PACIFIC PLAY TENTS®
AUTHORIZED RESELLER
AGREEMENT
This
Authorized Reseller Agreement (“Agreement”) is by and between Pacific Play
Tents, Inc. (“Pacific Play Tents”) and the reseller listed above
(“Reseller”). Pacific Play Tents sells high value camping and outdoor gear. Reseller desires to sell Pacific Play Tents
products (“Products”) as an Authorized Reseller. As an Authorized Reseller, Reseller agrees to
the following:
1.
Marketing and Sales, Reporting and Shipping
(a) Marketing and Sale of Products:
(i) Reseller
shall use its best efforts to promote Products.
Reseller shall purchase Products only from Pacific Play Tents and its
authorized distributors and shall resell Products only to the end
consumer. Reseller shall not during the
term of this Agreement contact Pacific Play Tents’ suppliers, or any third
party, for the purpose of manufacturing or obtaining any product similar to the
Product.
(ii) Reseller
shall advertise the Product for a price that is within the Pacific Play Tents’
Minimum Advertised Price Policy (“MAP”) established by Pacific Play Tents unilaterally
from time to time. The MAP Policy is subject to amendment or modification
at any time by Pacific Play Tents unilaterally and in its sole
discretion. A copy of the MAP Policy is attached hereto.
(iii) RESELLER
SHALL NOT PROMOTE, MARKET, ADVERTISE, OFFER TO SELL OR SELL ANY PRODUCT ON OR
THROUGH ANY ONLINE MARKETPLACE OR AUCTION SERVICE (E.G., EBAY, AMAZON
MARKETPLACE, FACEBOOK, INSTAGRAM, OR LIKE WEBSITES). RESELLER MAY SELL PACIFIC PLAY
TENTS PRODUCTS ON ITS OWN WEBSITE.
(iv) Reseller’s
website must have a secure transaction form using encrypted-data streams or
secure encryption technology, and must be PCI compliant, and a high standard of
transaction security should be maintained, including technology advances that
become available. Reseller should employ dedicated personnel in-house or a Web
agency that provides dedicated personnel. Reseller’s website must post and
enforce a privacy policy compliant with applicable federal, state and local
laws and regulations including without limitation, ADA Website Accessibility
guidelines (WCAG most current version) and
COPPA compliance, if applicable. Reseller’s website must have an up to
date privacy policy and dedicated personnel to handle customer concerns or
inquiries, including without limitation, a customer’s ability to opt-out of any
retention of the customer’s personal information.
(v) Reseller shall observe all directions and instructions given
to it by Pacific Play Tents in relation to the promotion and
advertisement of the Product. Reseller shall not make any written statement as
to the quality or manufacture of the Product or make any promises or guarantees
with reference to the Product other than those expressly set forth in
promotional material supplied by Pacific Play Tents. Reseller shall have
no right, power or authority in any way to bind Pacific Play Tents to any
contract or obligation, express or implied.
(vi) Reseller
understands that Pacific Play Tents intends to hold Reseller liable
for all legal liability Reseller may owe to Pacific Play Tents for damages
caused to Pacific Play Tents due to product diversion resulting from the
sale of the Product to Reseller under the Authorized Distributor
Agreement. It is Pacific Play Tents’ policy that no Product shall be sold
by any reseller to any person or entity that may resell the Product, whether by
retail, mail, Internet, swap meet, flea market, or other commercial means or in
violation of U.S. laws, rules or regulations, including the U.S. Export
Administration Regulations (the “Anti-Diversion Policy”). Reseller shall not
sell any Product to any person or entity that Reseller has reason to believe
has the intention of reselling the goods, exporting them, or otherwise acting
in violation of the Anti-Diversion Policy. Reseller shall institute reasonable
and appropriate procedures and security measures, which Pacific Play Tents may
periodically review, to prevent diversion of Product and fulfill its
obligations set forth in this Section 1(a)(v). Reseller shall make reasonable
efforts to identify violations or potential violations of the Anti-Diversion
Policy. Reseller shall make reasonable efforts to educate the customers to
which it sells the Product regarding the Anti-Diversion Policy. Reseller agrees
to ensure that customers to whom it sells Product do not directly or indirectly
advertise or solicit sales or sell the Product via mail or on the Internet.
