Original Version: 02/09/2021. Updated: 10/11/2021.
BY ACCEPTING THIS AGREEMENT, USING THE SITE, PURCHASING PRODUCT, AND/OR WHOLESALING GAMECHANGER PRODUCTS, YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS BELOW.
1.1. In the Territory, Company has the non-exclusive right to market and distribute the Products to consumers (“Customers”) included on the then-current GameChanger Price List or if GameChanger has not promulgated a GameChanger Price List applicable to Company, GameChanger shall provide pricing to Company as needed for standard opportunities or on a per opportunity basis from time to time. The Products may be distributed through Company's online or retail sites, but may not be marketed or resold on Amazon or any similar marketplaces without the express written (including email) consent of GameChanger's CEO. The Products shall be subject to this Agreement, terms as set forth on www.gamechangerpatch.com (the “Site”), and for any manual orders not completed on the Site any quote for the sale of the Products (a “Quote”) exclusive of any boilerplate terms thereon, and any reciprocal purchase orders issued by Company (a “PO”) exclusive of any boilerplate terms thereon. In the event of a conflict between the foregoing terms and conditions, a signed copy of this Agreement shall control. Unless previously authorized by GameChanger in writing, Company will not offer any Products outside of the Territory. Company will purchase the Products for wholesale from GameChanger. For purposes of this Agreement, the “Territory” shall be the United States, Canada, and Mexico, and GameChanger and Company may agree to expand such list of countries by any writing approved by the CEO of GameChanger, including an email communication. Wholesaling and reselling shall have the same meaning and are limited to sales to consumers and any sales to downstream resellers are prohibited unless allowed in a writing signed by GameChanger’s CEO.
1.2. GameChanger reserves the right, in its sole discretion and without liability to Company, to add additional Products, change the list price for the Products (“List Price”), modify the Products, and discontinue the availability of any Product. Any addition or deletion from the list of Products or changes to List Prices will be indicated by a revision to the GameChanger price list located on the Site (“Price List”), and GameChanger will provide Company with thirty (30) days notice prior to the effective date of changes to the GameChanger Price List. Such notice shall be effectuated by the delivery of the new GameChanger Price List by GameChanger or its Distributors, as applicable.
1.3. GameChanger and Company are free to enter into similar agreements with others. Additionally, GameChanger reserves the right to make sales direct to end-users, inside or outside any Territory.
1.4. Company will acquire and distribute the Products as an independent wholesaler, at its own risk and expense. Company is solely responsible for the results achieved as a wholesaler of GameChanger and will unilaterally determine its own wholesale prices for Products. The List Price will be at a discounted rate based on annual sales volume from GameChanger’s MSRP in the Price List or the subsequent ordering document (Quote and/or PO) for such Product.
2.1. Company will be permitted to use the GameChanger logos and trademarks, subject to the provisions contained below and other agreements between the parties. The trademarks and trade names under which GameChanger markets the Products are the property of GameChanger or third parties. This Agreement gives Company no rights therein, except the restricted license to reproduce such trademarks and trade names subject to the trademark usage guidelines of GameChanger in any authorized reproduction of any Product, provided that GameChanger is referenced as the owner of the trade name or trademark. Company may not market the Product under any other or different name than those specified by GameChanger. Company agrees to maintain and respect the trademark, trade name and copyright notices of any Product in connection with its advertisement and distribution of such Products. Company agrees to include a reference to GameChanger in any advertisement for the Products, subject to GameChanger’s final approval of all such material.
2.2. Company agrees to promptly provide GameChanger, upon request, with any documentation (e.g., the document used for selling or advertising) that included the trademark(s) and the date and source of the publication in which the trademark(s) appeared.
2.3. All goodwill associated with or created by use of GameChanger’s trademarks and trade names will belong to GameChanger, and Company hereby assigns such goodwill to GameChanger. If Company uses any GameChanger trademarks or trade names in its domain name, on GameChanger’s demand, Company will assign all of its rights in such domain name to GameChanger.
