WHOLESALE TERMS AND CONDITIONS
Reseller / Applicant (“Reseller”) agrees with TDS Management, Inc. (d/b/a SA Fishing, SA Co., and SA Team) (collectively, “SA”) as follows:
1. SA requires its wholesalers to have a minimum initial order of 100 units, with minimum reorder of 50 units for all subsequent wholesale orders.
2. No SA goods, products and/or apparel (“SA Goods”) shall be resold by or through any on-line auction or online store (such as Ebay, Amazon or other similar sites) other than Reseller’s on-line store without the prior express, written authorization of SA. All online marketplace/stores to be used by Reseller in the resale of SA Goods must be owned and/or controlled by the Reseller and be approved by SA in advance.
3. Reseller must require any person or entity to whom Reseller distributes SA Goods for resale to strictly adhere to the terms, conditions and guidelines as set forth in this Agreement.
4. All orders must be pre-paid. SA accepts credit card payments solely online via its website www.safishing.com.
5. All products come pre-packaged and ready for resale to Reseller’s customers.
6. Reseller agrees to provide SA notice in writing of any nonconforming or defective SA Good within thirty (30) business days from Reseller’s receipt of the nonconforming or defective SA Good. Failure to notify SA of such nonconforming or defective SA Good within the time allotted herein will be deemed an acceptance of the SA Goods and a waiver of Reseller’s rights to reject them. SA has the right to refuse or deny any refund, in whole or in part, if any of the SA Goods are lost or damaged or is otherwise defective through no fault of SA. Reseller’s sole remedy for breach of this agreement or otherwise, is for either SA to replace the nonconforming or defective SA Good(s) or for SA to issue a refund of the nonconforming or defective SA Good(s) upon SA’s receipt of the nonconforming or defective SA Goods.
7. Reseller shall have a revocable, non-exclusive license to sell SA products and/or apparel (“SA Goods”) anywhere to anyone, provided Reseller complies with the terms and conditions of this Agreement. Solely in connection with Reseller selling SA Goods purchased directly from SA, SA grants to Reseller a non-exclusive, non-assignable, non-divisible, limited license to use any SA brand name and/or logo associated with the SA Goods and any SA artwork or photographs appearing on SA’s websites that SA also uses to market or sell the SA Goods. This limited license is revocable by SA at any time, and is also provided as follows: (a) Reseller acknowledges and agrees that at all times SA retains all ownership, rights, title and interest worldwide in and to its artwork and photographs, any all copyrights therefore, that are used by Reseller under this limited license; (b) Reseller acknowledges and agrees that at all times SA retains all ownership, rights, title and interest worldwide in and to its trademarks, service marks, logos and trade names, including any goodwill associated thereto, that are used by Reseller under this limited license; (c) Reseller acknowledges and agrees that any use of any of SA’s marks licensed herein by Reseller shall inure to the sole benefit of SA; (d) Reseller acknowledges and agrees not to take any action that is inconsistent with SA’s ownership of the above noted copyrights and marks. Reseller agrees that at no time shall it ever directly or indirectly contest, challenge, raise any objections to the validity of, or attack SA’s ownership, title to, rights in, or interest in any of the licensed trademarks, copyrights, artwork, photographs, logos, etc; (e) Reseller agrees never to file any application for any mark or copyright registration, or obtain or attempt to obtain ownership of any mark, trade name or copyright, in any country of the world, in any state of the United States or in any other jurisdiction or with any other agency, for any of the licensed marks, copyrights, artwork, photographs, etc. or any other marks, artwork, photographs, etc. of SA alone or in combination with other marks, indicia, images, artwork, etc. Reseller agrees not to assist or cause another to seek registration of any of the SA’s marks or copyrighted works, nor shall Reseller perform any action to interfere or cause or assist another to interfere with SA’s ability to obtain registration of one or more of its marks in any jurisdiction throughout the world; (f) Reseller agrees not to alter, modify or enhance any of SA artwork or photographs used by Reseller under this limited license. Reseller also agrees not to create any derivative works from any SA artwork or photographs provided under this limited license, or remove or alter any of SA’s marks or logos from any of the artwork, photographs or products; (g) Reseller agrees not to use any of the licensed artwork, photographs and/or trademarks of SA in connection with the sale or advertisement of non-SA products or SA products not purchased directly from SA; (h) Reseller agrees not to use any other trademark or service mark in connection or in combination with any of the licensed SA trademarks or service marks; (i) Reseller agrees not to adopt any trademark, trade name or service mark which is confusingly similar to any mark or trade name used by SA; (j) Upon revocation of this limited license by SA, Reseller agrees to immediately cease all further use of the marks, artwork, photographs or any other materials of SA except to sell off any SA product in Reseller’s inventory that was purchased directly from SA by Reseller; (k) All SA products sold by Reseller must bear all original SA marks, logos, artwork, etc. unaltered, as originally provided on such products and no other marks, whether Reseller’s or another’s, shall be added to or on the products; (l) All Marketing Materials, and all packaging, labels, and other materials used by Reseller in connection with the advertising, marketing and sale of products purchased directly from SA by Reseller, shall make reference only to the SA trademark associated with the product and shall not include any other brands, endorsements, trademarks, service marks, trade names or logotypes, other than Reseller’s own corporate identifiers as reasonably appropriate to identify Reseller as the retail seller of the products. For the avoidance of doubt, co-branding is not permitted without SA’s prior written approval, which can be withheld by SA for any reason; and (m) Reseller’s obligations contained herein survive termination, revocation or expiration of the above-noted limited license.
