AUTHORIZED RESELLER AGREEMENT
(NONEXCLUSIVE)
This agreement ("Agreement") is entered into between
ELEVATED CONCEPTS,INC.("Vendor"),a Nevada corporation having offices at 0 Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
and
SALOMATKIN & PARTNERS ("Reseller"), having offices at Dom 1/1 Ul.Severny Proezd,
Suite 112, Pos. Leninskie Gorki, Moscow, Russian Federation.
Whereas, Vendor sells a line of eco-friendly, biodegradable, non-toxic household
products and building materials ("Products");
Whereas,Reseller is in the business of reselling household products and building
materials;
Whereas, Vendor desires to engage the Reseller for the purposes of marketing
and selling Vendor's Products in Moscow Region,Russian Federation ("Territory");
and
Therefore, in consideration of the mutual covenants contained herein, payment by
Vendor of the initial Reseller's set-up fees of USD $7,000 (paid) and other good
and valuable consideration the adequacy and receipt of which is hereby
acknowledged the parties agree to the following:
1. DEFINITIONS
"Customer" means an end user of a Product.
"Limited Warranty Statement" means Vendor's then-current warranty from
Vendor to Customers.
"Products" means the products in Vendor's then-current reseller Product
List. Vendor may add to, delete from, or otherwise modify the Products on
the Product List at any time.
"Territory" means Moscow City and Moscow Region, Russian Federation.
2. PRODUCT TERMS
2.1 APPOINTMENT. Vendor hereby appoints Reseller, and Reseller accepts
such appointment, to act as a nonexclusive reseller of Products
only to Customers located in the Territory. Sale of Products to
other resellers or Reseller's affiliates is strictly prohibited.
Reseller will only sell the Products in face-to-face transactions
from physical store outlets located in the Territory, and will not
market or sell the Products using any Internet site or mail-order
catalog without specific written authorization by Vendor.
2.2 PRICES. The prices paid by Reseller to Vendor for Products shall
initially be set by mutual agreement between Vendor and Reseller.
Vendor shall have the right, at any time, to change, alter, or
amend Product prices upon written notice. Reseller is eligible to
receive price protection in accordance with the guidelines agreed
by the parties to this Agreement. Prices are exclusive of all
taxes, insurance, and shipping and handling charges, which are
Reseller's sole responsibility.
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3. ORDERING AND PAYMENT
3.1 ORDERS. Orders shall be in writing and be subject to acceptance by
Vendor. The terms and conditions of each order shall be as
provided by this Agreement, and the provisions of either party's
form of purchase order, acknowledgment, or other business forms
will not apply to any order notwithstanding the other party's
acknowledgment or acceptance of such form.
3.2 SHIPMENT. Shipment will be F.O.B. Vendor's specified warehouse
("Delivery Point"), freight collect, at which time title
(excluding any software components of Products if such exist) and
risk of loss will pass to Reseller. All freight, insurance, and
other shipping expenses from Delivery Point, as well as any
expenses related to Reseller's special packing requests, will be
borne by Reseller unless otherwise agreed to in writing by Vendor.
3.3 PAYMENT. Subject to compliance with Vendor's credit requirements,
payments on orders will be due and payable in full thirty (30)
days from the invoice date. If Reseller is in default of its
payment obligations, Vendor shall give written notice of such
default to Reseller. Upon receipt of such default notice, Reseller
shall have thirty (30) days to cure. If Reseller fails to cure
within the thirty (30) day notice period, Reseller shall pay
service charges of 2 % per month for any past due amounts. Vendor
may in its sole discretion change Reseller's credit terms and/or
require C.O.D. payment for any shipments.
4. DEFECTIVE PRODUCT RETURNS
Returns of defective Products will be processed through return processing
centers and consolidated for shipment weekly or biweekly to Vendor by
Reseller. Returns of defective Products will be paid for by Vendor when
Vendor-authorized carriers are used. Return shipment charges via
unauthorized carriers and all customs or brokers' fees are the
responsibility of Reseller. Vendor reserves the right to charge back to
Reseller shipping charges incurred on those Products that were not at any
point resold to Customers but were returned as defective and no fault was
found. Incomplete Product returns will be accepted less the value of the
missing components.
Reseller will be in material breach of this Agreement if it returns
Products as "defective" to Vendor when Reseller has not at any point
resold such Products to Customers, except that Reseller may return
Products that were not at any point resold to Customers that are in fact
"defective."
