohibited from selling to other retailers, wholesalers, Dealers, exporters or anyone who has the intention if reselling the product, subject to Section 12. Further, Dealer agrees to take all reasonable and necessary steps to determine that Company Products are not being resold by its customers to other resellers.
    10. Costs and Expenses.  Except as expressly provided herein or agreed to in writing by Company and Dealer, Dealer will pay all costs and expenses incurred in the performance of Dealer’s obligations under this Agreement.
  3. Inspections, Records and Reporting.
    1. Notification.  Dealer will: (i) notify Company in writing of any claim or proceeding involving Company Products within ten (10) days after Dealer learns of such claim or proceeding; and (ii) report promptly to Company all claimed or suspected product defects.
    2. Records.  Dealer will maintain, for at least three (3) years after termination of this Agreement, its records, contracts and accounts relating to distribution of Company Products, and will permit examination thereof by authorized representatives of Company at all reasonable times.  Such records will include, without limitation, the location of each Company Product distributed by Dealer and the party maintaining possession or control of each Company Product. Such records shall also include for each customer in the Territory, the customer name and address.  
  4. Purchase of Company Products, Order Procedure and Delivery.

    (a) Controlling Terms.  The terms and conditions of this Agreement and of the applicable Company invoice or confirmation, along with the additional policies in effect at the time of sale provided in the terms and conditions on Company website at (and applicable only in this Section 4 (f) and (h) as referenced below),  shall apply to each order accepted or shipped by Company hereunder.  The provisions of Dealer’s form of purchase order or other business forms shall not apply to any order notwithstanding Company's acknowledgment or acceptance of such order, except for the following terms which Company shall accept with respect to each order pursuant and subject to the provisions of this Agreement (i) quantity and type of Company Products ordered; and (ii) requested delivery dates.

(b) Prices to Dealer.  To enable the company to run product promotions, prices on the company website may change with notice on the website. When prices increase, the company will honor pricing in any valid quote that has not expired.  The company reserves the right to change prices based on changes in quantities or total value of previously quoted contract quotations, changed orders from the Dealer and to correct pricing on orders received with modifications from the original order. Unless otherwise acknowledged in writing, prices do not include freight or delivery, in-transit insurance, storage, service, taxes, receiving or installation.

(c) Payment Terms.  All payments shall be made in the invoice currency.   Company requires an agreed upfront payment before production begins. All payments must be received from the Dealer as identified on the purchase order, as no third party payments will be accepted unless approved in writing by Company. Acceptance of third party payments is an accommodation and does not create any relationship between Company and the third party.

Company reserves the right to refuse, cancel or delay shipment to Dealer when Dealer’s credit is impaired, when Dealer is delinquent in payments or fails to meet other credit or financial requirements established by Company, or when Dealer has failed to perform its obligations under these terms.

(d) Credit Terms. Dealer agrees to pay for the Company Products as invoiced.  Subject to the provisions of this subsection, as of the effective date of this Agreement, Company's credit terms with respect to Dealer shall be payment in advance of shipment.

(e) Taxes and Tariffs.  Unless stated in writing, Company prices do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which Company may be required to pay or collect upon the delivery of Company Products or upon collection of the prices or otherwise.  Should any tax or levy be made, Dealer agrees to pay such tax or levy and indemnify Company for any claim for such tax or levy demanded. Dealer represents and warrants to Company that all Company Products acquired hereunder are for redistribution in the ordinary course of Dealer’s business, and Dealer agrees to provide Company with appropriate resale certificate numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any such taxes or fees.  

(f) Cancellation, Warranty and Returns.  Company Products are sold subject only to Company’s cancellation, return and warranty policies in effect at the time of sale, provided in the terms and conditions on Company website at The Company's cancellation, return and warranty policies apply only to the Dealer's customer. The Dealer must make commercially reasonable efforts to support these policies. If the Dealer is acting on their customers’ behalf for these policies, the Dealer must obtain authorization from the Company before authorizing any returns, repairs or refunds that will be covered by the Company.  The Dealer will bear costs for any warranty claims or returns that arise due to Dealer’s errors or omissions (at either point of sale, delivery or installation).

