Reseller Terms of Service
RETAIL SELLER TERMS OF SERVICE
updated Jan 20, 2022
The terms “Company”, “we”, “us” and “our” refer to GG Equine LLC. The terms “Retailer”, “you”, and “your” refer to you. Company and Retailer are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
By purchasing products (“Products”) from GG Equine LLC, you agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service constitute the agreement and understanding between you and us, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service. If you choose to order from us following notification of any changes to these Terms of Service, your order constitutes acceptance of those changes.
- AUTHORIZED RESALE APPOINTMENT.
1.01. Appointment and Limitations. The Company hereby appoints you as an authorized retail seller of the Company’s Products identified on Exhibit A in the authorized territory, the United States (the “Territory”). This appointment is non-exclusive and Company reserves the right to appoint other retailers in the Territory and/or to sell the Products itself in the Territory. You agree not to market or solicit customers or sales outside of the Territory or as specifically prohibited herein, without Company’s prior written consent, which consent shall be at the Company’s sole discretion. In the event you become aware of any inquiries and/or leads for the sale of Products outside the Territory, you agree to promptly inform the Company. This appointment DOES NOT authorize you to resell the Products to other dealers, retailers, third-party seller marketplaces, such as Amazon, eBay, etc, or to customers who solicit orders over the internet except as expressly provided in Subsection 1.02 related to your own branded retail website.
1.02. Online Orders. All sales of the Product by Retailer must be conducted in their brick-and-mortar store(s) or through your own branded website. You may not sell through any third party marketplaces, including but not limited to Amazon and eBay.
1.03. Diversion. You agree you will not, either directly or indirectly, promote, market, distribute, import, or sell the Products, including via the Internet or mail order, to any third-party address or Internet Protocol (IP) address as prohibited under the terms of Section 1. If Retailer learns, believes, or receives notice of any attempt to place or receives any order from a prospective purchaser in contravention of the restrictions set forth in this Section 1, Retailer shall immediately report the matter to the Company and refer that order to the Company. Retailer agrees not to accept any such orders for any Product for which it is not expressly authorized. Violation of the terms of Section 1 shall subject Retailer to the penalties and damages set forth in Section 11 below, including but not limited to termination of this Agreement and monetary damages.
- PURCHASE ORDERS; PRICING; PAYMENT TERMS.
2.01. Purchase Orders. Orders for the purchase of Products (“Purchase Orders”) must be submitted to Company by Retailer by email or through Company’s online store. The Retailer’s requested receipt date should allow at least ten (10) business days lead time for Purchase Order acceptance and fulfillment, as well as a reasonable amount of time for standard shipping transit time. Company assumes no liability for any delay in filling or shipping any Purchase Orders.
Company reserves the right to reject any Purchase Order, in whole or in part, for any reason. Company may exercise this right on a case-by-case basis. Company reserves the right to limit the quantities of Products in any Purchase Order for any reason. All descriptions of Products or Product pricing are subject to change at anytime without notice, at the sole discretion of Company. Company reserves the right to discontinue any Product at any time.
Company reserves the right to refuse, cancel, or delay any Purchase Order placed by Retailer and accepted by Company when Retailer is delinquent in payments or when Retailer has failed to perform any of its obligations under this Agreement.
2.02. No Conflicting Terms. The Parties agree that the terms of this Agreement shall prevail over any conflicting terms and conditions in any Purchase Order or any other instrument or document provided by the Retailer. Any additional or different terms or conditions in any Purchase Order, or other instrument or response from Retailer shall be deemed objected to by Company without need of any further or additional notice of objection, and such additional or different terms shall be of no effect or in any way binding upon Company.
2.03. Acceptance of Purchase Order by Company. Purchase Orders are subject to written acceptance by the Company. Purchase Orders submitted by Retailer shall not be binding on Company until written acceptance by Company or shipment of the Purchase Order. Acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Company.
Retailer should be aware that the Company does not do “back orders.” Therefore, any items that are out of stock at the time of the Retailer’s Purchase Order will be removed from the Purchase Order and will not be fulfilled at a later date. Retailer may elect to add these items to a future Purchase Order if Company is back in stock.
