Wholesale Terms of Service
U.S. Distribution Agreement
This distributor agreement ("Agreement") is made and effective on the date noted on ThumbPRO wholesale file signed by retailer by and between Thumb-PER, INC dba ThumbPRO, a Massachusetts corporation with a principal place of business at 34 Main Street Concord, Massachusetts ("Company") and the ("Distributor"); , each individually may be referred to as the “Party”, and collectively the “Parties”.
WHEREAS, Company is engaged in the design, manufacture, and supply of premium thumb guards for baseball and softball players; and WHEREAS, Distributor desires to purchase a specific number of such thumb guards from Company for resale under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:
1. Definitions
As used herein, the following terms shall have the meanings set forth below:
- a. "Products": shall mean the following Company products to be sold by Distributor: All products as referred to in invoice.
- b. "Territory": shall mean the following described geographic areas and/or particular accounts: All areas and accounts as referred to in "Attachment 1: Territory" incorporated herein by reference.
- c. "Other Terms and Conditions": shall mean all terms, conditions, limitations, and modifications as described in "Attachment 2: Other Terms and Conditions" incorporated herein by reference.
2. Appointment
- a. Company hereby appoints Distributor as a distributor for the Products in the Territory. Distributor's sole authority shall be to solicit orders for the Products in the Territory in accordance with the terms of this Agreement. Distributor shall not have the authority to make any commitments whatsoever on behalf of Company.
3. General Duties
- a. Distributor shall use its best efforts to promote the Products and maximize the sale of the Products in the Territory. Distributor shall also provide reasonable promotional activities with respect to the Products. Distributor shall also provide reasonable "after sale" support to Product purchasers and generally perform such sales-related activities as are reasonable to promote the Products and the goodwill of the Company in the Territory. Distributor shall neither advertise the Products outside the Territory nor solicit sales from purchasers located outside the Territory without the prior written consent of Company. Distributor's task is to solicit orders from all potential customers in the Territory.
4. Reserved Rights
- a. Company reserves the right to exhibit, advertise, market, attend trade shows, and solicit orders directly from and sell directly to any end-users or other retail buyers within the Territory. Company further reserves the right to enter into any agreements, partnerships, associations, joint ventures, OEM contracts, or other business relationships with manufacturers, suppliers, or other parties.
5. Parties Relationship
- a. Distributor is an independent contractor, and nothing contained in this Agreement shall be construed to (1) give either party the power to direct and control the day-to-day activities of the other; (2) constitute the parties as partners, joint venturers, co-owners, or otherwise; or (3) allow Distributor to create or assume any obligation on behalf of Company for any purpose. Distributor is not an employee of Company and is not entitled to any employee benefits. Distributor shall be responsible for paying all income taxes and other taxes charged to Distributor on amounts earned hereunder. All financial and other obligations associated with Distributor's business are the sole responsibility of Distributor.
6. Indemnification
- a. Distributor shall indemnify and hold Company free and harmless from any and all claims, damages, or lawsuits (including attorneys' fees) arising out of intentional or negligent acts or omissions by Distributor, its employees or agents.
- b. Company shall indemnify and hold Distributor free and harmless for any and all claims, damages, or lawsuits arising out of defects in the Products caused by Company.
- c. Company may defend any claim, suit, or proceeding brought against the Distributor so far as it is based on a claim that the use or transfer of any Products delivered hereunder constitutes an infringement of a patent, trademark, or copyright registered in the United States, so long as Company is notified promptly in writing by the Distributor of any such action and given full authority, information, and assistance at Company’s expense for the defense of any such claim or proceedings. Company shall pay all damages and costs awarded against the Distributor but shall not be responsible for any settlement made without its consent. In the event of final judgment which prohibits the Distributor or the Distributor's customers from continued use of any Products by reason of infringement of such patent, trademark, or copyright, Company may, at its sole option and at its expense, obtain the rights to continued use of any such Product, replace or modify such Product so that it is no longer infringing.
- d. Company shall have no liability to the Distributor under any provisions of this Section 7 if any patent, trademark, or copyright infringement or claim thereof is based upon the use of Products delivered hereunder in connection or in combination with equipment or devices not delivered by Company or use of any such Product in a manner for which the same was not designed.
7. Purchases and Sale of Product
- a. Company agrees to sell to Distributor and Distributor agrees to purchase from Company the Products subject to the terms and conditions as referred to in "Attachment 3: Terms and Conditions of Sale of Products" incorporated herein by reference.
- b. All orders for the Products shall be submitted to Company in writing by email or mail (regular postal mail and other delivery services are acceptable). All orders received shall be confirmed by email sent from Company.
- c. Distributor shall promptly submit to Company, for Company's attention and handling, all inquiries received by Distributor from customers outside the Territory. All inquiries shall be submitted to Company by email within five (5) business days.