    Where the Dealer has independently provided install or delivery services to an Dealer’s customer without the participation or involvement of the Company, and the Dealer’s customer makes a warranty claim, the Dealer may be required to provide services to help repair, replace or remove the product. Unless agreed otherwise, the Company will only reimburse for authorized labor costs. The Company will ship any replacement parts directly to the location requested in the warranty claim within the contiguous United States or Canada.

(g) No Setoff.  Dealer shall not setoff or offset against Company's invoices any amounts that Dealer claims are due to it.  Dealer shall bring any claims or causes of action it may have in a separate action and waives any right it may have to offset, setoff or withhold payment for the Company Products delivered by Company.

(h) Shipment and Delivery.  Company Products are shipped subject only to Company’s shipping policy in effect at the time of sale, provided in the terms and conditions on Company website at  Company does not ship product or provide installation services outside of the contiguous United States or Canada.  Other shipping and delivery arrangements may be made as mutually agreed.

  1. Statements and Records.
    1. Books of Account and Other Records.
      1. Dealer shall keep full and accurate books of account and all documents and other material relating to this Agreement at Dealer’s principal office at all times during the initial and all renewal terms of this Agreement, if any, and for two (2) years thereafter.  During business hours and upon reasonable notice, Company or its authorized representatives shall have the right to examine and make necessary copies of such books, documents and other material for so long as this Agreement is in effect and for a period of two (2) years thereafter.
      2. Company acknowledges that Dealer’s records are strictly confidential, and neither Company nor its representatives shall reveal any of the contents of such records to third parties except insofar as necessary to enforce Company's rights under this Agreement or to register, protect or enforce Company's rights in Company Products.
  2. Trademarks, Trade Names, Logos, Designations and Copyrights.
    1. Use During Agreement.  During the term of this Agreement, Dealer is granted by Company a non-exclusive, limited license to use the trademarks, trade names, logos, designations and copyrights Company uses for Company Products (the “Company IP”) solely in connection with Dealer’s advertisement, promotion, packaging and distribution of Company Products in the Territory.  Dealer shall not use any advertising, promotional, packaging or other materials for Company Products without Company's prior written approval. Dealer’s use of the Company IP will be in accordance with Company's policies in effect from time to time, including but not limited to trademark usage and cooperative advertising policies. Dealer agrees not to attach any additional trademarks, trade names, logos or designations to any Company Product.  Dealer also agrees not to use any Company IP on any internet website or outside the Territory without the prior written approval of Company. Dealer further agrees not to use any Company IP in connection with any non-Company product. Dealer further agrees not to use or register any domain names which use or include Company IP without the prior written consent of Company. Dealer
    2. Dealer Does Not Acquire Proprietary Rights.  Dealer has paid no consideration for the use of the Company IP, and nothing contained in this Agreement will give Dealer any right, title or interest in any of the Company IP.  Dealer shall not use in the Territory any trademarks, tradenames, logos, company names, domain names or other designations nor attempt to register any trademarks, trade names, logos, company names, domain names or other designations so resembling Company's IP as to likely cause confusion or deception.  Dealer acknowledges that Company owns and retains all Company IP and other proprietary rights in or associated with Company Products, and agrees that it will not at any time during or after this Agreement claim any interest in or do anything that may adversely affect the validity of any Company IP or any other Company trademark, trade name, logo, domain name, designation or copyright belonging to or licensed to Company (including, without limitation any act or assistance to any act, which may infringe or lead to the infringement of any of Company's proprietary rights).  Dealer agrees to adhere to Company policies and instructions regarding use of the Company IP, as may be published or communicated to Dealer from time to time. All uses of the Company IP shall inure to the benefit of Company.
    3. No Continuing Rights.  Upon expiration or termination of this Agreement, Dealer will immediately cease all display, advertising and use of all Company IP and will not thereafter use, advertise or display any trademark, trade name, logo or designation which is, or any part of which is, similar to or confusing with any trademark, trade name, logo or designation associated with any Company Product.
    4. Obligation to Protect.  Dealer agrees to use reasonable efforts to protect Company's proprietary rights and to cooperate at Dealer’s expense in Company's efforts to protect its proprietary rights.  Dealer agrees to promptly notify Company of any known or suspected breach of Company's proprietary rights that comes to Dealer’s attention. Company may initiate or refrain from initiating at its sole discretion any legal actions against infringement of Company IP.
  3. No Assignment.