5. RESELLER'S OBLIGATIONS
5.1 MARKETING DEVELOPMENT. Reseller will aggressively market and
advertise the Products consistent with Reseller's marketing plans
and strategies. So long as Reseller is in compliance with this
Agreement, Reseller may participate in Vendor's Marketing program.
5.2 INVENTORY/SALES INFORMATION. Reseller will be required to provide
sell- through and inventory information for all inventory
locations via an electronic link such as EDI or other standard
data transfer and exchange method. The method must be agreed to in
advance by Reseller and Vendor.
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5.3 RESELLER COVENANTS. Reseller will:
(i) conduct business in a manner that reflects favorably at all
times on Products and the good name, goodwill,and reputation
of Vendor;
(ii) avoid deceptive, misleading, or unethical practices that are
or might be detrimental to Vendor or Vendor's Products;
(iii) make no false or misleading representations with regard to
Vendor or Vendor's Products;
(iv) not publish or employ, or cooperate in the publication or
employment of, any misleading or deceptive advertising
material with regard to Vendor or Vendor's Products; and
(v) make no representations, warranties, or guarantees to
customers or to the trade with respect to the specifications
, features, or capabilities of Vendor's Products that are
inconsistent with the literature distributed by Vendor.
5.4 USE OF TRADEMARKS AND PROPRIETARY NOTICES. During the term of this
Agreement, Reseller may use the trademarks, trade names, logos,
and designations used by Vendor for Vendor's Products solely in
connection with Reseller's advertisement and promotion of Vendor's
Products, in accordance with Vendor's then-current trademark usage
policies. Reseller shall not remove or destroy any copyright
notices, trademarks, or other proprietary markings on the
Products, documentation, or other materials related to the
Products. Upon termination of this Agreement Reseller may continue
to advertise and promote the Products using Vendor's trademarks
and trade names until inventory depletion. Vendor may not use
Reseller's trade names, trademarks, or service marks without first
obtaining Reseller's express approval.
6. TERM AND TERMINATION
6.1 TERM. This Agreement shall commence on the Effective Date and
continue for twelve (12) months thereafter unless terminated
earlier as provided herein.
6.2 TERMINATION WITHOUT CAUSE. Reseller or Vendor may terminate this
Agreement without cause, at any time, by written notice to the
other party not less than thirty (30) days prior to the effective
date of termination. All unfilled orders pending at the time of
the date of such notice of termination shall be deemed canceled,
and Vendor and Reseller hereby waive all claims against the other
in connection with the cancellation of such orders.
6.3 TERMINATION FOR BREACH. Vendor may terminate this Agreement,
for cause, by written notice to Reseller not less than ten (10)
days prior to the effective date of such notice in the event that:
(i) Reseller fails to pay past due invoices within thirty (30)
days after notice that invoices are past due;
(ii) Reseller fails to resolve and remove from Vendor
unauthorized debits after a remedy period of fifteen (15)
business days from date of debit;
(iii) Reseller violates any other material provision of this
Agreement; or
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(iv) control of Reseller is acquired, directly or indirectly, by
a third party, or Reseller is merged with a third party.
Upon giving its notice of termination, Vendor may alter its
terms of sale, including credit terms, and take such other
action as may be consistent with the termination of Reseller
as an authorized Vendor Reseller.
6.4 TERMINATION FOR INSOLVENCY. At the option of Vendor or Reseller,
this Agreement shall terminate immediately if:
(i) a receiver is appointed for the other party or its property;
(ii) the other party becomes insolvent or unable to pay its
debts as they mature or ceases to pay its debts as they
mature in the ordinary course of business, or makes an
assignment for the benefit of creditors;
(iii) any proceedings are commenced by or for the other party
under any bankruptcy, insolvency, or debtors' relief law;
(iv) any proceedings are commenced against the other party under
any bankruptcy insolvency or debtor's relief law, and such
proceedings have not been vacated or set aside within sixty
(60) days from the date of commencement thereof; or
(v) the other party commences to dissolve under applicable
corporate law statutes.
