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Retailer Agreement Terms

TERMS & CONDITIONS, Retailer Agreement

1. Retailer Terms. Subject to the terms and conditions of this Agreement, MudWtr hereby appoints Retailer, and Retailer hereby accepts such appointment, as a non-exclusive retail seller of the Products to individual consumers solely at or through the "Locations of Sales" specified on the Cover Page. MudWtr may from time to time (a) add, delete, discontinue, and/or modify the listed Products and (b) adopt, modify and/or enforce policies and programs related to the Products (which may include, without limitation, brand guidelines and style sheets regarding use of the MudWtr Marks (as defined below) (the "Brand Guidelines"), minimum advertised price policies ("MAP Policies"), quality standards, sales policies and/or other policies) ("Policies"), and all such Policies will be incorporated herein by reference as of the date of their adoption and, if applicable, modification. Without limiting the foregoing, Retailer's advertising, promotional, and other uses of MudWtr's trademarks, logos, trade dress, trade names, and other branding, symbols, and identifying marks ("MudWtr Marks") will at all times conform to the Brand Guidelines. Retailer (including its owners, employees and other representatives) is not an agent, employee or legal representative of MudWtr and does not have any authority to (and will not) represent or bind MudWtr to any contract with any third party (or attempt to do so). Retailer will set its own resale prices for the Products; provided, that such resale prices may not be below the minimum advertised price in MudWtr's then-current MAP Policy, which may be amended from time to time in MudWtr's sole discretion. Retailer will not, by itself or with or through others, (i) remove or alter, or permit the removal or alteration of, any MudWtr Marks or patent numbers, copyright notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any of the Products or their containers, (ii) affix any of Retailer’s (or any third party’s) trademarks, legends, logos, trade dress, trade names, or other branding, symbols, or identifying marks to any of the Products or their packages, (iii) engage in any trade practice which could be detrimental to or injure the reputation of MudWtr or the Products, (iv) make any false representation regarding MudWtr or the Products, or (v) disparage the Products or MudWtr. Retailer will comply with all applicable laws, regulations, rules, orders, and guidance pertaining to the Products, including, without limitation, those pertaining to consumable product sales and safety. Retailer will, at no cost or expense to MudWtr, directly satisfy all claims for Products and all customer returns.

 

2. Purchase Orders. Retailer's purchase orders ("POs") must be made in a form and manner acceptable to MudWtr. MudWtr reserves the right to reject any PO for any or no reason. Each PO must reflect the Product item numbers and pricing as provided by MudWtr and the quantity of Products requested. Retailer must submit POs to wholesale@mudwtr.com. No PO will be binding on MudWtr until accepted by an authorized representative of MudWtr. No other terms or conditions will apply to any sale of Products to Retailer unless specifically agreed to in writing signed by both parties. Without limiting the foregoing, MudWtr will not be bound by, and specifically rejects, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is (a) proffered by Retailer in any PO, order, terms and conditions of purchase, receipt, acceptance, confirmation, correspondence, or otherwise or (b) inferred from course of performance, unless MudWtr specifically agrees to such provision in a written instrument signed by MudWtr specifically evidencing this Section 2. Once a PO is accepted by MudWtr, it will be referred to as an "Accepted Order." Retailer may not change, cancel, or issue a stop work order for Accepted Orders without first obtaining MudWtr's prior written consent to such change, cancellation, or stop work order, which MudWtr may grant or withhold in its sole discretion. If MudWtr agrees to any such change, cancellation, or stop work order, then Retailer will be fully responsible, and will reimburse MudWtr in full, for all of MudWtr's costs incurred therewith.

 

3. Payment Terms.

3.1. Prices. Retailer will accept and pay for the Products set forth on an Accepted Order in the quantities set forth on such Accepted Order and at the prices identified on MudWtr's then-current price list communicated to Retailer (the "Prices"). Prices are subject to change from time to time in MudWtr's sole discretion; provided, that changes in Prices will not apply to Accepted Orders in effect prior to the effective date of such Price change. All Prices are in United States dollars and are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Retailer. Retailer will be responsible for all such charges, costs and taxes; provided, that Retailer will not be responsible for any taxes imposed on, or with respect to, MudWtr's income, revenues, gross receipts, personnel or real or personal property or other assets.