Company has entered into this Agreement with Dealer because of Dealer’s commitments in this Agreement, and further because of Company's confidence in Dealer, which confidence is personal in nature.  Dealer may not assign its rights or delegate its duties under this Agreement without the prior written consent of Company. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

  1. Duration and Termination of Agreement.
    1. Term.  The term of this Agreement shall commence on the Effective Date and continue in effect for a period of one year. Thereafter, this Agreement shall automatically renew for successive terms of one (1) year each, unless either party provides notice to the other of its intent to terminate this Agreement not less than thirty (30) days before the end of the then current term or is otherwise terminated under this Section.  Nothing shall be interpreted as requiring either party to renew or extend this Agreement.  Notwithstanding the provisions of this Section 8(a), or any other provisions of this Agreement, this Agreement may be terminated prior to the expiration of its stated term as set forth below.
    2. Company Termination For Cause.  Company may terminate this Agreement at any time prior to the expiration of its stated term in the event that:
      1. Dealer defaults in any payment due to Company and such default continues unremedied for a period of ten (10) days following written notice of such default;
      2. Dealer fails to perform any other obligation, warranty, duty or responsibility or is in default with respect to any term or condition undertaken by Dealer under this Agreement and such failure or default continues unremedied for a period of thirty (30) days following written notice of such failure or default;
      3. Dealer engages in any conduct or activity that is detrimental to Company’s image, brands, or the Company Products, including any criminal or fraudulent acts;
      4. Dealer at any time challenges the validity of any Company IP or other proprietary rights in or associated with the Company Products;
      5. Dealer sells all or substantially all of its assets, or undergoes a Change of Control, becomes subject to involuntary bankruptcy, receivership, or other involuntary proceedings, make an assignment for the benefit of its creditors, is dissolved, liquidated, or acquired, merged, or sells substantially all of its assets.  For purposes of this section, a Change of Control shall mean (a) acquisition by a third party of a majority of the share ownership or equity interest in Dealer, (b) Control by a third party of a majority of members of the board of directors or other management body of a Party; or (c) merger by Dealer with a third party (excluding those third parties whose net assets are less than fifty percent (50%) of those of Dealer). Control shall mean the possession, directly or indirectly, of power to direct or cause the direction of  management or policies (whether through ownership of securities or otherwise);
    3. Termination for Convenience.  Company may terminate this Agreement at its sole discretion for any reason whatsoever upon thirty (30) days written notice to the Dealer, without any liability to the Dealer.
    4. Automatic Termination.  This Agreement terminates automatically, with no further act or action of either party, if a receiver is appointed for Dealer or its property, Dealer makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against Dealer under any bankruptcy, insolvency or debtor’s relief law, or Dealer is liquidated or dissolved.
    5. Orders After Termination Notice or Notice of Default.  In the event that any notice of termination or notice of default of this Agreement is given, Company will be entitled to reject all or part of any orders placed thereafter and to cancel any previously accepted orders.  Notwithstanding any credit terms made available to Dealer prior to such notice, any Company Products shipped thereafter shall be paid for by certified check, cashier’s check, or wire transfer prior to shipment.
    6. Effect of Termination or Expiration.  Upon termination or expiration of this Agreement:
      1. Company, at its option and at any time after such termination or expiration, may reacquire any or all Company Products shipped to Dealer by Company then in Dealer’s inventory at prices not greater than the prices paid by Dealer for such products (or, if the products are not in unopened factory sealed boxes, fifty percent (50%) of such prices).  Upon receipt of any Company Products so reacquired from Dealer, Company shall issue an appropriate credit to Dealer’s account with respect to amounts owed to Company by Dealer, if any, and Company shall pay any remaining amounts owed by Company, if any, for such repurchased Company Products within thirty (30) days of Company's receipt of such Company Products.
      2. The due dates of all outstanding invoices to Dealer for Company Products automatically will be accelerated so they become due and payable on the effective date of termination or expiration, even if longer terms had been provided previously.  All orders or portions thereof remaining unshipped as of the effective date of termination shall automatically be cancelled.
      3. For a period of two (2) years after the date of termination or expiration, Dealer shall make available to Company for inspection and copying all books and records of Dealer, including all customer lists, statements of trade terms and those books and records that pertain to Dealer’s performance of and compliance with its obligations, warranties and representations under this Agreement.
      4. Dealer shall cease using any and all Company IP.
      5. To the extent permissible by applicable law, Dealer shall refrain from soliciting any employees or consultants of Company for the duration of the Term of this Agreement.  

