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* Terms & Conditions
This Supplier Agreement (“Agreement”) is made effective upon accepting these terms and submitting this application by and between ATG Specialty Products Corporation d/b/a Breakthrough® Clean (“Supplier”) and the applying dealer business name submitted on the preceding form (“Retailer”) (Supplier and Retailer shall from time to time be referred to collectively as “Parties”). The parties agree that all sales and deliveries of Merchandise (as defined below) by Supplier to Retailer and all Orders (as defined below) by Retailer will be covered by and subject to the terms of this Agreement, and any Order signed or initialed (electronically or otherwise) by an Authorized Buyer (as defined below) for Retailer. 1. UNIT PRICE; ORDERS; CANCELLATION Supplier agrees to sell, and Retailer agrees to purchase, a minimum of two hundred fifty dollars of “Breakthrough® Clean Products” (the “Merchandise”), per Order (the “Minimum Order”) at a price per unit as set forth in the “Price Sheet” that Retailer will receive upon account approval. Supplier shall ship only after receipt of an Online Order from Retailer. All Shipments shall be F.O.B. to Supplier’s warehouse. Retailer’s failure to comply with one or more of the terms of this Agreement shall constitute an event of default hereunder and shall be grounds for the exercise by Supplier of any of the remedies provided for in this Agreement or by applicable law. Any cancellation of an Order shall be made within seventy-two (72) hours of placement of the Order (the “Cancellation Deadline”). Retailer shall pay a cancellation fee of five percent (5%) of the order value for any Order cancelled after the Cancellation Deadline. 3. PAYMENT TERMS ALL PAYMENTS MUST BE MADE ONLINE THROUGH THE BREAKTHROUGHCLEAN.COM WEBSITE. 4. TAXES The Unit Price set forth above and/or reflected in any Invoice does not include any taxes. 5. MAP POLICY AND AGREEMENT To protect the integrity of Supplier’s brand, products, merchandise, and its customers’ investments, Supplier has implemented Manufacturers Advertised Pricing, or MAP, for its products and merchandise. MAP restriction is intended to establish the maximum discount percentage that can be used by Retailer for the advertising of Supplier’s merchandise or to list minimum advertised prices for specific periods. THE CURRENT MAP FOR ANY AND ALL SUPPLIER PRODUCTS ARE NOT TO EXCEED 10% OFF OF MSRP. Any violation of the MAP restriction will result in Supplier’s right to terminate this Agreement upon written notice to Retailer. The termination shall become effective upon Supplier’s mailing of any notice of termination pursuant to this Section 5. These and such other efforts (including, but not limited to after-the-fact discounts, inflated or additional terms, and selling or attempting to sell under names or businesses and/or locations not complying with MAP restrictions) employed to circumvent the purposes of the MAP pricing shall be deemed violations of the MAP restrictions and will subject Retailer to termination of this Agreement as described above. 6. ORDER PLACEMENT AND INVOICING Retailer shall send all Orders to Supplier electronically (WEBSITE). Supplier shall send Retailer all Invoices electronically (E-Mail) unless otherwise agreed to by the Parties in writing. 7. SHIPPING AND OTHER RELEATED COSTS Supplier shall be responsible for verifying the accuracy of all costs for shipping, discounts, allowances and all other terms of sale on all online orders. Retailer shall be responsible for any and all amounts due as reflected on any Invoice. If any Merchandise ships prior to discovery of any error on any Order or Invoice, the Parties shall confer within forty-eight (48) hours of discovery of the error to determine the actions to be taken regarding the error. 8. SHIPPER LOAD AND COUNT RESPONSIBILITIES Supplier shall be responsible for monitoring its shipping process. Supplier shall ensure that the specified number of Units per Order are properly packaged for shipment to Retailer and shall seal all packages with an individually numbered, Supplier-provided and approved Seal and shall document the Seal Number on all copies of the Bill of Lading. Retailer expressly agrees that the provisions of this Agreement shall supersede any contrary Bill of Lading term, clause, notation, other provision, or any other writing. 