8. Product Warranty
- a. Any warranty for the Products shall run directly from Distributor to the purchaser of the Products. Pursuant to any such warranty, the purchaser shall contact Distributor directly to make arrangements for repair, return, or replacement of any allegedly defective Products. Distributor shall have sole authority to deal with customers regarding any such warrantable repairs, returns, or replacement. Upon receipt of any such warrantable products, Distributor shall separately contact Company to arrange for return or credit for these defective products. The decision for determination of defect and replacement or credit for these products shall be solely at the Company's discretion.
- b. NOTE: The Products are provided to Distributor on an "as is" basis. Company specifically disclaims any maintenance, warranty, or support obligations on the existing Products.
9. Product Availability
- a. Company shall use its best efforts in filling orders submitted by Distributor in a reasonable and timely fashion. Company shall immediately notify Distributor of any known or anticipated delays in filling new or previously entered orders and the estimated duration of any delays. Under no circumstances shall Company be responsible to Distributor or anyone else for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to strike, accident, labor trouble, acts of nature, freight embargo, war, civil disturbance, vendor problems, or any cause beyond Company's reasonable control.
10. Additional Responsibilities of Distributor
- a. Distributor shall bear the entire cost and expense of conducting its business in accordance with the terms of this Agreement.
- b. Distributor shall provide itself with, and be solely responsible for, (1) such facilities, employees, and business organization, and (2) such permits, licenses, and other forms of clearance from governmental or regulatory agencies, if any, as are necessary for the conduct of Distributor's business operations in accordance with this Agreement.
- c. Distributor shall, at its own expense, vigorously promote the sale of and stimulate demand for the Products within the Territory. In no event shall Distributor make any representation, guarantee, or warranty concerning the Products except as expressly authorized by Company.
- d. Distributor shall diligently assist customers' personnel in using the Products and shall perform such additional customer services as good salesmanship requires and as Company may reasonably request.
- e. Distributor shall promptly advise Company of any changes in Distributor's status, organization, personnel, and similar matters; any changes in the key personnel, organization, and status of any major customers of Company in the Territory; and any political, financial, legislative, industrial, or other events in the Territory that could affect the mutual business interests of Distributor and Company, whether harmful or beneficial.
- f. Distributor shall maintain and make available to Company accurate books, records, and accounts relating to the business of Distributor with respect to the Products. Distributor shall also maintain a record of any customer complaints regarding either the Products or Company and immediately forward to Company the information regarding those complaints.
- g. The Distributor agrees not to attempt to reverse engineer, disassemble, or replicate the Company’s Products. The Distributor should not alter, modify, or repackage the Company’s products without prior approval. Distributor shall not disparage Company or Company’s Product.
11. Additional Obligations of Company
- a. Company may provide Distributor with information concerning the Products. Distributor shall be responsible for translating these materials to other languages, the costs related to translation and printing of the translated materials as a cost of doing business.
- b. Company may inform Distributor of any new product developments that are competitive with the Products and other market information and competitive information as discovered from time to time.
12. Trademark and Tradenames
- a. During the term of this Agreement, Distributor shall have the right to indicate to the public that it is an authorized Distributor of Company's Products and to advertise within the Territory such Products under the trademarks, service marks, and trade names that Company may adopt from time to time ("Company's Trademarks"). Nothing herein shall grant Distributor any right, title, or interest in Company's Trademarks. At no time during the term of this Agreement or at any time thereafter shall Distributor challenge or assist others in challenging Company's Trademarks or the registration thereof or attempt to register any trademarks, service marks, or trade name confusingly similar to those of Company. Company indemnifies Distributor for all use of Company's Trademarks.
- b. All presentations of Company's Trademarks that Distributor intends to use shall first be submitted to Company for written approval (which shall not be unreasonably withheld) of design, color, and other details or shall be exact copies of those used by Company.
13. Term
- a. This Agreement shall commence on the date first written above and shall continue until the Parties obligations are completed. Provisions 3, 7, 9, 11, 13, 17, 18, shall outlast the completion or termination of this Agreement.
14. Termination
- a. If either party defaults in the performance of any material obligation in this Agreement, then the non-defaulting party may give written notice to the defaulting party and if the default is not cured within thirty (30) days following such notice, the Agreement will be terminated.
- b. Either party shall have the option to terminate this Agreement without notice, (1) upon the institution of actions against the other party for insolvency, receivership or bankruptcy, or any other proceedings for the settlement of other party's debts, (2) upon other party's making an assignment for the benefit of creditors, or (3) upon initiation of dissolution proceedings against the other party.
- c. All of Company's trademarks, trade names, patents, copyrights, designs, drawings, formula, or other data, photographs, demonstrators, literature, and sales aids of every kind shall remain the property of Company. Within thirty (30) days after termination of this Agreement, Distributor shall return all such materials to Company at Distributor's expense. Distributor shall not make or retain copies of any materials or confidential items that may have been entrusted to it. Effective upon the termination of this Agreement, Distributor shall cease and destroy or return to use all trademarks, service marks, and trade names of Company, which shall be evidenced in writing by Distributor.