2.4. Upon termination of this Agreement, Company will immediately cease use of all GameChanger-related trademarks, trade names, marks, symbols, logos or copyrights, for the purposes of wholesaling the Products unless permitted in other agreements or in writing in advance of such continued usage.
3. Order Placement and Payment.
3.1. Company will place an order on the Site with GameChanger prior to the wholesale of Products. Company will pay the fees specified on the Site or if the order is made offline then in a valid Quote for the Products (the “Order”). The PO, if required by Company, will state the GameChanger Product name, SKU, sales unit, and the name and address of the Customer if such is collected. Upon acceptance of the order, GameChanger will make the Products available to Company as stated on the order method. Offline purchases will be submitted to email@example.com after agreement between the parties allowing for offline purchases.
3.2. GameChanger will invoice Company for the amounts due pursuant to the Order where its offline or payment terms have been extended. The invoice may take a form of an Order document via email or automated response from the Site. Company will pay GameChanger invoices within the timeframe set forth thereon. Payments will be made as set forth on the Order documents. The currency will be U.S. Dollars, unless otherwise instructed. Taxes are not included in the pricing of Products. Except for taxes based on GameChanger’s net income, Company will pay all applicable sales, use, value-added, excise and any other taxes or customs duties resulting from the wholesale thereof. In the event Company furnishes a valid tax exemption certificate, GameChanger will honor such exemption in the next billing cycle.
4.1. For purposes of this Agreement, "Confidential Information" will mean any information and data of a confidential nature regardless of form, including but not limited to proprietary, technical, formulas, developmental, business plan, marketing, sales, operating, performance, cost, pricing, know-how, business and process information, and all record-bearing media containing or disclosing such information and techniques, which is disclosed by one party to this Agreement ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information will not include information that is (a) developed independently by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; (b) obtained from a source other than the Disclosing Party through no breach of confidence by the Receiving Party; (c) in the public domain when received or thereafter enters the public domain through no fault of the Receiving Party; (d) provided by the Disclosing Party without restriction; or (e) disclosed by the Receiving Party pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided that the Receiving Party has notified the Disclosing Party in order to permit the taking of appropriate protective measures. Note the formulas and methods regarding GameChanger’s Products have been patented and any Confidential Information included in such filings shall not be non-confidential simply by inclusion therein.
4.2. The parties agree to hold each other's Confidential Information in strict confidence and not to disclose it to any third party without the prior written consent of the Disclosing Party. The parties agree to use such Confidential Information of the Disclosing Party only as it relates to the performance of the party’s obligations under this Agreement. Further, the Receiving Party will use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party, but in no event less than reasonable care.
4.3. The parties agree that, in the event of any breach of this Section 4 (Confidentiality) by the Receiving Party, in addition to any other right that the Disclosing Party may have under this Agreement or otherwise in law or in equity, the Disclosing Party will have the right to seek injunctive relief against continuing or further breach by the Receiving Party, without the necessity of proof of actual damages.
5. Performance. Company agrees to achieve and maintain the reasonable sales education requirements mutually agreed upon by the parties, if any. To the extent that Company elects to participate in any marketing and incentive programs (“Rebates”), which GameChanger may offer from time to time, Company agrees to comply with all specified requirements of such Rebates. GameChanger reserves the right to terminate or modify Rebates at any time at its sole discretion and will provide ninety (90) days prior notice thereof. Company agrees to report to GameChanger such sales information upon which GameChanger and Company from time to time mutually agree.
6. Term and Termination. This Agreement will continue until terminated by one of the parties. Either GameChanger or Company may terminate the Agreement without cause upon thirty (30) days prior written notice to the other party, provided that all orders previously placed will be honored and fulfilled. Subject to the exception provided in paragraph 10.5 below, either GameChanger or Company may terminate the Agreement for default if one party breaches a provision of the Agreement and the breach is not cured within thirty (30) days of being notified of the breach. Upon termination of this Agreement, all interest that Company may have in accrued marketing development funds (“MDF”), if any, or Rebates for which no claim has been filed will automatically lapse unless Company makes a claim therefor within ninety (90) days after the termination or expiration date of this Agreement.