9. DELIVERY TIME Supplier agrees to ship Orders within three (3) to five (5) days of Supplier’s receipt of the Order from Retailer (the “Anticipated Shipment Date”). Supplier agrees to inform Retailer immediately of any actual or anticipated failure to ship all or any part of an Order by the Anticipated Shipment Date. Retailer shall have the right to cancel any Order not shipped at least thirty (30) days of the expiration the Anticipated Shipment Date. 10. NO REPRESENTATIONS AND NO WARRANTIES Supplier makes no representations regarding any merchandise or product sold pursuant to this Agreement. Supplier expressly disclaims any and all warrantied whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. 11. INDEMNIFICATION Retailer shall protect, defend, hold harmless and indemnify Supplier, including its officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorney fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged: (a) Misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other right relating to any Merchandise; (b) Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in, such Merchandise, including but not limited to (i) any actual or alleged failure to provide adequate warnings, labeling or instructions, or (ii) any actual or alleged improper construction or design of said Merchandise. (c) Violation of any law, statute, ordinance, governmental administrative order, rule or regulation relating to the merchandise, or to any of its components or ingredients, or to its manufacture, shipment, labeling, use or sale, or to any failure to provide a Material Safety Data Sheet or certification; (d) Act, activity or omission of Retailer or any of its employees, representatives or agents, including but not limited to activities on Retailer’s premises and the use of any vehicle, equipment, fixture or material of Retailer in connection with any sale to or service to the Retailer; and (e) Any installation by Supplier of Merchandise covered by this Agreement. Retailer shall promptly notify Supplier of the assertion, filing or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity and shall immediately take such action as may be necessary or appropriate to protect the interests of Supplier, its officers, directors, employees and agents. Any and all counsel selected or provided by Retailer to represent or defend Supplier or any of its officers, directors, employees or agents shall accept and acknowledge receipt of Supplier’s Indemnity Counsel Guidelines and shall conduct such representation or defense strictly in accordance with such Guidelines. If Supplier in its sole discretion shall determine that such counsel has not done so, or appears unwilling or unable to do so, Supplier may replace such counsel with other counsel of Supplier’s own choosing. In such event, any and all fees and expenses of Supplier’s new counsel, together with any and all expenses or costs incurred on account of the change of counsel, shall be paid or reimbursed by Retailer as part of its indemnity obligation hereunder. Supplier shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Supplier or any of its officers, directors, employees or agents. 12. RECALLS If Merchandise is the subject of a Recall, whether initiated by Supplier, Retailer or a government entity (including the issuance of safety notices), Retailer shall be responsible for all matters and costs associated with the Recall, including but not limited to: (a) Consumer notification and contact; (b) All expenses and losses incurred by Retailer in connection with such Recall (and where applicable, any products with which the Recalled Merchandise has been packaged, consolidated or commingled), including but not limited to refunds to customers, lost profits, transportation costs and all other costs associated therewith; and If a government agency initiates any inquiry or investigation relating to the Merchandise or similar goods manufactured or supplied by Supplier, Supplier shall notify Retailer immediately thereof and take reasonable steps to resolve the matter. 13. LIMITATION OF DAMAGES Supplier will not be liable for any punitive, special, incidental or consequential damages of any kind (including but not limited to loss of profits, business revenues, business interruption and the like) arising from or relating to the relationship between Supplier and Retailer, including all prior dealings and agreements, or the conduct of business under or breach of this Agreement or any Order, Supplier’s failure to fulfill any Order or Orders or the termination of business relations with Retailer, regardless of whether the claim under which such damages are sought is based upon breach of warranty, breach of contract, negligence, tort, strict liability, statute, regulation or any other legal theory or law, even if Retailer has not been advised by Supplier of the possibility of such damages. 