3.2. Invoicing. Unless otherwise agreed to between the parties, Retailer will pay all invoiced amounts on receipt. Retailer will make all payments hereunder by the payment method designated in the invoice and in United States dollars. Retailer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Retailer will reimburse MudWtr for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

 

4. Delivery and Acceptance. MudWtr will use commercially reasonable efforts to meet any delivery dates specified in an Accepted Order but will not be liable for any failure to meet such dates. All shipments of Products will be Ex Works (Incoterms 2010) at MudWtr's shipping facilities (the "Delivery Point"). MudWtr fulfills its obligation to deliver when it has made the Products available to Retailer (or its carrier) at the Delivery Point. Title and risk of loss to the Products will pass to Retailer at the Delivery Point. Delivery and acceptance of the Products will be deemed to have occurred when MudWtr has made the Products available for collection by Retailer (or its carrier) at the Delivery Point. MudWtr may, in its sole discretion, without liability or penalty, make partial shipments of Products to Retailer. Each shipment will constitute a separate sale, and Retailer will pay for the units of Product shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under the Accepted Order. If MudWtr delivers to Retailer a quantity of Products of up to 10% more or less than the quantity set forth on the Accepted Order, Retailer will not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and will pay the Price for such Products, adjusted pro rata. Retailer is solely responsible for (a) obtaining all applicable permits necessary for the export of the Products to the delivery destination and bearing and paying all taxes, duties and levies with respect to such export, and (b) obtaining and complying with the terms and conditions of all applicable permits necessary for the import into the delivery destination. Retailer will not return any Products to MudWtr for any reason without MudWtr's prior written authorization. MudWtr reserves the right to charge a restocking fee plus the costs of freight and insurance for such returns.

 

5. Disclaimer. NO WARRANTY IS GIVEN TO RETAILER FOR THE PRODUCTS. MUDWTR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE.

 

6. Intellectual Property. MudWtr reserves all Intellectual Property Rights in and to the Products and the MudWtr Marks. No title to or ownership of any Intellectual Property Rights embodied in or related to any Product or MudWtr Marks is transferredtoPurchaserpursuanttothisAgreement. RetailerwillnotattempttoreverseengineeranyProductorcomponent thereof or to otherwise misappropriate, circumvent or violate any of MudWtr's Intellectual Property Rights. MudWtr reserves all rights not expressly granted in this Agreement, and no licenses are granted by MudWtr to Retailer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. Without limiting the foregoing, MudWtr is the sole and exclusive owner of the MudWtr Marks and Retailer's use of the MudWtr Marks and all goodwill therein inures solely to the benefit of MudWtr. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

 

7. Confidentiality. All non-public, confidential or proprietary information of MudWtr, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by MudWtr to Retailer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by MudWtr in writing. Upon MudWtr's request, Retailer will promptly return all documents and other materials received from MudWtr. MudWtr will be entitled to injunctive relief for any violation of this Section 7. This Section 7 will not apply to information that Retailer can prove with documented evidence was (a) in the public domain at the time of disclosure without any violation of this Agreement, (b) known to Retailer at the time of disclosure without any obligation of confidentiality, or (c) rightfully obtained by Retailer on a non-confidential basis from a third party.

 

8. No Right of Setoff. Retailer will not withhold, offset, recoup or debit any amounts owed (or to become due and owing) to MudWtr, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by MudWtr, whether relating to MudWtr's breach or non-performance of this Agreement or any other agreement between Retailer and MudWtr or otherwise.