15. Limitation on Liability
- a. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES OR INJURY RESULTING FROM ANY PRODUCT OR PART OF THIS AGREEMENT WHICH ARE NOT RELATED TO OR THE DIRECT RESULT OF A PARTY’S NEGLIGENCE OR BREACH. In the event of termination by either party in accordance with any provisions of this agreement, neither party shall be liable to the other, because of termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investment, leases or commitments in connection with the business or goodwill of Company or Distributor. Company's sole liability under the terms of this Agreement shall be for any unpaid commissions if applicable.
16. Export Law
- a. Distributor acknowledges and agrees that the Products may be subject to export restrictions and controls. Distributor agrees and certifies that neither the Products nor any component thereof is being or will be acquired, shipped, transferred, exported or re-exported, directly or indirectly, into any country prohibited by export restrictions and controls. Distributor bears all responsibility for export law compliance. Without limiting the generality of the foregoing obligation, Distributor hereby expressly agrees that, without the prior written authorization of Company and the United States Government, Distributor will not, and will cause its representatives to agree not to, export, re-export, divert or transfer any Product to any destination, company or person prohibited by the Export Administration Regulations or other export control laws and regulations. Distributor shall make its records available to Company at Company's request, in order to permit Company to confirm Distributor's compliance with its obligations as set forth in this Section 17. Distributor will indemnify Company against all claims based on Distributor's exporting the product.
17. Confidentiality
- a. Distributor acknowledges that by reason of its relationship to Company hereunder it will have access to certain information and materials concerning Company's business plans, customers, technology, and products that is confidential and of substantial value to Company, which value would be impaired if such information were disclosed to third parties. Distributor agrees that it shall not disclose to any third party, any such confidential information revealed to it by Company. Without other notice, Distributor shall treat all information as confidential in nature. Upon specific request, Company may advise Distributor whether or not it considers any particular information or materials to be confidential. Distributor shall not publish any technical description of the Products beyond the description published by Company. In the event of termination of this Agreement, there shall be no use or disclosure by Distributor of any confidential information of Company, and Distributor shall not manufacture or have manufactured any devices, components or assemblies utilizing Company's patents, inventions, copyrights, know-how or trade secrets.
18. Notice
-
a. All notices required or permitted by this agreement shall be deemed given if sent by certified mail, postage prepaid, return receipt requested or by recognized overnight delivery service. Notices shall be made as follows:
-
i. If to Company:
- Attn: Nina Nickles
- Thumb-PER, Inc.
- 34 Main Street, #335
- Concord, MA 01742
- sales@baseballthumbguard.com
-
781-734-6740 (voice and text)
-
i. If to Company:
19. Assignment
- a. Neither party shall have the right to assign its interest in this Agreement to any other party, unless the prior written consent of the other party is obtained. However, Company may assign its rights and duties hereunder in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of the party without obtaining prior written consent. This Agreement shall be binding upon and inure to any successors or assigns of the parties.
20. Attorney’s Fees
- a. Should any action be brought by either party to enforce the provisions of this Agreement, the prevailing party, whether by settlement, adjudication, or arbitration, shall have the right to collect reasonable attorneys' fees, expenses, and costs from the non-prevailing party. The Parties acknowledge that Agreement shall not be negatively construed against the drafting party and that each Party has been given a reasonable opportunity to seek review of the Terms herein by counsel, prior to execution.
21. Governing Law and Jurisdiction
- a. This Agreement shall be governed by and construed according to the laws of the State of Massachusetts. Jurisdiction shall be proper in Middlesex County, State of Massachusetts, if in state court, or the District of Massachusetts, if in federal court. If the parties agree to alternate dispute resolution (ADR), such ADR will be held in Massachusetts, and be governed by the rules and procedures of the American Arbitration Association by a single arbitrator to be selected by two separate arbitrators who shall be independent selected by Company and Distributor respectively.
22. Waiver
- a. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
23. Severability
- a. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If any court or body of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited. However, the invalidity or limitation of any such provision shall not affect the validity of the remaining provisions.
24. Section Headings
- a. The section headings used in this Agreement are inserted for the purpose of convenience only and shall not be construed to limit or extend any provision hereof.
25. Attachment
- a. Attachment 1, 2, and 3 are expressly incorporated into and made part of this Agreement.
26. Entire Agreement
- a. This Agreement, together with any attached schedules or addendums, constitute the entire agreement between Company and Distributor and supersedes all prior agreements or understandings with respect to the subject matters contained herein. This Agreement shall not be amended, altered, or changed except by a written agreement signed by both parties.
27. Legal Binding Agreement
This U.S. Distribution Agreement is legally binding when the user clicks "I Agree" on the cart page prior to placing an order. By doing so, the user confirms their acceptance of all terms and conditions outlined in this Agreement.