2.04. Prices and Payment Terms. Prices for Products are subject to change without notice, but are typically set at the beginning of each year. Company reserves the right at any time to modify or discontinue Products (or any part or content thereof) without notice at any time. Company shall not be liable to Retailer or to any third-party for any modification, price change, suspension, or discontinuance of Products.
Invoices are due and payable within thirty (30) days from the date of invoice unless otherwise agreed upon in writing. Company shall send Retailer invoices via email for each shipment of Products. Payments due hereunder must be made by check, ACH transfer, or credit card. For payment by credit card, there will be a 3% processing fee charge. The Company reserves the right to change or modify payment terms upon thirty (30) days’ notice to Retailer. Retailer shall have no right of offset or withholding under this Agreement.
Any amounts not paid by Retailer when due to Company shall be subject to interest charges, from the date due until paid, at the rate of one and one half percent (1.5%) per month or the highest interest rate allowable by law (whichever is greater), payable monthly. If any amounts due to Company from Retailer, for any reason, become past due, Company may at its option and without further notice withhold further shipment of Products until all invoices have been paid in full.
2.05. Minimum Advertised Price (MAP) Policy. Retailer agrees to a specific advertised price point for all Products. The current MAP for Products are listed in Exhibit A. Company will determine the MAP on an annual basis; however, it reserves the right, in its sole discretion to modify the list from time to time upon providing thirty (30) days written notice to Retailer. In addition, the MAP may be temporarily modified during occasional sale periods determined by Company. Company will give Retailer at least ten (10) days notice prior to commencement of sale period regarding any temporary MAP changes. The MAP Policy applies to advertised prices, not the price at which Retailer actually sells the Products or offers the Products for sale to an individual in-store.
2.06. MAP Related Advertising Guidelines. The MAP Policy applies to all Retailer’s advertisements of any Product in any and all media, including but not limited to flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, television, radio, and public signage, as well as Internet sites, social media sites, apps, or any other electronic media. The MAP Policy does not apply to solely on-premise or in-store advertising that is not distributed to customers. Website features such as “click for price,” automated “bounce-back” pricing emails, pre-formatted email responses, forms, and automatic price display for any Products prior to being placed in a customer’s shopping cart, and other similar features are considered to be communications initiated by Retailer rather than by the customer and thereby constitute “advertising” under and violation of this MAP Policy.
This MAP Policy also applies to any activity which Company determines, in its sole discretion, is designed or intended to circumvent the intent of this MAP Policy, such as solicitations for ‘group purchases’ and the like.
It shall not be a violation of this MAP Policy for Retailer to advertise in general that it has “the lowest prices” or will match or beat its competitors’ prices, or to use similar phrases; so long as Retailer does not include any advertised price below MAP and otherwise complies with this MAP Policy. From time to time, Company may permit Retailer to advertise Products at prices lower than the MAP. In such events, Company reserves the right to modify or suspend the MAP retail price with respect to the affected products for a specified period of time by providing advance notice to all Retailers of such changes.
2.07. MAP - Bundling Guidelines. “Bundling” or advertising Company’s Brand Products at a discount when sold with other Brand or non-Brand products is not permitted.
2.08. Price Exclusions. The price which Company shall sell the Products to Retailer does not include, and Company shall not be responsible for the cost of shipping, insurance, or any required federal, state or local sales or other taxes, duties, export or custom charges, VAT charges, brokerage or other fees.
2.09. Policy Enforcement. If a Retailer violates this MAP policy, then Company may take any or all of the following actions, including but not limited to the provisions listed in Section 11: (i) cancel any pending orders; (ii) restrict future orders; (iii) terminate the Agreement: (iv) suspend Retailer’s account; (v) recover liquidated damages, as it would be difficult and expensive to ascertain actual damages, in the amount of the greater of $1000.00 per instance-per Product of MAP policy violation or $10,000.00; (v) injunctive relief; and (vi) any other remedies available to Company in law or equity.