(vi) Dealer’s confidentiality obligations in Section 13 below shall continue indefinitely.

    1. No Damages For Termination or Expiration.  NEITHER COMPANY NOR DEALER SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 8.  DEALER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Neither Company nor Dealer will be liable to the other on account of termination or expiration of this Agreement for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Company or Dealer or for any other reason whatsoever based upon or growing out of such termination or expiration.  Dealer acknowledges that: (i) Dealer has no expectation and has received no assurances that any investment by Dealer in the promotion of Company Products will be recovered or recouped, that Dealer will obtain any anticipated amount of profits by virtue of this Agreement or that Company has agreed (explicitly or implicitly) to extend or renew the Term beyond the duration specified herein or to preserve the same exclusivity provisions in any extended or renewed Term; and (ii) Dealer will not have or acquire by virtue of this Agreement or otherwise any vested, proprietary or other right in the promotion of Company Products or in “goodwill” created by its efforts hereunder.  THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO THIS AGREEMENT AND THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.

For the avoidance of doubt, any termination of this Agreement shall be without prejudice to any rights accrued in favor of either party in respect of any breach committed prior to the date of such termination by the other party including (without limitation) the breach giving rise to termination.

    1. Survival. Company's rights and Dealer’s obligations to pay Company all amounts due hereunder, as well as any other provisions which by their nature may reasonably be interpreted to survive termination shall survive termination or expiration of this Agreement.
    2. Relationship of the Parties.  The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship or franchise between Company and Dealer.  Neither party, by virtue of this Agreement, will have any right, power or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Dealer has the sole discretion to determine Dealer's methods of operation, Dealer's accounting practices, the types and amounts of insurance Dealer carries, Dealer's personnel practices, Dealer's advertising and promotion, Dealer's customers, and Dealer's service areas and methods. The relationship created hereby between the parties is solely that of seller and Dealer. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then Company may immediately terminate this Agreement.
  1. Indemnification.

Dealer will  indemnify, defend and hold Company, our affiliates, and our officers, directors, employees, agents, and shareholders, and our assigns, heirs, legal representatives and successors (collectively the “Zenbooth Group”) harmless from and against any and all costs, losses, liabilities, damages, lawsuits, judgments, claims, actions, penalties, fines and expenses (including, without limitation, interest, penalties, reasonable attorney fees and all monies paid in the investigation, defense or settlement of any or all of the foregoing) (“Claims) arising out of, or incurred in connection with: (a) the breach or default of any of your representations, warranties,  covenants, duties or obligations under this Agreement; (b) any negligence, misrepresentation, other tort, or breach of contract (including breach of warranty) or statutory duty by, you or any of your agents or resellers; (c) your failure to comply with, or any violation of, this Agreement or any applicable  law,  statute, ordinance, governmental administrative order, rule or regulation, including without  limitation the violation of  any country’s import or export laws or regulations;  (d) any representation you make beyond those in our standard warranty; (e) your terminating or cancelling agreements with our competitors in order to become an authorized dealer for Company; and (f) claims of any of your employees or agents for compensation and/or damages arising out of the termination of this Agreement for any reason whatsoever.  In the event the Zenbooth is entitled to indemnification under this Section, the Zenbooth is entitled to representation by counsel of its own choosing, at your sole cost and expense.   Zenbooth has the right to conduct and control all negotiations, litigation and other proceedings arising from any such Claim; provided, (a) that the Zenbooth  will not be authorized to settle any such Claims in a manner that obligates you to pay money or otherwise contribute to the settlement without your prior written consent, and (b) upon your request, the Zenbooth will inform you with respect to the status of any Claim.

