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DISTRIBUTION AGREEMENT GENERAL TERMS AND CONDITIONS

  1. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR Company appoints Distributor, and Distributor accepts appointment, as a non-exclusive independent distributor of the products listed on the Company website (the “Products”). Distributor agrees not to knowingly supply or sell Products to any individual or entity for the purpose of resale and understands and agrees that this Agreement may not be transferred or assigned to or operated in partnership with any other person unless express prior written consent is obtained from Company.
  2. RESTRICTIVE COVENANT REGARDING COMPETITIVE PRODUCTS Distributor agrees not to sell or offer for sale during the Term any goods resembling or competitive with the Products.
  3. ETHICAL CONDUCT Distributor agrees to deal fairly, honestly and respectfully with the Company and each of his or her customers.    
  4. MARKETING RESPONSIBILITIES The Distributor agrees to promote in a reasonable manner the sale of the Products and the enhancement of the reputation of the Company and the Products throughout the Territory.
  5. PRICING Product prices shall be Company’s published wholesale prices current at the time of an accepted Order. All Prices are stated and shall be paid in Canadian dollars. Product prices shall be established from time to time by Company in its sole discretion. Adjusted prices shall not apply to Products shipped prior to the price change or orders placed before the price change.
  6. ORDERS During the Term, Distributor may submit on-line purchase orders for Products (“Orders”) via the Company website. Company reserves the right at its sole discretion to accept or reject any Order. Orders must include the following: (i) Products and quantities; (ii) Pricing; and (iii) shipping instructions. All Orders shall be governed exclusively by the terms of this Agreement. Any terms, conditions or information appearing on or accompanying any purchase order that conflicts with these terms and conditions shall be of no effect unless Company expressly agrees otherwise in a separate, signed writing.
  7. DELIVERY Company will use commercially reasonable efforts to dispatch the Products in accordance with the Shipping Policy. Company will dispatch the Products by any commercially reasonable means of transport to the address specified in an accepted Order unless otherwise requested in writing by Distributor. The cost of carriage will be added to the amount payable by Distributor for the applicable Order.  Delivery of the Products will be made on an FCA (Incoterms 2010) Company’s facility basis, at which point title and risk of loss will pass to Distributor. Distributor will pay or reimburse Company for all costs of handling, carriage, duty, taxes and other related transport charges in connection with the delivery of the Products hereunder.
  8. PAYMENT Payment in full shall be due at the time of Order placement.
  9. INSPECTION AND ACCEPTANCE All claims for defective Products, provided the defects in such Products do not result from the storage or distribution of the Products by the Distributor, shall be made in writing within 5 days after the date on  which the Products are delivered to the Distributor.  Company shall be the sole judge of whether the Products are damaged or defective.  All claims will be made in accordance with the Company’s Defective Products Policy, as published on the Company website.
  10. INDEMNIFICATION BY DISTRIBUTOR Distributor shall hold the Company harmless from and indemnify it against, any and all claims, losses, liabilities, damages and costs and expenses (including, but not limited to, costs of investigation, court costs, arbitrators’ fees and attorneys’ fees) that the Company may incur by reason of: (i) any breach of any of Distributor’s obligations hereunder by Distributor or any of its employees, agents, officers or directors or any other person acting in concert with it or on its behalf; (ii) the act or omission of Distributor or any of its agents, employees or sub-distributors in connection with the transporting, receiving, handling, storing, advertising, promoting, selling, distributing, installing, maintaining, modifying, servicing or repairing of any of the Products; (iii) any breach by Distributor of any law relating to consumer protection, sale of goods, direct selling, sales tax, or any other law of general application; or, (iv) any negligent or willful acts, errors or omissions by Distributor, its employees, contractors, officers, agents or representatives in the performance of this Agreement.
  11. RELATIONSHIP BETWEEN PARTIES The Distributor agrees that it is not the agent or employee of the Company for any purpose and that it shall not represent itself to be the agent or employee of the Company or purport to incur any obligations or make any representations on behalf of the Company and further agrees to ensure that its agents and representatives do not incur any obligations or make any representations on behalf of the Company including but not limited to, opening bank accounts, signing leases, obtaining business registrations, holding property, opening accounts with suppliers, hiring staff or signing in respect of any other legal obligation.
  12. TERM This Agreement shall come into effect on the date of execution by both parties. This Agreement shall remain in force for an indefinite period from the date hereof (the “ Term”), subject to the provisions of section 13.
  13. TERMINATION This Agreement may be terminated by either party immediately by notice in writing given by one party to the other. The termination of this Agreement by Company will not incur any liability on the part of the Company to Distributor for compensation, reimbursement or damage related to the loss of clients, profits, anticipated sales, expenditures or commitments or otherwise.
  14. RESULTS OF TERMINATION Upon the termination of this Agreement:

(a)                 all unfilled orders for Products shall be cancelled;

(b)                 the Company agrees that the Distributor shall be entitled to dispose of unsold Products in its possession at the date of such termination within a reasonable period of time;

(c)                 subject to s. 15(b), Distributor will immediately cease to hold him or herself out as an authorized distributor of the Company or to make any use of Brand Material; and

(d)                 The termination of this Agreement shall be without prejudice to any rights or obligations which may have accrued prior to such termination.

  1. TRADEMARKS The Distributor shall have the right during the term of this Agreement  to use the Company’s trademarks, logos, advertising materials, trade names, or photographs (the “Brand Material”)  in respect of the Products in order to promote sales of the Products in the Territory, to  describe itself as an official distributor of the Products.
  2. SOCIAL MEDIA Company will establish a Facebook page for use by Distributor.  Distributor is required to use the provided Facebook page and shall not otherwise establish any website or social media page or presence that includes any Brand Material.  Distributor will be provided with the ability during the Term to edit his or her Facebook page.  Distributor agrees that content posted to the Facebook page shall not violate copyright or intellectual property laws, and shall otherwise be truthful, legal and in good taste in all respects. Any content posted by Distributor is subject to immediate and arbitrary removal by Company. The Distributor understands that Company retains exclusive ownership of the Facebook page and that right to said Facebook page ceases upon termination.
  3. COMPLIANCE WITH LAWS It is Distributor’s sole liability, cost and obligation to obtain all required licences and permits, and to fully and timely comply with all federal, provincial and municipal laws relating to sales tax, direct selling, consumer protection, and other laws relating to the sale of Products or the conduct of business by Distributor arising from this Agreement.
  4. GOVERNING LAW; ATTORNEYS’ FEES This Agreement will be governed by and construed in accordance with the laws of the province Ontario, and applicable Canadian law, without reference to “conflict of laws” provisions or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any transactions under this Agreement. Venue for any lawsuits brought by the parties to this Agreement against each other regarding or as a result of this Agreement shall be proper only in the Superior Court of Ontario. The Distributor hereby submits itself to the exclusive jurisdiction of the said court and consents to service of process by confirmed facsimile transmission or commercial courier (with written verification of receipt returned to the sender). The prevailing party in any dispute or legal action shall recover from the other party its reasonable attorneys’ fees and costs of suit in addition to any other relief granted.
  5. FORCE MAJEURE Except with respect to the Distributor’s payment obligations hereunder, delays or failure of either party in the performance of its obligations hereunder shall be excused if and to the extent caused by circumstances beyond the reasonable control of the party affected.
  6. GENERAL PROVISIONS

(a)                 This Agreement and the other agreements contemplated hereby constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supercede all prior oral and written understandings and agreements between the parties with respect thereto.

(b)                 Any provision hereof which is contrary to applicable law shall, to the extent of such contravention, be severed from this Agreement and shall not impair the validity of any other term, condition or provision hereof.

(c)                 This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by either party without the prior written consent of the other party.

  1. AMENDMENTS These Terms and Conditions and the Company Policies may be modified from time to time by Company. Modifications will be posted to the Distributor-only Facebook page maintained by Company, or sent via email. Any Order placed subsequent to a posted or emailed modification will constitute acceptance of such modification and affirmation of the amended Terms and Conditions, Company Policies, and list of Products and Pricing as a whole.
  2. NOTICES Any notice or other communication given by either party to the other regarding this Agreement will be deemed given and served when personally delivered, or 4 business days after sent by reputable courier requiring signature for receipt, addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Company’s and Distributor’s notice address shall be its address appearing on the Signature Page.
  3. ELECTRONIC EXECUTION An executed copy of this agreement (or any portion of this agreement) and any Order may be delivered by any of the parties by facsimile, electrical, digital, magnetic, optical, electromagnetic, or similar capability regardless of the medium of transmission (any such medium is referred to in this and the following section as “electronic”), and such delivery will be effective and binding upon such party, and will not in any way diminish or affect the legal effectiveness, validity or enforceability of this agreement or of any Order.

 

END OF GENERAL TERMS AND CONDITIONS

 

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