14. REMEDIES OF RETAILER Supplier’s failure to comply with any of the terms and conditions of this Agreement or any Invoice shall be grounds for the exercise by Retailer of any one or more of the following remedies: (a) Cancellation of all or any part of any undelivered Order, after providing Supplier with written notice of any failure to comply and after providing Supplier with thirty (30) days with which to cure any such failure. (b) Rejection (or revocation of acceptance) of all or any part of any delivered shipment. Upon rejection or revocation of acceptance of any part of or all of a shipment, Retailer may return the Merchandise or hold it at Retailer’s risk and expense. Retailer is under duty to inspect the Merchandise, and to provide notice to Supplier of any defect or nonconformity of the Merchandise within twenty-four (24) hours of Retailer’s receipt of any shipment; and (c) Buyer’s remedies under the Florida’s adoption of the Uniform Commercial Code and such other remedies as are provided under applicable law. 15. REMEDIES OF SUPPLIER Retailer’s failure to comply with any of the terms and conditions of this Agreement or of any Invoice shall be grounds for the exercise by Supplier of any one or more of the following remedies: (a) Termination of this Agreement; (b) Seller’s remedies under the Florida’s adoption of the Uniform Commercial Code and such other remedies as are provided under applicable law. 16. ASSIGNMENT This Agreement may not be assigned without the express written consent of all Parties. 17. PUBLICITY; USE OF NAME AND INTELLECTUAL PROPERTY Retailer shall not refer to Supplier in any advertising or published communication without the prior written approval of Supplier. For and during the term of this Agreement, Retailer is hereby granted a limited license to use the Breakthrough® Clean name, logo, trademarks, service marks, patents, copyrights and trade dress. Such limited license shall extend only to Retailer’s use in connection with the sales and marketing of products and/or merchandise sold under this Agreement. Nothing in this Section 17 shall be deemed to vest Retailer with any ownership interest in or to Supplier’s name, logo, trademarks, service marks, patents, copyrights or trade dress. The limited license granted hereunder shall terminate simultaneously with any termination of this Agreement, for any reason. 18. SEVERABILITY; WAIVER If any Court of competent jurisdiction finds that any part of this Agreement is invalid or unenforceable, such a finding shall not affect the validity of any other part hereof. Any Party’s failure to enforce, at any time, any provision of this Agreement shall not be construed as a waiver of such provision or of any rights thereafter to enforce such provision. Any purported waiver by Retailer or Supplier of any of the terms and conditions of this Agreement or any Order must be in writing signed by all Parties. 19. FORUM SELECTION; CHOICE OF LAW; STATUTE OF LIMITATIONS This Agreement, any and all Orders, and any and all disputes arising thereunder or relating thereto, whether sounding in contract or tort, shall be governed by and construed in accordance with the laws of the State of Florida without regard to the internal law of the State of Florida regarding conflicts of law, and the federal and/or state courts of Miami-Dade County, Florida, shall have exclusive jurisdiction over any actions or suits relating thereto to the exclusion of all others. The parties mutually acknowledge and agree that they shall not raise, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. 20. ATTORNEY’S FEES If either party shall default in their performance under this Agreement, which results in the expenditure of attorneys’ fees to enforce the terms of this Agreement or to recover damages for breach of this Agreement, then the prevailing party shall receive their reasonable and actually incurred attorneys’ fees, court costs, and other legal expenses, in addition to any other damages recovered. 21. NOTICES Unless otherwise specifically provided for herein, any notice or demand which under the terms of this Agreement or under any statute must or may be given or made shall be in writing and shall be given or made by overnight express service addressed as follows: If to Supplier: BREAKTHROUGH® CLEAN. 10850 NW 21st Street Suite 230/240 Miami, FL 33172 28. TERM OF AGREEMENT This Agreement shall expire one (1) year after the Effective Date. This Agreement may only be renewed or extended by an agreement signed by an authorized officer of both Retailer and Supplier. Neither Supplier nor Retailer is under any obligation to extend the term of this Agreement or to renew this Agreement. Neither Supplier nor Retailer should take any actions in reliance on this Agreement being extended or renewed. Neither party shall be responsible for any costs incurred by the other in anticipation of the extension or renewal of this Agreement.