This Online Distribution and Resale Agreement (this “Agreement”), which may be amended from time to time without notice, is binding upon Seller (as defined below) for the benefit of Onsite PRO, Inc., a California corporation (“OnSite”).
WHEREAS, OnSite manufactures and sells the Products (as defined below);
WHEREAS, Seller is in the business of distributing and/or reselling said Products; and
WHEREAS, Seller acknowledges that the Products are patented and subject to certain resale restrictions within the Territory (as defined below) regarding the scope and manner of such sale.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller acknowledges, accepts, and agrees to comply with, the following:
a. “Affiliate” means(i) an entity that directly or indirectly, through one or more or no intermediaries,is owned in part by Seller, or (ii) an entity or individual that directly or indirectly, through any intermediary or otherwise, is controlled by Seller. The term “control” means the direct or indirect power to direct or cause the direction of the actions of the entity or individual.
b. “Customer” means an individual or entity located within the Territory that purchases the Product (i) for his, her, or its own personal or internal use such as, for example, a commercial property owner or homeowner (“End User(s)”) or (ii) that provides plumbing services to an End User or installs the Product during the performance of such services at an End User’s property such as, for example, a plumber or plumbing company.
c. “Product(s)” means any and all products presently, or to be, sold by OnSite, including, without limitation, the following kits and/or water sensors: FS14C, FS38C, FS38CD, FS12NPT, FS12NPT-SS, FS34C, FS34NPT, FS34NPT-SS, FS34P, FS1NPT, FS125NPT, FS150NPT, FS34H, FS34H90, FS34NPT-W, FS1NPT-W, FS125NPT-W, FS150NPT-W, XS-01, XS-02, WSM-02, and Wireless Kit.
d. “MAP” means the minimum price that OnSite requires Seller to sell any Product, which price may be amended from time to time in writing by OnSite.
e. “Permitted Sale(s)” means the sale of a Product by Seller to a Customer or another Seller within the Territory online, unless a specific online platform is identified on the Product packaging in which case the sale of such Product shall be limited to the online platform identified.
f. “Prohibited Sale(s)” means the direct or indirect sale of a Product by Seller or any Affiliate thereof within the Territory: to or through a physical retail store Seller, or, in the event that a specific online platform is identified on the Product packaging, to or through an online platform that is not identified on the Product packaging; that does not constitute a Permitted Sale; or any sale to a Customer below the MAP.
g. “Seller” means any entity or individual that sells the Products within the distribution chain including, without limitation, a broker, distributor, wholesaler, supplier, reseller, and/or retailer.
h. “Territory” means the continental United States of America and all of its territories, unless identified otherwise on the Product packaging.
2. Non-Exclusive Appointment. Unless expressly agreed to otherwise in writing, OnSite hereby appoints Seller, and Seller hereby accepts said appointment, to act as a non-exclusive Seller of the Products online. Seller agrees to engage in only Permitted Sales of the Products subject to the terms and conditions of this Agreement. OnSite may in its sole and absolute discretion sell the Products to any other person, including, without limitation, any other broker, distributor, wholesaler, reseller, retailer, and/or Customer within or outside of the Territory.
3. Term. The term of this Agreement shall apply to each individual Product ordered by Seller. The term shall start upon receipt of each individual Product by Seller, and continue until all the Products received by, and within the possession of, Seller are sold or returned (“Term”).
4. Right to Accept or Reject Returns. Within five (5) business days of receipt of a returned Product, OnSite or any respective supplier of Seller may accept or reject the return of any Product not subject to a warranty claim, if the packaging on the Product has not been opened or materially tampered with, or that is deemed, in OnSite’s sole and absolutely discretion, to be too damaged to resell or not in the condition delivered to Seller.
5. Shipment and Delivery. Seller shall pay the cost of delivery and assume the risk o damage for any returned Product that is not subject to a warranty claim. OnSite shall pay cost of delivery and risk of damage for any returned Product that is subject to a warranty claim.
6. Trademark License Grant. During the Term of this Agreement, OnSite grants to Seller a revocable, non-exclusive, non-transferable, non-assignable, and non-sublicensable license within the Territory in connection with the Permitted Sales of the Products to use OnSite’s trademark(s) and/or service mark(s) whether registered or unregistered solely to promote and facilitate the sale of the Products. Upon expiration of the Term or revocation in writing of the aforementioned license, Seller’s rights under this Section shall immediately cease. Seller agrees that a Prohibited Sale of a Product shall be deemed not only a violation of this Agreement, but also an infringement of OnSite’s trademark and other intellectual property rights.
7. Resale Price and MAP Forwarding. Seller shall only sell the Products to Customers in accordance with the MAP. Each Seller that sells the Product to a subsequent Seller that resells the Product (“Reseller”) shall be responsible for forwarding the MAP or any amendment thereto to the Reseller. Any Seller that fails to adhere to this Section 7 shall indemnify and hold harmless each Reseller down the distribution chain for any violation of this Agreement arising from and/or relating to Seller’s failure to adhere to this Section 7 up to the liquidated damages amount set forth in Section 15 below for each violation of each Reseller, plus attorneys’ fees incurred thereby.