  1. Warranties.
    1. Warranties.  Dealer represents and warrants that:  (i) Dealer has the knowledge, experience, expertise, and resources to perform all of its obligations under this Agreement; (ii) Dealer has full power and authority to execute, deliver and perform this Agreement; it is a corporation duly organized, validly existing and in good standing under the laws governing its incorporation and has full corporate power and authority to execute, deliver and perform this Agreement; (iii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary action of Dealer and Dealer is qualified to do business in all jurisdictions where such qualification is required for its performance hereunder; and (iv) Dealer holds, and throughout the term of this Agreement shall maintain, all required permits, licenses, approvals or other authorizations, and is in compliance with all necessary legal or other requirements necessary to perform its obligations under this Agreement.
    2. Dealer Warranty.  Dealer will make no warranty, guarantee or representation, whether written or oral, on Company's behalf.
  2. Limited Liability.
    3. Dealer agrees that the limitations of liability and disclaimers of warranty set forth in this Agreement will apply regardless of whether Company has tendered delivery of Company Products or Dealer has accepted any Company Product.  Dealer acknowledges that Company has set its prices and entered into this Agreement in reliance on the disclaimers of liability, the disclaimers of warranty and the limitations of liability set forth in this Agreement and that the same form the basis of the bargain between the parties.
  3. Territorial Restrictions
    1. Dealer Sales to Third Parties.  Dealer shall not, directly or indirectly (through brokers, Dealers or otherwise), actively sell or agree to sell any of the Company Products to any wholesaler, consignee, broker, retailer, customer or other third party buyer.  Without limiting the foregoing, Dealer hereby represents, warrants, covenants and guarantees that any and all Company Products delivered to Dealer by Company will be transported by Dealer only in sealed containers en route to a final destination.
    2. Dealer Application of Payments.  Without limiting any other provision hereof, Company shall have the right to apply any advance payments received from Dealer for outstanding purchase orders against any damages claimed owing hereunder, regardless of whether Company was aware of any breach of this Agreement at the time it accepted any such outstanding order and any payment therefore, in which event Company shall be relieved of any obligation to satisfy such order without liability of any kind to Dealer.
    3. Breach.  Dealer acknowledges and agrees that the active sale of Company Products outside of the Territory constitutes a breach of this Agreement and a violation of Company's rights and, among other things, will interfere with Company's contractual relations with third parties and with Company's competitive advantage.  In order to assure that Company's rights are protected, Dealer agrees that, and without otherwise derogating from or limiting Company's rights under Section 8 above, in the event of any breach by Dealer of the above provisions of Section 12 of this Agreement, Company shall have the following rights: (1) to terminate this Agreement and collect any unpaid amounts for Company Products sold and delivered by Company to Dealer; (2) to obtain injunctive relief, a decree of specific performance or any other equitable remedy available under the applicable law before a court or governmental entity of competent jurisdiction, including without limitation a court or governmental entity located in the locale where the Company Products sold in breach of this Section 12 may be found; and (3) to seize and otherwise stop the importation of such products through administrative action, including, but not limited to, U.S. Customs Service procedures and non-U.S. customs procedures.
  4. Dealer Confidentiality
    1. Confidential Information.  “Confidential Information” consists of:  (i) any information designated in writing by either party as proprietary or confidential, or if orally disclosed, identified at the time of disclosure as proprietary or confidential and confirmed in writing to have been confidential within thirty (30) days of disclosure; (ii) Company's business and marketing plans with respect to Company Products and any other products; and (iii) the terms and conditions of this Agreement.
    2. Restrictions.  Except as expressly authorized in writing, neither Company nor Dealer shall disclose to any person or entity or use any Confidential Information of the other party except as reasonably necessary to perform and exercise its rights and obligations hereunder or to comply with applicable law or government authorities.  Neither Company nor Dealer shall disclose any Confidential Information to any person or entity that has not agreed in writing to keep such information confidential. Any reproduction or copy of Confidential Information shall carry the same proprietary and/or confidential notices and legends that appear on the original.
    3. Nonconfidential Information.  The foregoing restrictions shall not apply to information that:  (i) is already known to the receiving party without restriction on use or disclosure at the time of communication to the receiving party; (ii) is or becomes publicly known through no wrongful act or inaction of the receiving party; (iii) has been rightfully received from a third party authorized to make such communication, without restriction on use or disclosure; or (iv) has been independently developed by the receiving party.  The receiving party shall have the burden of proving the existence of the foregoing exceptions.
  5. Governing Law and Dispute Resolution.
  1. Governing Law.  The validity, interpretation, and performance of this Agreement will be determined in accordance with the laws of California, without regard to conflict of laws rules and principles and excluding the Convention on Contracts for the International Sale of Goods.  