Reseller agrees to compensate Pacific Play Tents for reasonable damages
for any violation of this Section 1(a)(v), and also to reimburse Pacific
Play Tents for the repurchase of Product by Pacific Play Tents from
any other entity to which or through which Reseller or its customers have
diverted the Product in violation of the Anti-Diversion policy.
(vii) In
connection with Reseller’s activities under this Agreement and the Authorized
Distributor Agreement, Reseller shall comply with: (1) all applicable laws,
rules, and regulations, (2) all terms and conditions of the Authorized
Distributor Agreement, and (3) appropriate ethical standards.
(viii) Reseller
may not use any of the following or similar words/terms in advertising of any
kind, in the Reseller’s URL name, or in any purchased key word(s), link or
affiliate listing containing the Pacific Play Tents brand name: Discount, Blow Out, Warehouse, Outlet, Sale,
Low Price, Deal, Coupon, Free, % Off,
Bargain, Cheap, Discontinued, Special, and Special Value.
(ix)
Reseller may not bid on new Pacific Play Tents related
keywords or use new collections ad copy. Reseller will remove new collections
product from its product feeds that are submitted to Google Merchant Center.
(x) Reseller may not offer any promotion of any
kind connected with the Pacific Play Tents brand, including but not limited to
Friends-and-Family, Gift-with-Purchase, or Purchase-with-Purchase promotions,
without prior written authorization from Pacific Play Tents.
(xi)
Reseller may not show or display discontinued
or prior-season Pacific Play Tents merchandise at any time, unless authorized
in writing by Pacific Play Tents.
Reseller’s ability to participate in or advertise any Pacific Play Tents
promotional “discontinued event” shall be as determined by Pacific Play Tents,
on a case to case basis, from time to time.
(xii) Reseller must enact a “bid to position”
strategy which forbids them from bidding to position one. Within Google
AdWords’ platform, operators are able to set bidding position thresholds for
all Pacific Play Tents Branded Keywords (such as “Pacific Play Tents backpack,”
or “Pacific Play Tents luggage”). Reseller may not bid higher than position
two.
(b) Reports: Reseller will provide to Pacific Play Tents data regarding retail
sell through, inventory, promotional activity during the month, and percentage
of online sales in comparison to in-store sales upon request and any other information Pacific
Play Tents may reasonably require from time to time. Such reports
shall be considered Confidential Information of Reseller and otherwise
protected under Section 2(c) of this Agreement.
(c) Shipping: US Resellers may not ship to any consumer or
shipping location located outside of the 50 states of the United States except
as authorized in writing by Pacific Play Tents. Canadian Resellers may not ship
to any consumer or shipping location located outside of Canada except as
authorized in writing by Pacific Play Tents.
Pacific Play Tents will not ship to post office boxes. Reseller must pay the processing fee charged by Pacific
Play Tents for EDI drop ship orders. Reseller shall provide Pacific Play Tents access to
customer information where the Reseller drop ships in accordance with the Reseller’s privacy policy. Reseller must permit Pacific Play Tents to place
generic brand marketing material in boxes to be drop shipped.
2.
Proprietary Rights
(a) Brand Guidelines: Reseller
shall abide by Pacific Play Tents’ Brand Book as provided by Pacific Play Tents to
Reseller from time to time.
Without limiting the generality of the
foregoing, Reseller agrees that:
(i)
Only photos provided by Pacific Play Tents (“Product Photos”) may be used to display the Product.
Product Photos must retain natural proportions. Reseller shall not edit the
Product Photos in any way, other than sizing.
(ii) Reseller
shall ensure that any data, Product Photos and Product descriptions displayed
by the Reseller: (1) are the most-current versions of such provided by Pacific
Play Tents or the Distributor, and (2) comply with the Brand
Guidelines.
(iii) Whenever
referring to the Product, Reseller must use the full proper Product name as
described in the Brand Guidelines.
(iv) Reseller may not redistribute
or use such images/photography for any purpose other than the Reseller’s own
business to resell Pacific Play Tents products to consumers.
