PIECE WATER ™
Before accepting the terms and conditions of this Agreement, it is specifically acknowledged and agreed by the Reseller (You) that the Company (Oceania Labs LLC) retains the exclusive right to sell Company products (“Products”) through Amazon.com, eBay.com, Google.com and other similar non-reseller branded internet commerce websites. Reseller may sell Company Products through their own branded websites and stores. Reseller’s failure to comply with the approved sales channels may result in the Reseller being blocked from further sales on non-reseller branded internet commerce websites. Reseller acknowledges and agrees it will be liable to the Company for any and all damages, costs and expenses incurred by Company as set forth in this Agreement and otherwise.
THIS RESELLER AGREEMENT (“Agreement”) is made and entered effective as of the date the submitted order from a person or entity intending to resell Company Products to retailers and consumers in approved sales channels (“Reseller”) is accepted by the Oceania Labs Group of Companies (“Company”) in accordance with the Company’s approved terms and conditions (“Order”). In this Agreement, the Company and the Reseller may be referred to individually as the “Party” and together as the “Parties”. BACKGROUND: The Company is engaged in the business of manufacturing, selling and distributing various products to a variety of resellers and direct to consumers. WHEREAS, Company desires to appoint Reseller as a non-exclusive reseller of Company’s Products listed in each Order. WHEREAS, Reseller agrees to use its best efforts to promote and sell the Company’s Products. AGREEMENT: NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, and such other further consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows, intending to be legally bound thereby. Appointment. During the term hereof, and subject to the terms and conditions set forth below, Company hereby appoints Reseller as a non-exclusive reseller of the Company’s Products. Reseller hereby accepts the appointment as Company’s reseller of Products set forth in each Order. Reseller recognizes that this appointment is premised on Reseller’s compliance with all the terms and conditions set forth in this Agreement. Promotion of Products. Reseller agrees to use its best efforts to promote and sell the Company’s Products. Reseller Responsibilities. Reseller acknowledges that one of its principal obligations is to fully develop the promotion, marketing, sales and distribution plan of Company’s Products. This obligation shall be performed in a manner satisfactory to Company and Reseller agrees it will: (a) Immediately follow up on direct and referred inquiries from prospective customers; (b) Aggressively promote, market, advertise, and sell Company’s Products; (c) Maintain a place of business and sales staff suitable for handling the sales of Company’s Products; (d) Purchase and carry on hand at all times a representative line of Company’s Products and a sufficient inventory of current Products to meet the reasonable demands of Reseller’s customers; (e) Within five (5) calendar days, refer all warranty claims on Company’s Products to the Company. Reseller shall not make any representations or warranties on Company’s behalf. Reseller agrees to comply with all Company policies and procedures as determined by the Company from time to time. Reseller also agrees to comply with all applicable laws, rules and regulations, codes of practice and requirements of both the United Sates and all other jurisdictions in which Reseller operates. Reseller further agrees to maintain, at its own expense, any necessary licenses, approvals, registrations and authorizations required to promote, market, sell and distribute the Company’s Products. Company Reservations. Nothing in this Agreement shall be construed to limit in any way Reseller’s right to select its own customers within its approved channels of distribution, including its own branded websites, except it is specifically acknowledged and agreed by the Reseller that the Company retains the exclusive right to sell Company Products through Amazon.com, eBay.com, Google.com and other similar, non-reseller branded internet commerce websites. The Company shall have the right to modify the design, specifications and components of any Company Products without notification to the Reseller. Company Responsibilities. Subject to the Company’s right to modify its responsibilities from time to time, the Company agrees it will provide a limited written warranty as follows: Company warrants that Company Products shall be free from defects in material and workmanship for a period of one (1) year after the date of the order. Reseller or its customer must send the defective Product, at Reseller’s or its customer’s expense, along with the proof of purchase to the Company’s address at 2091 Las Palmas Dr. Suite E Carlsbad CA 92011 The Company shall determine if the alleged defective Product is covered under warranty. If the Company determines that coverage exists, the defective Product will be repaired or replaced at the Company’s sole discretion. The Company extends this warranty only to the Reseller or its original customer. This warranty does not apply to product defects due to any causes whatsoever other than Company’s manufacturing, including but not limited to, damage that may occur as a result of abuse, misuse or improper maintenance of Company Products. The above warranty is in lieu of all other warranties, express or implied, including without limitation any implied warranty of merchantability and or fitness for a particular purpose, which are expressly disclaimed