WHEREAS, Manufacturer is in the business of researching, manufacturing, marketing and selling aromatherapy vaporizers and related accessories (collectively, the “Products”);
WHEREAS, Partner is in the business of promoting, distributing, marketing and selling various products; and
WHEREAS, Manufacturer desires to appoint Partner and Partner desires to accept such appointment as a non-exclusive Partner of the Products in the United States of America:
NOW THEREFORE, in consideration of the foregoing, and of the mutual covenants, terms and conditions hereinafter expressed, Manufacturer and Partner agree as follows:
1. Appointment, Obligations, Grant of Rights and Exclusivity.
1.1 Appointment. Manufacturer hereby grants, and Partner accepts, the non-exclusive, limited right to promote, market, distribute and sell the Products in retail exclusively in the United States of America, without the right to sub-distribute.
1.2 Partner’s Obligations.
A. Online Promotion Limitations. Partner’s online promotion of the Products shall be solely made through Partner’s primary web address and Partner shall not promote, advertise or sell the Products on any auction site, discount retail site, penny auctions site, on, through or in any other online storefront website or e-commerce site or through any social media channels without the prior written consent of Manufacturer. Prohibited sites include, without limitation, Craigslist.com, Ebay.com, Amazon.com, Ovestock.com and Rakuten.com. In addition, Partner shall not permit any other Retailer to promote, advertise or sell the Products directly or indirectly through any online sales channel.
C. Minimum Advertised Price
. Partner agrees to comply with the Manufacturer’s Minimum Advertised price (“MAP
”), which is the final advertised adjusted retail price at which Products are offered to the public as determined by the Manufacturer, with respect to all online and offline sales of Products. Partner hereby expressly agrees not advertise any Product for less than the MAP set by Manufacturer for such Product. As of September 18, 2015, the MAP for [The Herbalizer] is $[679.00] as reflected on the Herbalizer website, www.herbalizer.com
A. Geographic Limitations. Partners may only sell Products in the United States of America, unless the Manufacturer otherwise gives written approval.
1.3 Grant of Rights. Subject to the terms and conditions of this Agreement, Manufacturer hereby grants Partner a limited, non-exclusive, right, without right to sub-license, to use Manufacturer’s trademarks and logos, solely for the purpose of promoting, marketing, distributing and selling the Products, in print, web and broadcast media. Partner must receive the prior written approval of Manufacture for the use of any artwork created by Partner for purposes of promoting the Products. Partner agrees only to use logos, images and product information authorized by Manufacturer in any print, electronic or broadcast media. All media formats, including all websites under Partner’s control, must include proper trademark disclaimers. Partner is not permitted to use any of Manufacturer’s trademarks, trade names or logos in Pay Per Click campaigns, e-channels, or to register similar sounding web domains that may cause confusion to consumers or to suggest in any way that Partner is an official representative of Manufacturer or the Products. Manufacturer reserves the right to refuse to sell, or allow any or all of its trademarked products to be sold to anyone, which Manufacturer believes, in its sole discretion, may cause harm to Manufacturer’s brand or image or the marketability of the Products.
1.4. Products Proprietary. Partner acknowledges and agrees that the Products are proprietary to Manufacturer.
2. General Provisions.
2.1 Assignment. Neither Party may assign its rights nor delegate the performance of its duties or other obligations under this Agreement unless consented to in writing by the other party and any attempt to do so shall be null and void.
2.2 Governing Law. This Agreement and all sales transactions made pursuant hereto shall be governed by the laws of the State of California without regard to conflict of laws.
2.3 Notices. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate Party by personal delivery, recognized overnight services (such as Federal Express) or by electronic mail to the addresses set forth under each Party’s name on the signature page to this Agreement.
2.4 Entire Agreement. This Agreement, between the Parties, supersedes any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No amendment may be made to this Agreement other than in writing signed by both Parties.
2.5 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.