This Authorized Reseller Agreement (“Agreement”) is by and between Catalina Snacks, Inc. dba Catalina Crunch® (“Catalina Crunch”) and the reseller listed above (“Reseller”).  Catalina Crunch is the maker of healthy and delicious snack foods.  Reseller desires to sell Catalina Crunch 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 Catalina Crunch and its authorized distributors and shall resell Products only to the end consumer.  Reseller shall not during the term of this Agreement contact Catalina Crunch’s 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 Catalina Crunch’s Minimum Advertised Price Policy (“MAP”) established by Catalina Crunch unilaterally from time to time. The MAP Policy is subject to amendment or modification at any time by Catalina Crunch 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 CATALINA CRUNCH 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 Catalina Crunch 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 Catalina Crunch. Reseller shall have no right, power or authority in any way to bind Catalina Crunch to any contract or obligation, express or implied.

(vi)        Reseller understands that Catalina Crunch intends to hold Reseller liable for all legal liability Reseller may owe to Catalina Crunch for damages caused to Catalina Crunch due to product diversion resulting from the sale of the Product to Reseller under the Authorized Distributor Agreement. It is Catalina Crunch’s 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 Catalina Crunch 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 Catalina Crunch for reasonable damages for any violation of this Section 1(a)(v), and also to reimburse Catalina Crunch for the repurchase of Product by Catalina Crunch 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 Catalina Crunch 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 Catalina Crunch 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 Catalina Crunch brand, including but not limited to Friends-and-Family, Gift-with-Purchase, or Purchase-with-Purchase promotions, without prior written authorization from Catalina Crunch.

(xi)           Reseller may not show or display discontinued or prior-season Catalina Crunch merchandise at any time, unless authorized in writing by Catalina Crunch.  Reseller’s ability to participate in or advertise any Catalina Crunch promotional “discontinued event” shall be as determined by Catalina Crunch, 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 Catalina Crunch Branded Keywords. Reseller may not bid higher than position two. 

(b) Reports:  Reseller will provide to Catalina Crunch 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 Catalina Crunch 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 Catalina Crunch. Canadian Resellers may not ship to any consumer or shipping location located outside of Canada except as authorized in writing by Catalina Crunch.  Catalina Crunch will not ship to post office boxes.  Reseller must pay the processing fee charged by Catalina Crunch for EDI drop ship orders.  Reseller shall provide Catalina Crunch access to customer information where the Reseller drop ships in accordance with the Reseller’s privacy policy.  Reseller must permit Catalina Crunch to place generic brand marketing material in boxes to be drop shipped.

2. Proprietary Rights

(a) Brand Guidelines: Reseller shall abide by Catalina Crunch's Brand Book as provided by Catalina Crunch to Reseller from time to time.   

Without limiting the generality of the foregoing, Reseller agrees that:

(i)             Only photos provided by Catalina Crunch (“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 Catalina Crunch 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 Catalina Crunch products to consumers.

(b) Use of Marks: During the term of the Agreement only, Catalina Crunch grants Reseller a non-exclusive, non-transferable, non-sublicensable license to use Catalina Crunch’s logos, trademarks, and trade names, including any special “Authorized Reseller” logo that Catalina Crunch may develop (the “Marks”): (i) in connection with promotional materials provided by Catalina Crunch 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 Catalina Crunch in monitoring Reseller’s use of the Marks and agrees to supply Catalina Crunch 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 Catalina Crunch trademarks, including but not limited to CATALINA CRUNCH 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 Catalina Crunch.

(c) Confidentiality: Catalina Crunch 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: Catalina Crunch 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,  Catalina Crunch, 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  Catalina Crunch shall be contingent on Reseller’s shipment of the Product (at Reseller’s expense) to Catalina Crunch’s designated location in the Territory, and on verification by Catalina Crunch 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)          Catalina Crunch warrants Product in accordance with Catalina Crunch’s standard Product warranty issued from time to time by Catalina Crunch (the “Product Warranty”). Catalina Crunch 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 Catalina Crunch, 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), CATALINA CRUNCH 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 CATALINA CRUNCH, ITS AFFILIATES, OR ANY OTHER ENTITY IN THE CATALINA CRUNCH GROUP OF COMPANIES, 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 CATALINA CRUNCH, 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 CATALINA CRUNCH 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 Catalina Crunch, its affiliates, and any and all other entities in the Catalina Crunch 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 Indiana 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 Indiana, 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 Catalina Crunch’s 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 Catalina Crunch, 6101 North Keystone, Suite 100 #1104, Indianapolis, Indiana 46220, for notices sent to Catalina Crunch, 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. 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.

Catalina Crunch 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 Catalina Crunch’s right to do business with whomever Catalina Crunch chooses. Catalina Crunch will exercise that right whenever Catalina Crunch determines that the integrity of the Catalina Crunch brand has been or may be compromised and, in that spirit, Catalina Crunch will administer this policy as it sees fit. Catalina Crunch’s decision with respect to a noncompliant Reseller will be made solely by Catalina Crunch’s management, without any prior discussion or consultation with the noncompliant Reseller.