Reseller's Agreement
1. APPROVED PURCHASES AND SALES
a. IOB distributes high-end haircare products (the “Products”) under the Innersense brand exclusively through authorized resellers who operate salons, spas, resorts or approved retail businesses. Unless otherwise approved by IOB, Reseller agrees to purchase the Products solely from IOB or its authorized distributors for its own account and carry and sell the Products solely in the physical location(s) (“Approved Retail Location “) and online locations (” Approved Website”) identified on Appendix A (“Approved Retail Sites”) which Reseller shall own, operate and control. Reseller shall notify IOB in writing of changes to the Approved Retail Location or Approved Website including closure, relocation and/or new store openings at least thirty (30) days in advance of such event.
b. Products shall only be used to perform services at the physical Approved Retail Location or sold to end users for
personal or professional use only from the Approved Retail Location or Approved Website, and shall not be sold to any customer, reseller or
other third party for resale.
c. Reseller shall not dilute, adulterate, refill, tamper, add to, repackage or alter in any manner whatsoever any Product. Reseller agrees not to alter, deface, cover up, mark, remove from, affix anything (other than a price sticker) to any Product or in any other way change any package or container containing any Product, or remove any code, character, identifying number, or other distinguishing number or identification mark that is applied to the Products without the written authorization of IOB.
d. Reseller may not make any claims, representations, guarantees or warranties unauthorized by IOB or inconsistent with, or additional to, any claims, representations, guarantees, warranties, or other information provided by IOB in its commercially distributed or published statements regarding its Products. Reseller is solely responsible for all representations or omissions made by Reseller not expressly authorized by IOB, including, but not limited to, any representation about Product warranties, features, or performance.
e. The minimum opening order is $250. Nothing in this Agreement obligates Reseller to purchase Products, or Innersense to sell Products to Reseller. IOB’s Invoice for each order shall contain additional binding terms and conditions. The prices offered to Reseller for the Products shall be established by IOB from time to time, at IOB’s discretion.
2. ANTI-DIVERSION POLICY
To protect IOB, its resellers and customers and to uphold the high quality and integrity of Products, it is IOB’s policy that all sale and/or distribution of Products not expressly permitted by this Agreement is considered diversion.
a. Reseller shall not engage directly or indirectly in diversion of any Product. “Diversion” includes, but is not limited to, (i) selling or causing the sale of any Product to any person or business that is not an end-user consumer who is buying a reasonable quantity of Products for personal or family use; (ii) selling or causing the sale of any Product to an unauthorized reseller, collector or retail
outlet; and (iii) except from the Approved Website, selling any Product via the Internet or through any unauthorized channel of trade.
b. Reseller shall not knowingly engage in, cause or permit the diversion of any Product, shall not allow any distribution or sale under circumstances which would lead a reasonable person to suspect diversion and shall take any and all commercially reasonable actions to prevent or stop any Product diversion. Reseller shall not sell or transfer any Products to any person or entity which it
has reason to believe will engage in diversion of Products.
c. Reseller shall be responsible for all damages and injury caused by all Products sold by or to it that are diverted with its knowledge or consent, or under circumstances which would lead a reasonable person to suspect diversion.
d. Reseller shall report to IOB any information it knows about any person or business, including any other reseller, which suggests there has been diversion of any of the Products.
3. INTELLECTUAL PROPERTY
a. IOB owns all trademarks, trade dress, designs, graphics, copyrights, patents, and other intellectual property and product names used in connection with the Products (“IP”). During the term of this Agreement and subject to it, IOB grants Reseller a non-transferable, non-exclusive, and personal license to use the IOB IP to sell the Products. Reseller shall not alter the IOB IP in any manner. Reseller’s use shall be in accordance with IOB’s then-current IP usage guidelines, which is subject to change from time to time.
b. IOB IP may only be used for promotion of Products and not to imply IOB’s endorsement of Reseller’s business and/or services. Upon termination or expiration of this Agreement, Reseller agrees to immediately cease all display, advertising and use of any and all IOB IP, unless otherwise authorized in writing by IOB. Reseller may not use or register IOB IP as part of any tradename. internet
address or social media site.
c. Reseller agrees that a violation or threatened violation of the license under this Agreement may cause irreparable injury to IOB for which injunctive relief is be appropriate in addition to all other legal remedies.