by the Company. If the Company is unable to repair or replace the Product, it shall provide a full credit for the purchase price of the defective Product paid by Reseller. No action arising out of a claimed breach of warranty may be brought more than one (1) year after the date of the order. The warranty in the case of each of the Company’s Products shall constitute the full extent of the Company’s liability and no one is authorized to assume for the Company any additional obligations in connection with the sale of the Company’s Products. Prices and Payments. Reseller shall pay for the Company’s Products in accordance with the prices determined by the Company as set forth on the Company’s website or by separate negotiated agreement between the Company and the Reseller. The Company reserves the right at any time to change its Products’ prices. Payment Terms. Reseller shall pay the purchase price, including but not limited to applicable taxes, on the Order as determined by the Company. All payments shall be made to the Company in accordance with the methods determined by the Company. If Reseller shall fail to pay in accordance with the agreed upon terms and conditions, the Company may assess interest on the amount due at the highest allowable rate as permitted by law. Credit Options. The Company, in its sole discretion, may offer an option for Reseller to pay for the Company’s Products on approved credit terms. Upon submission of Reseller’s Order, the Company shall electronically transmit an Order acknowledgement (“Order Acknowledgement”) to Reseller outlining the price of each Product, the anticipated delivery schedule, and the terms and conditions of credit and repayment, if any. Reseller agrees that purchases on credit shall be subject to the assurances of payment and forms of security as required by the Company. This may include the execution of additional documents and agreements required by the Company and any additional terms and conditions related to extending credit and repayment as determined by the Company. Assurances of Payment and Forms of Security. Reseller hereby grants to the Company a security interest in all Company Products and in all proceeds thereof to secure payment of the purchase price and all accrued interest. Reseller shall deliver to the Company executed financing statements and other documents as the Company may deem necessary to effectuate the security interests granted. Reseller authorizes the Company to execute such financing statements and other documents as the Reseller’s attorney-in-fact and to file or record these documents for the purposes of perfecting the Company’s security interest. This Agreement shall, among other things, constitute a security agreement pursuant to the California Uniform Commercial Code. Irrevocable Letter of Credit. At the Company’s option and upon its request, Reseller shall furnish the Company with an irrevocable letter of credit or other written commitment in a form satisfactory to the Company from a financial institution or lender, acceptable to the Company, agreeing to pay the Company the amount due and all accrued interest. Company Agreements. Reseller acknowledges and agrees that it will be required to execute Company agreements and forms, including but not limited to, promissory notes, financing statements, security agreements, irrevocable letters of credit and other documents, deemed necessary by the Company to secure payment. Reseller acknowledges and agrees that it will be responsible for the payment of any and all costs, expenses, fees (including but not limited to attorney fees and court costs incurred by the Company) in preparing the aforementioned agreements and forms and in enforcing the terms and conditions of any such documents. Orders and Deliveries. Reseller agrees to submit Orders in accordance with the manner and format as proscribed by the Company. Any Order which does not comply with the Company’s terms and conditions, listed on the Company’s website at the time of the Order, need not be filled by the Company. Terms and Conditions of Sale. The terms and conditions of sale define the relationship of Company and Reseller and apply to all sales of the Company’s Products by the Company to Reseller. Reseller acknowledges and agrees that these terms and conditions of sale are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Products by the Company to Reseller. Pricing. Prices for Products and other related information shown in any Company Product publication, including, but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by the Company. Taxes. Prices quoted do not include (and Reseller shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Products by the Company with the exception of the Company’s income tax obligations arising out of the sale of the Products. Terms of Payment. Unless otherwise specifically agreed in writing by Seller, the total price is due and payable to the Company, without setoff or other deductions or charges, net 30 days of checking the “ACCEPT” button. Any amounts due by Reseller to the Company that are unpaid on or after 30 days of checking the “ACCEPT” button will bear interest at the rate of ten (10%) percent per annum or the maximum rate permitted by law, whichever is less. The accrual or payment of any interest as provided above will not constitute a waiver by the Company of any rights and remedies in connection with a default by the Reseller. The Reseller will pay all court costs, attorney fees, and other costs incurred by the Company in collecting past-due amounts, including interest. If the shipment or delivery of Products is delayed by or at the request of the Reseller, payment