 

9. Indemnification.

9.1. Obligation. Retailer will, at its sole expense, defend MudWtr and its shareholders, directors, managers, members, officers, employees, parent company, subsidiaries, affiliates, successors and assigns ("MudWtr Indemnitees") from and against any and all third-party claims, suits, actions or proceedings (each a "Claim"), and indemnify MudWtr from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising in connection with (a) Retailer's breach of this Agreement, (b) Retailer’s intentional, reckless or negligent acts or omissions, and/or (c) statements by Retailer not specifically authorized by MudWtr, including, but not limited to, any Product warranties.

9.2. Procedures. MudWtr will (a) provide prompt written notice of the Claim to Retailer once MudWtr becomes aware of the Claim (provided that failure to provide prompt written notice to Retailer will not alleviate Retailer's obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (b) allow Retailer to control the defense (including granting Retailer the right to select and use counsel of its own choosing reasonably acceptable to MudWtr) and settlement of the Claim (except that MudWtr's prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of MudWtr), and (c) provide reasonable cooperation to Retailer and, at Retailer's request and expense, assistance in the defense or settlement of the Claim.

 

10. Limitation of Liability.

10.1. Consequential Damages Waiver. MUDWTR WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

10.2. Liability Cap. MUDWTR'S ENTIRE LIABILITY TO RETAILER WILL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY RETAILER TO MUDWTR FOR PRODUCTS DURING THE TERM DURING WHICH THE DAMAGES OCCURRED.

10.3. Failure of Essential Purpose and Additional Limitation. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

11. Term and Termination. Unless terminated earlier as provided in this Section 11, this Agreement will commence on the Effective Date and continue thereafter for the "Initial Term" set forth on the Cover Page (the “Initial Term”). This Agreement will automatically renew for successive one-year terms (each, a "Renewal Term" and collectively with the Initial Term, the "Term") unless and until a party provides the other party of its intention to terminate at least 30 days prior to the conclusion of the Initial Term or then-applicable Renewal Term. MudWtr may terminate this Agreement for convenience on 30 days' prior written notice to Retailer. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 30 days after its receipt of notice thereof. Upon termination of this Agreement, (a) Retailer will return or destroy any and all confidential information of MudWtr and other materials provided by MudWtr and (b) unless otherwise agreed by the parties, each party will fulfill its obligations under any and all Accepted Orders in accordance with this Agreement prior to the date of termination; provided, however, that, if this Agreement is terminated by MudWtr due to Retailer's material breach, MudWtr may, at its option, cancel any outstanding Accepted Orders without liability by giving Retailer written notice of such cancellation. The termination of this Agreement will not relieve a party from any payment obligation or other liability arising hereunder prior to such termination. The following provisions survive termination of this Agreement: Sections 3-11, 12, and 13.

 

12. Force Majeure. MudWtr will not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding MudWtr's available supply or any other cause beyond MudWtr's control. In the event of any delay in delivery, failure to fill Accepted Orders or other default or damage caused by any of the foregoing, MudWtr may, at its option and without liability, prorate its deliveries, cancel all or any portion of this Agreement to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.

 

13. Miscellaneous. This Agreement will be governed by the laws of the State of California without effect to its conflicts of laws provisions. Neither party will commence or prosecute any suit, proceeding or claim to enforce any provision of this Agreement, or otherwise arising under or by reason of this Agreement, other than in the state or federal courts located in Los Angeles County, California and the parties hereby irrevocably consent to the jurisdiction and venue of such courts. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to the subject matter hereof, and all past dealings or industry customs. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Retailer may not assign any of its rights or obligations under this Agreement without prior written consent of MudWtr, and any attempt to do so in violation of this sentence will be void. MudWtr may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets and/or voting securities, and upon any such event (and notwithstanding any contrary terms), MudWtr may terminate this Agreement on 30 days' prior written notice to Retailer. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument and (b) by the parties by exchange of signature pages by mail, facsimile or email (if by email, then with signatures in Adobe PDF or similar format). Each person signing has been duly authorized and empowered to enter into this Agreement on behalf of its respective company.