8. This Agreement may be terminated by either party without prior notice at any time and for any reason
9. SA makes no warranties, express or implied. SA shall not be liable for any incidental or consequential damages for breach of any express or implied warranty on any SA Goods. SA further disclaims any implied warranty of merchantability or fitness for a particular purpose of the SA Goods or any part thereof, and any warranty of non-infringement of intellectual property rights. This provision shall survive termination of the Agreement.
10. Reseller agrees that any violation by the Reseller of any intellectual property right owned or held by SA would cause irreparable harm to SA and that damages at law would be inadequate to compensate SA for such violation. Reseller agrees that, in the event of any such violation, SA will be entitled to preliminary and permanent injunctive relief, without the necessity of posting bond, to enjoin any such violation, in addition to any other remedy which SA may have at law, in equity, or otherwise. No remedy conferred upon SA pursuant to this Agreement is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given pursuant to this Agreement or now or hereafter existing at law or in equity or by statute or otherwise.
11. Reseller agrees that SA shall not be liable beyond the remedies set forth herein, or for lost profits, loss of business or other consequential, special, indirect or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party except as expressly provided herein.
12. Reseller agrees to indemnify, defend, and hold harmless SA and its officers, directors, employees, agents, attorneys, licensors and suppliers from and against any and all claims, lawsuits, suits, debts, dues, demands, accounts, losses, expenses, damages and costs, including reasonable attorneys’ fees and costs, resulting from or caused, directly or indirectly by any breach or violation of this Agreement and any negligent, intentional or other wrongful act by Reseller.
13. This Agreement contains the complete agreement of SA and the Reseller with respect to the subject matter herein and supersedes any prior agreements or understandings, whether oral or written, between SA and the Reseller with respect to such subject matter.
14. This Agreement may not be altered, supplemented, or amended by the use of any Reseller document(s). Any attempt by Reseller to alter, supplement or amend these terms and conditions or to enter an order for SA Good(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both SA and Reseller. SA reserves the right to amend its terms and conditions from time to time with such amendments to apply to all orders received on or after the time of posting the amendments on SA’s website.
15. The terms and provisions of this Agreement will inure to the benefit of and be binding upon SA and its successors and assigns, and upon the Reseller and the Reseller’s officers, directors, agents, employees, affiliates, successors and assigns.
16. No failure or delay by SA in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
17. All notices and communications made in connection with this Agreement will be in writing and delivered by electronic mail (e-mail) and sent to the e-mail addresses provided by the Parties. Notice shall be deemed to have been given on the date the e-mail is sent.
18. This Agreement will be governed by, and interpreted and enforced according to, the laws of the State of Florida, excluding the application of its conflicts or choice of law provisions.
19. In any legal action or other proceeding is brought for the enforcement of this Agreement, the successful or prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses, including, but not limited to, all attorneys’ fees, costs and expenses incident to arbitration, appellate, and postjudgment proceedings incurred by the prevailing party.
20. The Reseller: (a) submits to personal jurisdiction in Palm Beach or Broward County in the State of Florida for the enforcement of this Agreement; and (b) waives any and all rights under the law of any jurisdiction to object to jurisdiction therein for the purposes of enforcing this Agreement. Any action to enforce any term or provision in this Agreement shall be filed in Broward or Palm Beach County, Florida state or federal court, as appropriate. However, nothing contained in this Agreement prevents SA from bringing any litigation or otherwise exercising any rights against the Reseller in any other jurisdiction.
21. The term “SA” as used in this Agreement will be deemed to include its successors and assigns any and all subsidiaries or affiliates thereof. Reseller agrees that each entity included within the definition of SA will be deemed a third party beneficiary under this Agreement and each such third party beneficiary will have the right to enforce the provisions of this Agreement directly against the Employee, to the extent that the interests of such entity are adversely affected by the Employee’s violation of this Agreement.
22. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
23. Reseller represents that it has entered into this Agreement voluntarily and without any duress or undue influence on the Reseller, and the Reseller is not relying on any inducements, promises, statements, or representations made by SA or any of its officers, employees, agents, or attorneys other than as expressly set forth in this Agreement.