7. Audit and Record Keeping. During the term of the Agreement and for one (1) year after the termination date of this Agreement, all books and records of Company and GameChanger, including without limitation any computer and electromagnetic records, relating to the this Agreement, will, on demand, be open to electronic inspection, audit and copying by the party making a reasonable request therefor during normal working hours. The parties will maintain appropriate distribution records by Product and will cooperate in the event of any recall or corrective action regarding the Products.
8. Indemnification/Limitation of Liability.
8.1. COMPANY WILL INDEMNIFY, HOLD HARMLESS AND, UPON GAMECHANGER’S REQUEST, DEFEND GAMECHANGER AGAINST ANY THIRD PARTY CLAIMS, LIABILITIES AND EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS' FEES) DIRECTLY ARISING FROM OR RELATED TO COMPANY’S EMPLOYEES OR AGENTS PROVISION OF WARRANTIES OR CONTRACTUAL RIGHTS TO CUSTOMERS IN EXCESS OF OR GREATER THAN THOSE SET FORTH ON GAMECHANGER’S SITE. COMPANY’S INDEMNIFICATION OBLIGATION IS SUBJECT TO: (A) GAMECHANGER PROVIDING COMPANY WITH PROMPT WRITTEN NOTICE OF ANY CLAIM OR LAWSUIT, (B) COMPANY HAVING SOLE CONTROL OF THE DEFENSE AND ALL NEGOTIATIONS FOR SETTLEMENT OR COMPROMISE THEREOF AND (C) GAMECHANGER REASONABLY COOPERATING IN THE DEFENSE OF SUCH CLAIM OR LAWSUIT. COMPANY AGREES TO PAY ALL SETTLEMENTS ENTERED INTO BY COMPANY, JUDGMENTS FINALLY AWARDED AGAINST GAMECHANGER, AND ALL ATTORNEYS’ FEES AND EXPENSES FOR COUNSEL HIRED BY GAMECHANGER, EXCLUSIVE OF THOSE IN THE FOLLOWING SENTENCE. GAMECHANGER MAY ELECT TO PARTICIPATE IN ANY SUCH ACTION WITH COUNSEL OF ITS OWN CHOICE AND EXPENSE.
8.2. GAMECHANGER WILL INDEMNIFY, DEFEND, AND HOLD COMPANY HARMLESS FROM ALL THIRD PARTY CLAIMS, LIABILITIES AND EXPENSES, WHICH ARE CAUSED BY: (I) THE PRODUCT’S INFRINGEMENT OF A COPYRIGHT, TRADEMARK OR PATENT OF SUCH THIRD PARTY UNDER THE LAWS OF THE COUNTRIES IN THE TERRITORY; OR (II) THE PRODUCT’S ACTUAL CAUSE OF DISABILITY, DEATH, OR LASTING PHYSICAL INJURY OF SUCH THIRD PARTY. GAMECHANGER’S INDEMNIFICATION OBLIGATION IS SUBJECT TO: (A) COMPANY PROVIDING GAMECHANGER WITH PROMPT WRITTEN NOTICE OF ANY CLAIM OR LAWSUIT, (B) GAMECHANGER HAVING SOLE CONTROL OF THE DEFENSE AND ALL NEGOTIATIONS FOR SETTLEMENT OR COMPROMISE THEREOF AND (C) COMPANY REASONABLY COOPERATING IN THE DEFENSE OF SUCH CLAIM OR LAWSUIT. GAMECHANGER AGREES TO PAY ALL SETTLEMENTS ENTERED INTO BY GAMECHANGER, JUDGMENTS FINALLY AWARDED AGAINST COMPANY, AND ALL ATTORNEYS’ FEES AND EXPENSES FOR COUNSEL HIRED BY GAMECHANGER. COMPANY MAY ELECT TO PARTICIPATE IN ANY SUCH ACTION WITH COUNSEL OF ITS OWN CHOICE AND EXPENSE. GAMECHANGER WILL HAVE NO LIABILITY IF THE ALLEGED INFRINGEMENT IS BASED UPON: (I) A COMBINATION OF NON-GAMECHANGER PRODUCTS BY COMPANY; OR (II) USE FOR A PURPOSE OR IN A MANNER NOT PROSCRIBED BY GAMECHANGER AND DIRECTED BY COMPANY.
