NON-EXCLUSIVE DISTRIBUTOR TERMS AND CONDITIONS
WHEREAS, DISTRIBUTOR is a company which sells adult-oriented and novelty products such as those offered for sale by XR, either directly to retail customers or to other third parties through other distribution channels and methods, as applicable.
WHEREAS, XR is a corporation engaged in the business of manufacturing, developing, and selling adult-oriented and novelty products ("Products")
WHEREAS, DISTRIBUTOR desires to purchase quantities of XR’s Products for resale to DISTRIBUTOR’s either directly to retail customers or to other third parties through other distribution channels and methods, as applicable, and XR wishes to sell such Products to DISTRIBUTOR.
WHEREAS, DISTRIBUTOR possesses the resources, expertise, and know-how, as well as the desire, to serve as a non-exclusive distributor for XR’s Products (as defined below);
NOW, THEREFORE, the parties agree to the following Terms and Conditions as follows.
- These terms and conditions between the parties shall consist of this document.
- The term “Products” as hereinafter referenced shall be those XR products which DISTRIBUTOR shall resell to its customers (the term “customers” shall include DISTRIBUTOR’s retail customers and/or other third parties, as applicable).
- Unless otherwise terminated according to these terms and conditions, these terms and conditions shall remain in force until terminated by either party following 90 days written notice of same.
- DISTRIBUTOR hereby represents and warrants that it has the experience, resources and know-how necessary to pursue the responsibilities under these terms and conditions.
- DISTRUBUTOR shall be wholly responsible for all costs of its resale and distribution operations.
- At its own expense and responsibility, the DISTRIBUTOR shall provide all sales, support and warranty coverage for the Products it distributes.
- DISTRIBUTOR shall determine, offer, service and administer, at its sole cost and expense, any (or no) warranty it may elect to provide to its customers, and XR shall have no responsibility or liability under any such DISTRIBUTOR warranty with respect to the Products to either DISTRIBUTOR or DISTRIBUTOR's customers.
- DISTRIBUTOR shall keep reasonable records of all transactions and communications with their customers and other third parties, including correspondence, orders, contracts, purchase orders, shipping documentation, warranty requests, and complaints.
- Each order from DISTRIBUTOR to XR shall be subject to and contingent upon XR’s acceptance and approval of same.
- The relationship between XR and DISTRIBUTOR under this these terms and conditions is solely that of independent entities. The DISTRIBUTOR and its staff are in no way the legal representatives or agents of XR for any purpose, and shall have no power or authority to assume or create, in writing or otherwise, any obligation or responsibility of any kind, expressed or implied, to transact business, to make any warranty or otherwise to act in any manner in the name of or on behalf of XR. These terms and conditions shall not be construed as constituting a partnership, joint venture, or other form of legal association that would impose liability upon one party for the acts or failure to act of the other party.
- DISTRIBUTOR shall be a non-exclusive distributor for XR Products.
- The terms and conditions shall govern and apply to each order, excepting such additional or different terms and conditions as are expressly agreed to in writing by XR and DISTRIBUTOR with regard to a specific order. Any terms or conditions in an order form that are in conflict with these terms and conditions shall be null and void unless agreed to in writing by both parties. No terms or conditions in an order form shall otherwise be construed to amend these terms and conditions.
- THERE ARE NO EXPRESS OR IMPLIED WARRANTIES PROVIDED BY XR TO DISTRIBUTOR AND NO EXPRESS OR IMPLIED WARRANTIES PROVIDED BY XR TO DISTRIBUTOR'S END CUSTOMERS. XR DISCLAIMS AND DISTRIBUTOR WAIVES ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR PARTICULAR PURPOSE. NO AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING SAFETY, SUITABILITY FOR USE, OR THE PERFORMANCE OF PRODUCTS SHALL BE DEEMED TO BE A WARRANTY OR GUARANTY BY XR FOR ANY PURPOSE.
- EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND – INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY – AS A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
- Maximum Aggregate Liability. Independent of, severable from, and to be enforced independently of any other enforceable or unenforceable provision of these terms and conditions, in no event shall XR’s aggregate liability to DISTRIBUTOR (including liability to any person or persons whose claim or claims are based on or derived from a right or rights claimed or claimable against, by or through DISTRIBUTOR), with respect to any and all claims at any and all times arising from or related to the subject matter of the distributorship, in contract, tort, or otherwise, exceed the total amount paid by DISTRIBUTOR to XR within the most recent 6-month period, plus interest computed as of the date of any final judgment against XR.
- Transaction Agreements. DISTRIBUTOR understands and agrees that although these terms and conditions may apply to many transactions; further agreements may also be required based on the unique characteristics of an individual transaction. The terms of these further agreements shall be considered supplemental to the terms of the agreement relative to that individual transaction.
- Assignability. None of DISTRIBUTOR's duties or obligations hereunder shall be assigned by DISTRIBUTOR without the prior written consent of XR.