     (b) Injunctive Relief.  Dealer acknowledges that the misuse by Dealer of the rights to use Company’s IP could result in irreparable harm, and that remedies at law for such breach of this Agreement would be inadequate.  Accordingly, Company is entitled to specific performance and/or injunctive relief without any requirement to post a bond as a condition to such remedy and/or without alleging or proving the amount of inadequacy of monetary damages as a remedy or the exhaustion of other available remedies.  Any such remedy will be in addition to, and not exclusive of, all other remedies available at law or in equity.

     (c) Arbitration.   In the event of any controversy or claim arising out of or relating to this Agreement or a breach thereof, the parties must consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution.  If they do not reach settlement within a period of 60 days, then, upon notice by any party to the other, any unresolved controversy or claim will be settled by arbitration before the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.  The arbitration will use 3 arbitrators and the place of arbitration will be in San Francisco, California. The parties agree that the costs of arbitration will be borne equally by the parties, but with each party bearing its costs of representation. The parties acknowledge that arbitration is final, binding and enforceable in any court of competent jurisdiction and that they waive the right to seek remedies in court, including the right to trial by jury.

  1. General.
    1. Waiver.  The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind.
    2. Notices.  All notices and demands hereunder will be in writing and will be served by personal service, mail or confirmed facsimile transmission at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party).  All notices or demands by mail shall be by certified or registered airmail, return receipt requested and shall be deemed complete upon receipt.
    3. Attorneys’ Fees.  In the event any arbitration is brought by either party in connection with this Agreement, the prevailing party in such arbitration or litigation shall be entitled to recover from the other party all the costs, reasonable attorneys’ fees and other expenses incurred by such prevailing party in the arbitration, and all other costs and expenses related thereto.
    4. Severability.  If any term or provision of this Agreement shall be found to be invalid, illegal or otherwise unenforceable, such finding shall not effect the other terms or provisions of this Agreement, or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement.
    5. Force Majeure.  Company shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Company's reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages of transportation, facilities, fuel, energy, labor or materials.  In the event of any such delay, Company may defer the delivery date of orders for Company Products for a period equal to the time of such delay.
    6. Equitable Relief.  Dealer acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information of Company will cause Company irreparable injury for which there are inadequate remedies at law, and that notwithstanding the provisions of Section 14, in the case of any such breach, Company will be entitled to equitable relief (including injunctive relief) from a court of law in addition to all other remedies provided by this Agreement or available at law.
    7. Entire Agreement.  This Agreement, along with the certain aforementioned terms and conditions on Company website at (specific only to Section 4 (f) and (h) of this Agreement), constitutes the complete and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter.  In the event of a conflict or inconsistency between this Agreement and the terms and conditions on the Company website at, this Agreement shall control and govern the rights and obligations of the parties.  Dealer acknowledges that it is not entering into this Agreement on the basis of any representations not expressly contained herein.  Any modifications of this Agreement must be in writing and signed by both parties hereto. Any such modification shall be binding upon Company only if and when signed by one of its duly authorized officers.