2.10. Minimum Order Volume. There are no minimum order volume requirements to place an order. Company reserves the right, in its sole discretion, to modify minimum order volume requirements upon providing thirty (30) days written notice to Retailer.
2.11. Past Due Amounts. If any amount due Company by Retailer, for any reason, becomes past due, Company may at its option and without further notice withhold further shipments or deliveries to Retailer until all invoices are paid in full. If any indebtedness shall be more than sixty (60) days past due, in addition to those additional remedies set forth in this Agreement, Company may, at its election, terminate this Agreement upon written notice to Retailer, and all sums owed by Retailer shall become immediately due and payable regardless of the payment terms set forth elsewhere in this Agreement.
2.12. Taxes. Retailer shall be responsible for any national, state or local sales, use, value added or other tax, tariff, duty or assessment levied or imposed by the United States or any foreign governmental authority arising out of or related to any of the transactions contemplated by this Agreement, other than taxes based upon Company’s income. Retailer must pay directly, or reimburse Company for the amount of such sales, use, value added or other tax, tariff, duty or assessment which Company is at any time obligated to pay or collect.
2.13. Past Audit Claims. Retailer shall, at Company’s request, provide full and complete records which fully support any discrepancies Retailer may claim exist between any amounts the Company claims are due for Retailer and the amounts Retailer claims are owed to or are due from Company. Any claim of discrepancies raised by Retailer shall be waived by Retailer if such claim is not made within six (6) months from the date of invoice on which the claim is based.
2.14. Purchase Money Security Interest. Company reserves a purchase money security interest in all goods or inventory sold pursuant to this Agreement and proceeds thereof until Retailer makes payment in full for all goods and services provided in connection with the sale. Retailer authorizes Company to file any financing statement to this effect, and where necessary, to execute any financing statement requested by Company to perfect its security interest in the goods.
- SHIPMENT OF PRODUCTS.
3.01. Shipment Terms. All Products purchased by Retailer under this Agreement will be suitably packaged for shipment in Company’s standard containers, marked for shipment to Retailer at the address specified in the Purchase Order, and delivered to Retailer or the forwarding agent selected by Retailer within the United States. If Retailer fails to designate a forwarding agent, Company will make such designation in accordance with its standard shipping practices.
Shipment of Products under this Agreement shall be F.O.B. Company’s warehouse or any such other related facility for all orders. Company shall use commercially reasonable efforts to ship Products to Retailer in a timely manner. Retailer understands and agrees that Company requires a lead time of ten (10) business days (M-F excluding holidays) from Company’s receipt of the Purchase Order to fulfill wholesale orders. Retailer further understands and agrees, that shipment of any Products ordered from Company under this Agreement may be delayed for a period of time sufficient to allow the manufacture and/or assembly or otherwise acquire the Products for Retailer, and Retailer further agree that Company shall not be held liable, whether for actual or consequential damages, to Retailer or any other party for any delay in shipment of any Purchase Order. If there is a delay in the shipment of an Order outside of the 10-day window, Retailer may cancel the order upon providing written notice to Company, provided the order has not already been shipped. Any expense for any special packaging or any special delivery requested by Retailer shall be borne solely by Retailer.
3.02. Company’s Right to Delay, Cancel or Allocate. Notwithstanding Company’s obligations in this Agreement, Company reserves the right to refuse, cancel, or delay any shipment to Retailer when Retailer is delinquent in payments, when payment for a shipment has not been arranged to Company’s reasonable satisfaction, or when Retailer has failed to perform any of its obligations under this Agreement. Should any Purchase Order for Products exceed Company’s available inventory, Company shall in its sole discretion determine how to allocate its available inventory without liability to Retailer on account of the method of allocation determined or its implementation.
3.03. Acceptance of Shipments. Retailer shall have ten (10) days from the date of arrival of the shipment of the Products to the shipping location designated by Retailer to inspect the Products and notify Company of any discrepancies with respect to shipments of Purchase Orders, including, but not limited to any discrepancies in the quantity or quality of the Products. Notices of any discrepancies shall be in writing and provided to Company via email and directed to the Company’s Sales Department email firstname.lastname@example.org. Unless a notice of a discrepancy is reported to Company as required in this Section 3.04, all shipments of Products will be deemed accepted by the Retailer.