- Governing Law, Venue and Disputes. These terms and conditions shall be governed by and construed in accordance with the laws of the State of California without reference to the principles or conflicts of laws thereof. In the case of any controversy or claim arising out of or relating to the distributorship, or with respect to a breach thereof, the Parties first shall seek to resolve such matter amicably through discussions between the Parties, then, if necessary, by means of mediation. If the Parties fail to resolve such matter by such amicable discussions or mediation, the matter shall be finally settled by binding arbitration pursuant to the then-current commercial arbitration rules and regulations of the American Arbitration Association. Unless otherwise mutually agreed by the Parties, the arbitration proceeding shall be held in Los Angeles California, and shall be conducted in the English language by a three member arbitration panel. The prevailing party in any dispute under these terms and conditions shall be entitled to reasonable attorney’s fees and costs incurred in the enforcement of these terms and conditions
- Amendments, Modifications and Waiver. These terms and conditions may not be modified, and no provision herein shall be waived, except by a written instrument signed by both parties. No waiver of any term or condition shall be deemed to waive that term or condition on a future occasion or any other term or condition, unless explicitly stated with a written instrument representing the waiver. The illegality or unenforceability of any provision of these terms and conditions shall not affect the validity and enforceability of any legal and enforceable provisions thereof.
- Binding Acceptance/Acknowledgement. These terms and conditions may be executed in any number of counterparts, each of which may be deemed an original and all of which together shall constitute one and the same instrument. Additionally, these terms and conditions shall be construed as having been electronically accepted by, executed by and binding upon the parties upon electronic acceptance and acknowledgement by DISTRIBUTOR of the terms and conditions on a website.
- Confidentiality. Neither party shall directly or indirectly disclose, publish or use for benefit, except in carrying out their duties as set forth in these terms and conditions, any Confidential Information (as defined below), without the prior written consent of the other party. For the purposes of these terms and conditions, “Confidential Information” shall include, but is not limited to, all information, data, contracts, agreements, files, records, documents, specifications, accounts, candidate lists, suppliers, customers, ideas, forms, procedures, techniques, expertise, attorney work-product, resumes, referral slips, phone records, correspondence, memoranda, names, addresses, sites, identities or telephone numbers of any contacts, payments, fees and other similar items relating to the matters that are the subject of the activities of either party or the provisions hereunder, but shall not include any such information which is publicly available or previously developed by or in the possession of as a result of a breach of a third-party's confidentiality obligations. Both parties acknowledge and agree that the Confidential Information provided is unique to its business and that monetary damages for a violation of these terms and conditions may not be an adequate remedy at law. As such, both parties agree that should it violate any terms or provisions of these terms and conditions, in addition to monetary damages, injunctive relief is an appropriate remedy to protect the other parties’ interests.
- Compliance with Laws. DISTRIBUTOR shall comply with all applicable federal, state and local laws, ordinances, rules and regulations in its distribution activities. DISTRIBUTOR shall not sell or advertise any Products in any manner which is not legal under all applicable laws.
- Intellectual Property. Nothing herein contained shall be construed as the transfer from XR to the DISTRIBUTOR of any trade names, trademarks, patents, designs, copyrights and/or any other industrial property rights, whether registered or not, used or embodied in or in connection with the Products, nor shall DISTRIBUTOR attempt or purport to transfer any such rights to its customers except, as required to utilize in the ordinary course the specific Products in which same are embodied.
- General Breach With Right to Cure. Either party hereto shall, upon the other party’s breach, failure to observe, or failure to perform any of the provisions of these terms and conditions (“Default”), provide written notice to the breaching party within thirty (30) days of the Default or discovery of Default. Thereafter, the breaching party shall have thirty (30) days to cure said Default. Should the breaching party fail to cure said Default within the thirty (30) day period, then the noticing party shall have the right to, without prejudice to any other remedies available to such party, immediately terminate these terms and conditions, by written notice to the breaching party.
- Specific Defaults and Events With No Right to Cure. Either party shall have the right to immediately terminate these terms and conditions upon written notice, without liability for indemnification and without prejudice to any other remedies available, in the following instances:
- Inability of a party to pay debts as they become due, insolvency, bankruptcy, corporate reorganization or liquidation or appointment of receiver, liquidator or trustee or any event similar in nature;
- Attachment, sequestration, garnishment or seizure of assets or any event similar in nature;
- Assignment or transfer of all of or a significant part of the other party’s business, or any transfer, pledge, voting trust or disposition of a majority or controlling interest in same, or any important change affecting substantially the ownership, management or control or business operation;
- Suspension or ceasing or threat of suspension or ceasing of its ordinary business operations or any substantial part thereof.
- Indemnification by DISTRIBUTOR. DISTRIBUTOR agrees to hold harmless and defend XR against any claim or demand for damages, losses or costs and any other claim or demand of third parties arising from any personal or property damage, injury, liability, claim or contractual agreement, explicit or implied, between DISTRIBUTOR and its customers or other third parties. DISTRIBUTOR agrees to hold harmless and defend XR against any claim by a third party regarding the omission or commission of any negligent or unlawful act by DISTRIBUTOR or its agents or employees, whether or not such act is within the scope of employment of such agents or employees.
- Notices. All notices or communications hereunder shall be in writing and sent to the following addresses or at such other addresses as the parties may designate from time to time:
Huntington Beach, CA 92649
Attention: Ari Suss