will remain due in full 30 days from the date of checking the “ACCEPT” button. In such event, the Company may impose, and the Reseller shall pay, storage charges and other incidental expenses incurred by the Company as a result of the delay in addition to any interest on late payments as described above. Security Interests. As security for payment of all amounts due to the Company, Reseller grants to the Company a security interest in all Products sold by the Company to the Reseller and all proceeds, and the Company will have all rights of a secured party under the Uniform Commercial Code with respect to the Products. This Agreement shall, among other things, constitute a security agreement pursuant to the California Uniform Commercial Code. The Reseller appoints the Company as its attorney-in-fact with authority, at the Company’s option, to take actions as the Company deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Reseller shall pay all applicable filing fees. The Company reserves, at its option, the right to demand any other forms of security from Reseller prior to agreeing to the terms of payment. Limited Warranty-Disclaimer of Warranties. The warranty obligations of the Company for Products sold by the Company will be limited to the warranty provided only to the Reseller and its original customer. The sole remedy available to Reseller with respect to defects in the Products will be that the defective Product will be repaired or replaced at the Company’s sole discretion. THE COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE PRODUCTS, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. If Products are resold by Reseller, Reseller will include in its agreement for resale provisions that limit recoveries in accordance with the terms and conditions of sale. In the event of Reseller’s failure to include in any agreement for resale the terms providing for warranty limitations, Reseller will indemnify and hold the Company harmless against any liability, loss, cost, damage, or expense (including attorney fees) arising out of or resulting from such failure. IN NO EVENT WILL THE COMPANY BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR EXPENSE OCCASIONED BY THE USE OF DEFECTIVE PRODUCTS. RESELLER ASSUMES FULL RESPONSIBILITY THAT THE PRODUCTS PURCHASED UNDER THE AGREEMENT MEET THE SPECIFICATIONS AND/OR INTENDED USE OF RESELLER, AND THE COMPANY MAKES NO REPRESENTATION WITH RESPECT TO THEM. Delivery. Any delivery dates or other schedule of performance by the Company are approximations, and the sole obligation of the Company with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Products, or otherwise to perform, consistent with the reasonable demands of its business. In any event, the Company will have no liability to Reseller or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Reseller or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of the Company. Title and Risk of Loss. Title to and risk of loss or damage to the Product will pass to Reseller on delivery by the Company free on board (“FOB”) to (a) the Company’s facility, (b) the Company’s supplier’s facility when Products are shipped directly from the manufacturer, or (c) as otherwise specifically indicated in the terms and conditions of sale. Inspection and Acceptance. Reseller will have three (3) days from the date of delivery to inspect the Products for defects and nonconformance and to notify the Company, in writing, of any defects, nonconformance, or rejection of the Products (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be made in writing to the Company no more than seven (7) days after receipt of the shipment. After this period, Reseller will be deemed to have irrevocably accepted the Products, if not previously accepted. After acceptance, Reseller will have no right to reject the Products for any reason or revoke acceptance. Claims for damage due to shipping must be made by Reseller to the freight carrier. Return of Products. All returns will be pursuant to the Company’s instructions. Reseller must contact the Company for prior written return authorization before returning any Products. All returns must reference the written approval of the Company along with the original Order Acknowledgement reference and the reason for the return. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to the Company’s return policies, if any, in effect at the time, including applicable restocking and transportation charges and other conditions of return. If Reseller returns Products without receiving prior written authorization from the Company or without following the Company’s return policies, Reseller shall not be entitled to payment reimbursement for any such returned Products. Cancellation or Termination. In the event of default under the terms and conditions of sale by the Reseller that is not cured within 30 days after notice by the Company, Reseller will pay to the Company on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by any third parties) incurred directly or indirectly by the Company in connection with the terms and conditions of sale, all as reasonably determined by the Company. Changes. The Company reserves the right from time to time to correct any typographical or clerical errors, including errors in mathematical computation, which may exist in the terms and conditions of sale. Technical Support. Unless otherwise specifically provided on the Order Acknowledgement, the terms and conditions of sale do not include any services of the Company in connection with installation, testing, or evaluation of the Products. The Company may, however, consistent with its capabilities and subject to