- CUSTOMERS - PRODUCT RETURNS AND TROUBLESHOOTING.
4.01. Customer Returns. Retailer’s customer shall have 30 days from the point of sale (“POS”) to the customer to return the Product for any reason for a refund. Thereafter, in order for Retailer to receive a refund from Company for the returned product, it must notify Company and return the Product within ten (10) days of the customer’s return. Thereafter, Company will issue a credit or refund, in Company’s discretion, to Retailer for the amount Retailer paid for the Product. Retailer is responsible for all return related shipping costs.
4.02 Customer Questions and Troubleshooting. Retailer understands and agrees that Company prides itself on its customer service and care and providing customers with assistance with the use of the Products. As such, Retailer agrees that should a Customer contact it, whether by telephone, email, or social media, regarding the use of a Product, Retailer will direct the customer to contact Company Customer Service directly at email@example.com
- INSURANCE. Retailer agrees to maintain Commercial General Liability Insurance with insurance companies with an AM rating of A- or better or that is otherwise acceptable to the Company, with minimum limits of not less than $1,000,000 per occurrence. Retailer agrees to provide Company with thirty (30) days prior written notice of any change or cancellation in any applicable insurance policy.
- WARRANTY. Company makes no warranties or representations to Retailer or any other person with respect to the Products or any service provided to Retailer or any other person, except as set forth in Company’s Limited Warranty accompanying the Products (the “Limited Warranty”). If any Products are not accompanied by a warranty cards, Company’s then-current warranty applicable to those Products shall apply. All sales to Retailer shall include and be subject to Company’s standard Limited Warranty, warranty disclaimers and limitations on liability in effect for the Products at the time of shipment of the Products to Retailer, unless expressly agreed otherwise in a separate document referencing this Agreement and signed by authorized representatives of the Parties. Company reserves the right to change any of the terms of the Limited Warranty at any time, upon notice to Retailer. Retailer will not alter the Limited Warranty, warranty disclaimers and limitation of liability without the prior written authorization of Company, nor extend or make any additional warranty or representation regarding the Products unless expressly authorized by Company.
The Limited Warranty applicable to the Products shall become effective at the point of sale (“POS”) to the customer.
THE LIMITED WARRANTY REFERRED TO IN THIS SECTION IS THE ONLY WARRANTY, EXPRESS OR IMPLIED, THAT COMPANY MAKES WITH RESPECT TO THE PRODUCTS. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- INTELLECTUAL PROPERTY RIGHTS. Subject to the terms and conditions of this Agreement, during the term of this Agreement Company hereby grants to Retailer a revocable, non-transferable, non-exclusive, limited license to use Company’s logos, trademarks, and trade names (collectively the “Company Marks”), solely in connection with the marketing, advertisement and sale of the Products in the authorized Territory designated in Section 1 of the Agreement. Such license shall immediately terminate upon the expiration or termination of this Agreement. Retailer shall strictly comply with all standards of use for the Company Marks and must at all times display appropriate trademark and copyright notices as instructed by Company. All media advertising, printed materials and electronic documents in which a Company Mark is used must be submitted to Company for review in advance and must not be distributed or used in any manner without the prior written approval of Company. Retailer acknowledges and agrees that the Company Marks and other intellectual property provided to Retailer by Company, if any, are the sole and exclusive property of Company. Retailer shall not acquire any right, title or interest under this Agreement in any patent, copyright, Company Mark or other intellectual property right of any kind of Company. No implied license, patent, copyright or other intellectual property right of Company is granted under this Agreement or otherwise. During the term of this Agreement and thereafter, Retailer shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of the Company Marks, patents, copyrights or other intellectual property of Company or the goodwill associated therewith or that will tend to prejudice the reputation of the Company or the sale of any Company products.
- CONFIDENTIAL INFORMATION.