(b) Use of Marks: During the
term of the Agreement only, Pacific Play Tents grants Reseller a
non-exclusive, non-transferable, non-sublicensable license to use Pacific Play
Tents’ logos, trademarks, and trade names, including any
special “Authorized Reseller” logo that Pacific Play Tents may
develop (the “Marks”): (i) in connection with promotional materials
provided by Pacific Play Tents and (ii) on the Product, but only as set
forth on the Product at the time of delivery to Reseller. Reseller agrees
to cooperate with Pacific Play Tents in monitoring Reseller’s use of the
Marks and agrees to supply Pacific Play Tents with specimens of, and
access to, its uses of the Marks upon request. Reseller shall use each
Mark in accordance with the Brand Guidelines and in such manner that it creates
a separate and distinct impression from any other logo, trademark, trade name
or service mark. Reseller may not register any URL using Pacific Play Tents
trademarks, including but not limited to PACIFIC PLAY TENTS or any Product,
collection, or series names or any misspelling variation thereof including
typos or alpha-numerics. Reseller agrees that in its conduct of its business in
connection with the Marks it shall do nothing to bring disrepute to or damage
the goodwill symbolized by such Marks. Reseller agrees that any goodwill arising
from its use of the Marks shall inure to the benefit of and be on behalf of Pacific
Play Tents.
(c) Confidentiality: Pacific
Play Tents and Reseller each agree and undertake that during the term of
this Agreement and thereafter it shall keep confidential and shall not use for
its own purposes, nor without the prior written consent of the other disclose
to any third party, any information of a confidential nature (including,
without limitation, the terms and conditions of the Agreement, and any information
relating to the other party's products, operations, processes, plans or
intentions, product information, know-how, design rights, trade secrets,
wholesale pricing information, and other information of commercial value) which
may become known to a party from the other party (“Confidential Information”),
unless the information (1) is public knowledge or already known to that party
at the time of disclosure or (2) subsequently becomes public knowledge other
than by breach of this Agreement or (3) subsequently comes lawfully into the
possession of that party from a third party. To the extent necessary to
implement the provisions of the Agreement, each party may disclose Confidential
Information to those of its employees as may be reasonably necessary or
desirable, provided that before any such disclosure each Party shall make those
employees aware of its obligations of confidentiality under this Agreement and
shall at all times procure compliance by those employees with them.
3.
Duration of Agreement
(a) Term: This
Agreement shall be effective as of the date Reseller receives approval to
participate in the Authorized Reseller Program and shall continue indefinitely
until terminated pursuant to the Agreement hereof. The Agreement will automatically
terminate upon the termination of the Authorized Distributor Agreement.
(b) Termination
for Convenience: Either party may terminate the Agreement without
cause upon thirty (30) days’ prior written notice to the other party.
(c) Termination
for Breach: Pacific Play Tents may at any time terminate this
Agreement with immediate effect, without notice to Reseller, if Reseller
materially breaches any of the term and conditions of this Agreement. Either
party may terminate this Agreement if the other party materially breaches any
of its terms or conditions and fails to cure such breach within ten (10) days
following receipt of written notice thereof.
(d) Effect of
Termination: Upon termination or expiration of this
Agreement, Pacific Play Tents, at its option, may
repurchase any or all Product then in Reseller’s possession at prices not
greater than the prices paid by Reseller for such Product, provided, however
that any such repurchase of Product by Pacific Play Tents shall
be contingent on Reseller’s shipment of the Product (at Reseller’s
expense) to Pacific Play Tents’ designated location in the Territory, and
on verification by Pacific Play Tents that the Product is in its original
packaging and in new and immediately salable condition. The terms and
conditions of Sections 1(c), 2(c), 3(d), 4(a)(ii), 4(b) and 5 shall survive any
termination or expiration of this Agreement. In addition, in the event of any
expiration of this Agreement or termination of this Agreement pursuant to
Section 3(b), all rights and obligations of the parties hereunder shall survive
with respect to any order for Products accepted by the Distributor prior to
such expiration or termination.
4.
Warranty, Liability and Indemnity
(a) Warranty:
(i)
Pacific Play Tents warrants Product in accordance with Pacific
Play Tents’ standard Product warranty issued from time to time by Pacific
Play Tents (the “Product Warranty”). Pacific Play Tents will
replace any Product that does not comply with the Product Warranty. The
Product Warranty does not cover defects or damage caused to Product by
Distributor, Reseller, or any third party. If it is determined that any defect
in Product is not the fault of Pacific Play Tents, or such defect or damage was
caused by or attributable to Reseller, its customers, Distributor, or any
third party, Reseller agrees to pay all charges associated with each such
replacement, including without limitation all charges for labor, materials and
shipping.
(ii) EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 4(A)(I), PACIFIC PLAY TENTS EXPRESSLY
DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT
OR FITNESS FOR A PARTICULAR PURPOSE. RESELLER’S SOLE REMEDY FOR ANY
NONCONFORMING OR DEFECTIVE PRODUCT OR FOR ANY BREACH OF THE PRODUCT WARRANTY
SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS OF
SUCH PRODUCT.