scheduling acceptable to the Company, make available to Reseller, at Reseller’s expense, technical support services relating to the Products at the rates then imposed by the Company, together with any out-of-pocket expenses to the Company in connection with the technical support. The sole remedy of Reseller in connection with any acts or omissions of the Company in the provision of technical support will be the provision of further technical support to Reseller reasonably required to correct the act or omission. Modifications and Waiver-Entire Agreement. Neither party has rights, warranties, nor conditions expressed or implied, statutory or otherwise, other than those contained in the terms and conditions of sale or other agreements entered into between the Company and Reseller. No waiver of any provision of the terms and conditions of sale will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist on strict performance of the terms and conditions of sale will not be construed as a waiver of any term or condition of the terms and conditions of sale. Any document or electronic submission submitted by Reseller to the Company confirming its intention to purchase Products will be deemed to constitute a confirmation and acceptance of the terms and conditions of sale, even if the document states terms in addition to or different from those in the standard terms and conditions of sale. All agreements between the Company and Reseller will be solely under the terms and conditions of sale and except for terms and conditions of the Company in an approved Reseller Agreement and other Company approved agreements, the Company rejects any and all additional or different terms contained in any document submitted to the Company by Reseller. Any execution by the Company of any other document submitted by Reseller in connection with the purchase of Products does not constitute acceptance of or an agreement to any terms and conditions in addition to or different from those contained in the terms and conditions of sale, but will constitute only acknowledgment of receipt of the document. In addition, notwithstanding any terms contained in any documents submitted by Reseller in connection with the purchase of Products, the acceptance of delivery by Reseller of Products described in the terms and conditions will constitute a course of conduct constituting Reseller’s agreement to the terms and conditions of sale, to the exclusion of any additional or different terms and conditions. Compliance with Laws. Reseller will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Products and shall indemnify and hold the Company harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, use or operation of the Products. Export Control. Products supplied by the Company may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all laws and regulations. Notwithstanding any other provision to the contrary, if federal, state, or local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until export authorization is obtained, regardless of any otherwise promised delivery date. If any required export authorization is denied, the Company and Company’s supplier will be relieved of any further obligation relative to the sale and delivery of the Products subject to denial without liability of any kind relative to Reseller or any other party. The Company will not comply with boycott-related requests except to the extent permitted by federal law and then only at the Company’s discretion. Trademarks and Service Marks. Reseller acknowledges that the Company or its affiliated companies are the exclusive owners of various trademarks, service marks, trade designations and trade dress (“Identification”), including but not limited to the names and logos which the Company uses in connection with its business, artwork, products and tooling. Reseller is authorized to use the Identification in a manner acceptable to the Company only in connection with the promotion and sale of the Company’s Products and only until the expiration or termination of this Agreement. Reseller acquires no proprietary rights to Identification and its authorization to use the Identification shall terminate simultaneously with the expiration or termination of this Agreement. Indemnification. Reseller agrees to defend and hold the Company harmless from and to indemnify the Company against any claims, suits, demands and causes of action (including the costs and attorney fees) of any type or kind whatsoever which may be made against the Company by any person, firm or corporation occurring as a result of the Reseller’s performance; Reseller’s breach of its responsibilities under this Agreement; the Reseller’s promotion, marketing, sales and distribution of the Company’s artwork, products and tooling; or the acts or omissions of any of the officers, employees or agents of Reseller. In furtherance of this Indemnification, Reseller shall maintain in full force and effect, a comprehensive general liability insurance policy insuring the Company in the amount of $1,000,000 per occurrence. Neither Party shall be liable for any loss or damages suffered by the other Party arising from the delay or failure to perform its obligations to the extent that such delay or failure results from an event or events beyond the reasonable control of a Party, including but not limited to, acts of government, embargoes, fire, flood, explosions, acts of God, acts of a public enemy, strikes, labor disputes, vandalism, civil rights or commotions, or the inability to obtain necessary raw materials, supplies and equipment. Neither Party shall be responsible for any indirect damage, incidental damage or loss of