8. Audit and Inspection Rights. In the event of any violation of this Agreement as determined in OnSite’s sole and absolute discretion, OnSite or its representatives or agents, may at OnSite’s own expense reasonably inspect Seller’s facility to audit Seller’s books, records, other documents, and inventory as necessary to verify compliance with the terms and conditions of this Agreement.
9. Confidential Information. Subject to Section 8 of this Agreement, all non-public, confidential, or proprietary information obtained by Seller related to OnSite’s Products, including, but not limited to, any trade secrets as defined under either the California Uniform Trade Secrets Act or the federal Defend Trade Secrets Act, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, whether or not marked, designated, or otherwise identified as “confidential,” shall be deemed confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by an executive officer of OnSite in a signed writing. Upon OnSite’s request, Seller shall promptly return all documents and other materials received from OnSite. OnSite shall be entitled to injunctive relief by ex parte application without the necessity of posting a bond for any violation of this Section. This Section shall not apply to information that is:
b. rightfully obtained by Seller on a non-confidential basis from a third party.
10. One (1) Limited Product Warranty; Disclaimer. OnSite warrants that each component part of each Product shall be free from defects and that each Product will function as advertised by OnSite, not any representative or agent thereof, under normal use and conditions (“Warranty”) for a period of one (1) year from the date of purchase by a Customer (“Warranty Period”). If during the Warranty Period a Product is deemed defective, OnSite, at its option, shall repair or replace the defective Product. All costs of removal and installation of a Product and/or warrantied parts thereof, are the responsibility of the Customer. OnSite shall not be liable for incidental, consequential, special or punitive damages arising from or relating to the use of a Product. In states where the exclusion or limitation of such damages is prohibited, such exclusion shall apply to the maximum extent permitted by law. Any Prohibited Sale, or damage to a Product as a result of misuse, abuse, neglect, accident, improper installation, or any use violating the instructional manual furnished by OnSite, will render this Warranty void. This Warranty also does not cover damages or loss caused by defective parts in a Product, and the Customer’s use of, or failure to return, the Product within thirty (30) days of receipt shall be deemed an acceptance and understanding that the Product is only intended to be used to mitigate loss by reducing the risk of water damage; this Warranty is not a guarantee that no water or related damage will result nor an insurance policy therefor, and OnSite expressly disclaims any such representation.
11. OnSite shall have no obligation under the Warranty set forth above if Seller or a Customer:
b. uses, misuses, or neglects a subject Product in a manner inconsistent with said Product’s specifications or use or maintenance directions;
c. modifies a subject Product, or improperly installs, handles or maintains such Product; or
d. damages a subject Product prior to or during its use.
12. Seller shall not service, repair, modify, alter, replace, reverse engineer, or otherwise change any Product that it sells. Seller shall not provide its own warranty regarding any Product.
13. Indemnification. Subject to the terms and conditions of this Agreement, Seller shall defend, indemnify and hold harmless OnSite and its officers, directors, partners, managers, members, shareholders, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, and the cost of enforcing any right to indemnification under this Agreement resulting from any claim against OnSite arising out of and/or relating to:
a. Seller’s acts or omissions regarding the sale of any Product, including breach of this Agreement;
c. any failure by Seller or its personnel to comply with any applicable laws;
d. any mishandling of any Product by Seller thereby causing or exacerbating any damage upon a Customer; or
e. allegations that Seller breached its agreement with any third party.
14. Limitation of Liability. ONSITE’S AGGREGATE LIABILITY FOR EACH CLAIM AND/OR RELATED CLAIM WHETHER SAID CLAIM AND/OR RELATED CLAIM CONTAINS ONE OR MULTIPLE CAUSES OF ACTION ARISING OUT OF AND/OR RELATED TO THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED THEREBY, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE MAP VALUE OF THE SUBJECT PRODUCT UPON WHICH THE CLAIM AND/OR RELATED CLAIM IS MADE; PROVIDED, THE CLAIMANT ESTABLISHES DAMAGES IN THE FOREGOING AMOUNT.
15. Liquidated Damages. SELLER AGREES THAT IF IT, HE, OR SHE DIRECTLY OR INDIRECTLY CAUSES OR ENGAGES IN THE PROHIBITED SALE OF A PRODUCT IN BREACH OF THIS AGREEMENT, THE DAMAGE TO ONSITE WILL BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, SUCH DAMAGES INCLUDING, BUT NOT BEING LIMITED TO, DAMAGE TO IT’S BRAND AND TRADEMARK, THE COST OF NEGOTIATING AND DRAFTING THIS AGREEMENT, OPPORTUNITY COSTS, INTERFERENCE WITH BUSINESS CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. SELLER, THEREFORE, AGREES THAT SHOULD SELLER DIRECTLY OR INDIRECTLY CAUSE OR ENGAGE IN ANY PROHIBITED SALE, SELLER SHALL PAY ONSITE ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) FOR THE DIRECT OR INDIRECT PROHIBITED SALE OF EACH PRODUCT SOLD IN VIOLATION OF THIS AGREEMENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO ONSITE PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
16. Entire Agreement. This Agreement, the MAP, and/or any orders related to the transactions con