(b) Liability: IN NO EVENT SHALL PACIFIC PLAY
TENTS, ITS AFFILIATES, OR ANY OTHER ENTITY IN THE PACIFIC PLAY TENTS, OR ANY OF
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO
RESELLER OR ANY OF ITS CUSTOMERS FOR ANY SPECIAL, INDIRECT, RELIANCE,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST
REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
EVEN IF DEVANT, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF. THE
AGGREGATE LIABILITY OF PACIFIC PLAY TENTS, ITS AFFILIATES, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR CLAIMS ARISING UNDER THIS
AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY PACIFIC
PLAY TENTS IN CONNECTION WITH THIS LETTER IN THE THREE (3) MONTHS PRIOR TO THE
EVENT OR CIRCUMSTANCES GIVING RISE TO THE LIABILITY.
(c) Indemnity: Reseller agrees,
at its own cost, to indemnify, defend and hold harmless Pacific Play Tents, its
affiliates, and any and all other entities in the Pacific Play Tents group
of companies, and their respective officers, directors, employees and
agents from and against all actions, proceedings, losses, damages, liabilities,
claims, costs and expenses, including without limitation fines, penalties,
legal and other professional fees and expenses, arising out of or resulting
from acts or omissions or deemed acts or omissions of Reseller, including
without limitation the sale of Product to Reseller’s customers.
5. General
Provisions
(a) Governing
Law; Venue: This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to
the principles of conflicts of law of any jurisdiction. Any claim or
controversy arising out of or related to this Agreement shall be submitted to a
court of applicable jurisdiction in the State of California, and each party
hereby consents to the exclusive jurisdiction and venue of such court.
(b) Assignment;
Sub-distributors: Reseller may not assign its rights, duties or
obligations under this Agreement, in whole or in part, without Pacific Play
Tents’ prior written consent. Any prohibited assignment shall be null and
void. All terms and conditions of this Agreement shall be binding on and inure
to the benefit of the successors and permitted assigns of the parties. Reseller
shall not sell the Product through a sales agent or to a sub-distributor or
reseller.
(c) Notices: Notices
hereunder must be in writing, except as otherwise stipulated herein, and given
to the other party by certified first class mail, postage prepaid and return
receipt requested, or by air courier to the mailing address set forth above for
notices sent to Reseller, or to Pacific Play Tents, 2801 East 12th
Street, Los Angeles, California 90023, for notices sent to Pacific Play Tents,
or to such other address as either party may designate by providing notice
as set forth herein. Notices shall be effective when received.
(d) Entire
Agreement: This Agreement sets forth the entire understanding of the
parties with respect to the matters set forth herein and shall supersede any
prior negotiations or agreements, whether written or oral, with respect
thereto. However, this Agreement does not replace the Pacific Play Tents
Wholesale Account Application and is meant to supplement that agreement. This Agreement may not be amended or waived
except by a written instrument signed by both parties. The waiver by either
party of any right provided under this Agreement shall not constitute a
subsequent or continuing waiver of such right or of any other right under this
Agreement. If any court determines that any provision of this Agreement is
invalid or unenforceable, any invalidity or unenforceability shall affect only
that provision and shall not make any other provision of this Agreement invalid
or unenforceable, and the unenforceable provision shall be modified, amended or
limited only to the extent necessary to render it valid and enforceable.
Pacific Play
Tents reserves the unilateral right to change this Policy at any time, with or
without prior notice. It is the Reseller’s right to determine the manner in
which it conducts its business. At the
same time, it is Pacific Play Tents’ right to do business with whomever Pacific
Play Tents chooses. Pacific Play Tents will exercise that right whenever Pacific
Play Tents determines that the integrity of the Pacific Play Tents brand has
been or may be compromised and, in that spirit, Pacific Play Tents will
administer this policy as it sees fit. Pacific Play Tents’ decision with
respect to a noncompliant Reseller will be made solely by Pacific Play Tents’
management, without any prior discussion or consultation with the noncompliant
Reseller.
This policy
supersedes all previous Online Agreements and/or Distribution Policies entered
into by Reseller. No other Pacific Play Tents employees or
representatives are authorized to interpret or modify any aspect of this
Policy, or the application of this Policy.