6.5 TERMINATION/EXPIRATION ACCOUNTING. All amounts payable by Reseller
to Vendor shall survive termination and become immediately due and
payable. In addition, Vendor shall have the right to repurchase
unsold Products in Reseller's inventory. Within ten (10) days
following termination, Reseller shall furnish Vendor with an
inventory of unsold Products. Within ten (10) days after receipt
of such inventory, Vendor shall notify Reseller in writing whether
or not Vendor intends to repurchase from Reseller all or part of
such inventory at the original invoice price (less discounts,
price protection, or other credits previously granted). Vendor
shall pay all transportation and other costs connected with
shipping such Products to Vendor.
7. WARRANTY
7.1 CUSTOMER WARRANTY. Vendor provides a Limited Warranty Statement to
Customers. Reseller will make available to Customers a copy of the
Limited Warranty Statement and will not make any representations
or statements inconsistent with such Limited Warranty Statement.
Reseller shall have the right to return at Vendor's expense and
for full credit (if there are sufficient funds to offset) or
refund of the purchase price any products for which the sale is
prohibited by applicable local, state, or federal law, ordinance,
rule, or regulation.
7.2 EXPRESS DISCLAIMER. VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS
AS TO THE PRODUCTS, EXCEPT AS SET FORTH ABOVE. ALL IMPLIED
WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT, ARE HEREBY DISCLAIMED.
8. LIMITATION OF LIABILITY
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THE LIABILITY OF VENDOR AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE SUPPLY OF PRODUCTS HEREUNDER SHALL BE LIMITED TO
THE ACTUAL AMOUNTS PAID BY RESELLER TO VENDOR FOR THE PRODUCTS GIVING
RISE TO SUCH DAMAGES, AND SHALL IN NO EVENT INCLUDE LOSS OF PROFITS, COST
OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL, INDIRECT,
OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF VENDOR OR ITS SUPPLIER IS
AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9. CONFIDENTIALITY
The parties agree to maintain the confidentiality of information relating
to products, sales data, and other business information shared by the
parties and not generally known to the public, as set forth in the
Nondisclosure Agreement executed by the parties on April 10, 2009, which
is incorporated herein by reference.
10. GENERAL
10.1 ASSIGNMENT. Neither party may assign, delegate, or transfer the
Agreement, or any of its rights or duties hereunder, without the
prior written consent of the other party. Any attempted assignment
or delegation in violation of this section shall be void. The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties, their successors, and permitted
assigns. Notwithstanding the foregoing, Vendor 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 Vendor.
10.2 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Nevada, excluding the United Nations Convention on
Contracts for the International Sale of Goods.
10.3 INDEPENDENT CONTRACTORS. In performing their respective duties
under this Agreement, each of the parties will be operating as an
independent contractor. Nothing contained herein will in any way
constitute any association, partnership, or joint venture between
the parties hereto, or be construed to evidence the intention of
the parties to establish any such relationship. Neither party will
have the power to bind the other party or incur obligations on the
other party's behalf without the other party's prior written
consent.
10.4 MODIFICATION AND WAIVER. No modification to this Agreement, nor
any waiver of any rights, will be effective unless assented to in
writing by the party to be charged, and the waiver of any breach
or default shall not constitute a waiver of any other right
hereunder or any subsequent breach or default.
10.5 NOTICES. Any required or permitted notices hereunder must be given
in writing at the address of each party set forth below, or to
such other address as either party may substitute by written
notice to the other in the manner contemplated herein, by one of
the following methods: hand delivery; registered, express, or
certified mail, return receipt requested, postage prepaid; or
nationally recognized private express courier. Notices will be
deemed given on the date received.
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RESELLER: Suite 112, Dom 1/1 Ul.Severny Proezd,
Pos. Leninskie Gorki,
Moscow, Russian Federation
VENDOR: 0 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
10.6 SEVERABILITY. If for any reason any provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid
or unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect.
10.7 LIMITATION OF ACTION. Any legal action arising out of this
Agreement shall be barred unless commenced within one (1) year of
the act or omission giving rise to the action. Such limitation
shall not apply to any actions asserted against Reseller by Vendor
arising from any delinquencies in payment for Products.
10.8 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto
constitute the entire and exclusive Agreement between the parties
hereto with respect to the subject matter hereof and supersede any
prior agreements between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective authorized representatives as of the Effective Date.
RESELLER: VENDOR:
/s/ Alexander Salomatkin /s/ Xxxxxx Xxxxxxx
------------------------ ------------------
Alexander Salomatkin Xxxxxx Xxxxxxx
Director President
Date: April 16, 2009 Date: April 16, 2009
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