4. MERCHANDISING AND TRAINING
a. Merchandising. Products shall be given prominent merchandising position, without intermingling of other brands within the display area. All IOB sales materials and assets shall be solely used for marketing the Products.
b. Training. IOB offers various in-person and/or virtual training options. Reseller’s assigned Account Manager is available to provide assistance with onboarding, product knowledge and ongoing training.
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5. TERM AND TERMINATION
a. Either Party may terminate this Agreement for any reason, with or without cause, at any time upon written notice of termination to the other Party, without waiver of any rights it may have against the other. Termination shall not relieve either Party of any liability or obligation under this Agreement that has accrued and remains to be performed provided that any pending Product orders shall be
cancelled, and all amounts owed by Reseller to IOB shall become immediately due and payable without set off.
b. Immediately upon notice of termination of this Agreement for any reason, (i) the license to use IOB IP shall terminate and Reseller shall cease to be, or represent itself as, an authorized IOB reseller, and shall immediately cease the advertising and sale of Products; (ii) Reseller shall not act in any way to damage the reputation or goodwill of IOB or any of its Products; (iii) Reseller will promptly advise IOB of its Product inventory. Within fifteen (15) days of the date of receipt of such inventory list, IOB may elect to purchase or cause to be purchased all Products IOB may select, or IOB may allow Reseller to sell merchantable Products for an additional commercially reasonable period of time; (iv) Reseller shall promptly deliver to IOB such records, educational tools, and other writings
relating to Products and their resale in any format, whether paper or electronic, as requested by IOB and shall thereafter keep same in the strictest secrecy and shall not make any use thereof, directly or indirectly; and (v) Reseller shall cooperate in transferring any inventory or other materials and information to any designee of IOB.
6. LEGAL COMPLIANCE
Reseller will comply with all laws applicable to the operation of its business including laws regarding privacy rights of consumers and data collection through the Approved Website or otherwise.
7. MAP POLICY
Reseller acknowledges receipt of a copy IOB’s Minimum Advertised Price Policy. Nothing in this Agreement shall constitute or be construed as Reseller’s agreement or consent to such Policy.
8. BOOKS AND RECORDS
Reseller shall keep complete books, records and data of persons and entities purchasing or receiving Products from Reseller.
9. GENERAL TERMS
a. No Agency. No fee was paid by Reseller for the right to sell the Products. Nothing in this Agreement places the Parties in the relationship of employer-employee, principal-agent, joint venturers, or franchisor-franchisee. Neither Party shall have any responsibility or liability of any kind to any subcontractors or third parties providing services to or for the benefit of the other Party. Each Party shall be free to manage and control its business without the management, control, or assistance of the other Party, except for the requirements of this Agreement. Neither Party will have, nor represent itself to have, any authority to bind the other Party or act on its behalf.
b. Waiver. A failure of a Party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of a future breach of the same term or condition, or of the enforceability of any other term or condition of this Agreement, or breach thereof, or default thereunder.
c. Entire Agreement. This Agreement includes its Appendices and exhibits, and any Invoices and incorporated Terms and Conditions for products transmitted by IOB, and constitutes the entire agreement between the Parties concerning the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, understandings, offers and communications, whether written, oral, or otherwise between the Parties. Unless otherwise specified in this Agreement, the Agreement shall not be modified except by
mutual written agreement signed by the authorized representatives of Reseller and IOB. The terms and conditions of this Agreement shall control over any contrary or conflicting term or condition.
d. Governing Law and Disputes This Agreement is governed by California law, exclusive of its choice of law rules. Exclusive jurisdiction for any controversy or claim arising out of or relating to this Agreement, or to interpret or enforce this Agreement or any term thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be in an arbitration conducted
by JAMS, Inc. in Contra Costa County, California, under the Federal Arbitration Act and the provisions of Cal. Civ. Pro. Section 1283.05 are incorporated herein for application in such arbitration. All proceedings and records and filings in connection therewith shall be confidential and not disclosed by either Party without notice and consent of the other Party. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT BY CHECKING THE BOX, THEY ARE IRREVOCABLY GIVING UP THE RIGHT TO A JURY TRIAL AND TO A TRIAL IN A COURT OF LAW.