8.3. OTHER THAN A PARTY’S OBLIGATIONS OF INDEMNITY OR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST COMPANY BY ANY OTHER PARTY, (II) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES IN EXCESS OF THE CUMULATIVE AMOUNT OF GAMECHANGER PRODUCTS PURCHASED BY COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT CAUSING THE DAMAGES, OR (III) A PARTY BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY THE OTHER PARTY, INCLUDING ANY AGENT, DISTRIBUTOR, OR DEALER OF A PARTY OR OTHER PERSON OR, IF APPLICABLE, ENTITY IN THE DISTRIBUTION CHAIN.
9.1. All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), will be in writing and will be deemed delivered upon the earlier of (a) receipt if delivered by hand, (b) on the delivery date if delivered by electronic mail, (c) one (1) business day after being given to an express, overnight courier with a system for tracking delivery, or 4 days after the date of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage pre paid, to the address on the first page of this Agreement. All routine operational notices will be sent to the individuals identified on the first page of this Agreement.
10.1. Company is an independent contractor. Neither GameChanger nor Company is a legal representative, agent, partner, employee, joint venturer, or franchisee of the other, nor does the Agreement create a joint venture between GameChanger and Company. Neither GameChanger nor Company will assume or create any obligations on behalf of the other or make any representations or warranties about the other, other than those authorized in writing by an authorized signatory of the other party.
10.2. Neither party will bring a legal action against the other more than two years after the cause of action arises, unless otherwise provided by local law without the possibility of contractual waiver.
10.3. Failure by either party to insist on strict performance or failure to exercise a right when entitled does not prevent either from doing so at a later time, either in relation to that default or any subsequent one.
10.4. Neither party will assign or otherwise transfer this Agreement, its rights under it, or any of its authorizations or duties, without the other party’s prior written consent, provided that this provision shall not require consent for corporate restructuring activities unless it involves an acquisition by a competitor.
10.5. Company agrees not take any actions whatsoever to wrongfully influence any decisions in its or GameChanger’s favor, either directly or indirectly. Company further agrees to comply with all applicable anti-bribery and anti-corruption laws, including but not limited to the United States Foreign Corrupt Practices Act ("FCPA") and the United Kingdom’s Anti-Bribery Act, which specifically prohibit the offering, paying, transfer or promising to pay anything of value, directly or indirectly, to any non-US government official (which includes officers of a foreign government, persons officially acting on behalf of a foreign government, employees of a government corporation, officials of a political party; and candidates for political office), to assist in obtaining or retaining business, or to secure an improper advantage over competitors. It is the intent of the parties that no payments or transfers of value will be made which has the purpose or effect of bribery, extortion, kickbacks or other unlawful means of obtaining business. The parties acknowledge and agree that in the event that GameChanger believes, in good faith, that Company has breached this section, GameChanger will have the right to immediately terminate any or all agreements between GameChanger and Company.
10.6. The parties will comply with all applicable privacy laws for the collection, use and disclosure of personal information about individuals and will obtain any required consents with respect to same. The parties will comply with all applicable state or federal laws concerning unsolicited email and all state and federal laws that are applicable to the business they transact. To the extent that Company handles any Product or prepares it for shipment, Company will comply with all state and federal laws related to product labeling.
10.7. Neither party is responsible for failure to fulfill its obligations under this Agreement due to causes resulting from a force majeure event. Notwithstanding the foregoing, a party’s obligation to pay shall not be avoidable by operation of this Section 10.7 once such obligation is due and owing.
10.8. This Agreement will be governed by the laws of the State of Texas without regard to its conflict of laws provisions. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Jurisdiction lies solely in Dallas County, Texas.
10.9. The terms of paragraphs 3, 6, 7, 10.2, 10.6 and 10.8 will survive termination of this Agreement.