8.01. Confidential Information. The Retailer acknowledges and agrees that during the term of this Agreement, it may receive confidential information from the Company. “Confidential Information” shall mean (i) information relating to the Company, and its affiliates, products or business including, but not limited to, the business plans, financial records, customers, suppliers, products, product samples, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, Product white paper, and know-how or other intellectual property, that may be at any time furnished, communicated or delivered by Company to Retailer, whether in oral, tangible, electronic or other form and (ii) all other non-public information provided by Company to the Retailer, but not limited to financial, technical and business information, and all non-promotional materials furnished by the Company to Retailer.
8.02. Exceptions. The Retailer shall not have any obligations to preserve the confidential nature of any Confidential Information that (a) it can demonstrate by competent evidence was rightfully in the Retailer’s possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of the Retailer; (c) is rightfully received by the Retailer from a third party without a duty of confidentiality; (d) is independently developed by the Retailer without use of the Confidential Information; or (e) is disclosed by the Retailer with the Company’s prior written approval. In the event the Retailer is requested in any legal action or proceeding to disclose any Confidential Information, the Retailer shall, unless prohibited by applicable law, give the Company prompt notice of such request, and shall reasonably assist the Company in its efforts to obtain an appropriate protective order.
8.03. Use of Confidential Information; Standard of Care. The Retailer shall maintain the Confidential Information in confidence and disclose the Confidential Information only to its employees who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are under binding confidentiality obligations no less restrictive as this Agreement. The Retailer shall remain responsible for breaches of this Agreement arising from the acts of its employees. The Retailer shall protect Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information. The Retailer agrees not to use the Company’s Confidential Information for its own purpose or for the benefit of any third party, without the prior written approval of the Company. In the event Retailer becomes aware of any improper use or disclosure of Confidential Information, it shall immediately notify the Company and shall take all available measures to prevent any further misuse or improper disclosure of the Confidential Information. The Retailer shall promptly return or certify destruction of all copies of Confidential Information upon request by the Company at any time or upon the expiration or earlier termination of this Agreement.
8.04. Equitable Relief. The Retailer hereby agrees and acknowledges that any breach or threatened breach of this Agreement regarding the treatment of Confidential Information will result in irreparable harm to the Company for which there may be no adequate remedy at law. In addition to other remedies provided by law or at equity, in such event the Company shall be entitled to injunctive relief, without the necessity of posting a bond and without having to establish any actual damages, to prevent any breach or further breach of this Agreement by the Retailer.
- INDEMNIFICATION. Retailer hereby agrees to defend, indemnify and hold harmless Company, its affiliates and their respective officers, directors, employees and agents from and against any and all Claims (i) arising out of the acts or omissions of Retailer, its employees, agents or representatives with respect to its performance of this Agreement, (ii) arising out of the alteration or modification of the Products or Company Marks by Retailer or its employees, agents or representatives or the use of the Products or Company Marks in combination with any other products or marks, or (iii) alleging that the Retailer’s Marks infringe or otherwise violate the intellectual property rights of a third party. Company shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at Company’s expense.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY BE LIABLE TO RETAILER UNDER THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
- TERM. This Agreement shall commence immediately and will renew annually on January 1, unless either Party provides written notice to terminate at least thirty (30) days prior to the expiration of the Initial Term or any renewal term.
12.01. Termination for Breach. Either Party may terminate this Agreement at any time in the event of a material breach by the other Party that remains uncured after (i) in the event of a monetary breach ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach, thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
12.02. Termination for Financial Insecurity. Either Party may terminate this Agreement and any outstanding Purchase Orders (to the extent Products have not already been delivered to the carrier for shipment) immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
12.03. Termination for Convenience. Either Party may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice. Such termination, however, shall not relieve the Parties’ obligations with respect to accepted Purchase Orders.