profits of the other Party. Term and Termination. This Agreement shall take effect on the date the Order is accepted by the Company. This Agreement may be terminated immediately by the Company in the event of the breach of any material responsibility under this Agreement or the violation of any law, rule, and regulation, codes of practice or requirements as set forth in this Agreement. Upon termination of this Agreement, the Company shall have the option, exercisable in writing, to buy-back from the Reseller any unsold inventory of the Company’s Products at the Original Cost to Reseller or at a lesser amount as determined by the Company. “Original Cost’ shall mean the Company’s FOB invoice price to Reseller, plus freight and any taxes paid by Reseller. Confidential Information. It is acknowledged that during the term of this Agreement, Company and Reseller may be exposed to and become privy to confidential or secret information of the other Party. Such confidential information includes, but is not limited to, any information concerning artwork, products and tooling; developments; manufacturing techniques; new product plans; ideas and inventions; designs; processes and methods; costs; procurement plans; pricing; promotions and marketing; sales and distribution strategies; and customers, as well as information related to the management, operation or planning of the Company (“Confidential Information”). Company and Reseller agree to hold and maintain Confidential Information in strictest confidence, shall restrict circulation within its own organization solely on a need-to-know basis, and shall not disclose to a third party or use the Confidential Information without the specific written approval of the Party furnishing such information. The obligations of the Company and the Reseller with respect to restrictions of the use of Confidential Information shall survive the expiration or termination of this Agreement. Relationship of the Parties. The relationship of the Parties to this Agreement is that of a vendor and a vendee and does not create any principal and agent, joint venture, partnership, legal representative, or employer and employee relationship. Neither Party has a right to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party, or to bind the other Party in any manner or thing whatsoever, by written or oral statements or otherwise. Assignment and Subcontracting. This appointment and Agreement is entered into with the understanding that it is personal with the Reseller and its current management. This Agreement may not be assigned or transferred without the prior written consent of the Company. Notices. All notices, requests, demands or other communications required or permitted to be given under this Agreement shall be given in writing and shall be deemed to have been given if delivered to the other party by hand, certified mail, postage prepaid, recognized overnight courier, or verified electronic communication, effective upon the receipt thereof at the physical address or electronic address provided by the other Party. Either Party to this Agreement may by written notice given to the other Party designate an alternative specific address for notices, requests, demands and other communications to such Party. Delay and Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. Entire Agreement. This Agreement constitutes the entire agreement between the parties in respect of the subject matter hereof and supersedes all prior and contemporaneous agreements between such parties in connection with the subject matter hereof. Modifications. This Agreement may be amended, changed and modified only in writing executed by both of the Parties. Severability. If any clause, provision or section of this Agreement, or any covenant, stipulation, obligation, agreement, act or action, or part thereof, made, assumed, entered into or taken under this Agreement is for any reason held to be illegal, invalid or inoperable, such illegality, invalidity or inoperability shall not affect the remainder thereof or any other clause, provision or section, or any other covenant, stipulation, obligation, agreement, act or action or part thereof, made, assumed, entered into or taken thereunder or hereunder. Governing Law and Venue. The validity, interpretation and effect of this Agreement shall be governed by the laws of the State of California, without reference to its conflicts-of-laws principles. Each party hereby irrevocably consents to the jurisdiction of the state and federal courts located in the County of San Diego, State of California as the exclusive forums for the resolution of any dispute arising hereunder. Authority. Reseller represents that it has all requisite authority to agree to the terms and conditions of this Agreement on behalf of its principal and that the terms and conditions are fully enforceable against the principal. Reseller has agreed to the terms and conditions of this Agreement effective as of the date the Order is accepted by the Company.By checking the “ACCEPT” button, Reseller agrees it has read and agrees to be bound by the terms and conditions of this Agreement, the terms and conditions of sale set forth herein and to the assurances of payment and forms of security required by the Company. Reseller also acknowledges and consents to the Company taking necessary action to request Amazon.com, eBay.com, Google.com and other non-reseller branded Internet commerce websites to block the reselling of any and all Company Products in the event of a violation of this Agreement, including but not limited to the reselling of Company’s Products on non-reseller branded internet commerce websites.