12.04. Obligations Upon Termination. Upon termination of this Agreement, Retailer shall cease to be an authorized Retailer of the Products and (i) all amounts of indebtedness owing by Retailer to Company shall become immediately due and payable, notwithstanding prior terms of sale, (ii) all unshipped orders may be cancelled by Company without liability, and (iii) Retailer shall resell and deliver to Company upon demand by Company, free and clear of all liens and encumbrances, such Products as Company may elect to repurchase from Retailer (in the original factory packaging). Within thirty (30) days of termination of this Agreement, Retailer shall remove and not thereafter use any sign, display, or other advertising or marketing means containing Company Marks. In addition, Retailer shall immediately destroy all advertising matter and other printed materials in its possession or under its control containing the Company Marks [except for those in-store materials directly necessary for the resale of the Products which may be remaining in Retailer’s possession after termination, which materials Retailer may continue to utilize until all remaining Products have been sold or ninety (90) days after termination, whichever comes first, after which Retailer shall cease the use of any such Company Marks].
- COMPLIANCE WITH LAWS. Retailer represents and warrants to the Company that it will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the Export Control Act, as may be amended from time to time, in performing its duties hereunder and in any of its dealings with respect to the Products. Retailer shall promptly notify Company in the event Retailer knows or has reason to believe that any act or refrainment from acting required by or contemplated by this Agreement violates any applicable law, rule or regulation (whether criminal or non-criminal) or if it becomes aware that any Products contain a defect which could create a substantial product hazard or an unreasonable risk of serious injury or death.
- RETAILER’S REPRESENTATIONS AND WARRANTIES. Retailer represents and warrants to the Company that (i) Retailer is a corporation duly incorporated, duly organized, validly existing, and in good standing and is authorized to do business in each jurisdiction in which it conducts business; (ii) its appointment as an authorized Retailer and its sale of Products under this Agreement does not violate any existing obligations or contracts of the Retailer; (iii) it has the full legal right, power, and authority to enter into and perform this Agreement; (iv) the individuals signing this Agreement on its behalf are authorized to execute this Agreement and that no further proof of authorization shall be required; and (vi) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.
- GENERAL TERMS.
15.01. Independent Contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Neither Company nor Retailer has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Retailer shall be solely responsible for payment of its employees’ and personnel’s salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
15.02. Assignment. Neither this Agreement, nor any right or interest herein, may be assigned by Retailer, in whole or in part, without the express written consent of the Company, which consent shall be at Company’s sole discretion. Company may assign this Agreement to any affiliated company without Retailer’s consent, or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of the Company’s assets. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and legal representatives. There are no third party beneficiaries to this Agreement.
15.03. Notices. Unless otherwise agreed to by the parties, all notices shall be deemed effective when received and made in writing by either (i) email (ii) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail with confirmation, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
Company: GG Equine, LLC
509 Ottawa Ave, Durham, NC 27701
15.04. Force Majeure. Neither Party shall liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing Party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence.
15.05. Governing Law; Venue. This Agreement shall be governed by the laws of the State of North Carolina without giving effect to the principles of conflicts of law of such state, and shall be binding upon the parties hereto in the United States and worldwide. Any claims or legal actions by one Party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in Durham County, North Carolina. Both parties hereby submit to the jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
15.06. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
15.07. Collection Expense. If Company incurs any costs, expenses, or fees, including attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due from the Retailer under this Agreement, Retailer agrees to reimburse Company for all such costs, expenses and fees.
15.08. Cumulative Remedies. Except as otherwise provided for in this Agreement, the rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
15.09. Survival. The provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement, including without limitation sections 6 (warranty), 8 (confidentiality), 9 (indemnification), 10 (limitation of liability), 13 (compliance with laws), and 15 (general terms) shall so survive.
15.10. Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
15.11. Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement shall not be construed more strongly for or against any of the parties hereto, regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof.
15.12. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original including copies with signatures shared via email, electronic signatures, etc, but all of which together will constitute one and the same instrument, without necessity of production of the others.
15.13. Waiver. The failure of either Party to enforce any provision of this Agreement, except with respect to waiver as provided in Section 2.09 of this Agreement, shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision in the Agreement thereafter. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party.
15.14. Entire Agreement; Modification. This Agreement is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreements or communications between the Parties hereto, whether written, oral, electronic or otherwise, relating to the subject matter of this Agreement.