THIS INTERNET RESELLER AGREEMENT (the "Agreement") is made effective the date of its execution (the "Effective Date"), by and between Doskocil Manufacturing Company, Inc. d/b/a Petmate, with principal offices at 2300 E Randol Mill Rd, Arlington, TX 76011 ("Petmate"), and the authorized Internet reseller that has executed this Agreement ("Reseller"). Petmate and Reseller are each sometimes referred to herein as a "party" or collectively as the "parties." The parties agree as follows:
Petmate grants to the Reseller and the Reseller accepts the non-exclusive right to fulfill orders and to market, sell, and distribute the Products to End-Users located in the Territory only in brick and mortar locations and on the Internet URL locations listed in the then-current Internet Reseller Profile attached hereto as Schedule B and approved by Petmate.
Reseller, ONLY if listed and approved by Petmate in Schedule B, shall be allowed to sell or advertise Products on certain approved third-party Internet marketplaces under certain approved names.
Reseller shall not knowingly transship the Products. Specifically, Reseller shall not sell or transfer any of the Products to any person or entity for resale. Reseller agrees to restrict, cease, or limit the sale of Products to anyone at the request of Petmate. Reseller shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Petmate that Reseller purchased or obtained from a source other than directly from Petmate or a Petmate Authorized Wholesaler. Reseller shall not obscure or alter any Product or its packaging in any fashion.
Reseller may only sell and advertise for sale the Products within the Territory. Petmate hereby expressly prohibits the Reseller from soliciting or consummating sales outside the Territory.
Unless approved in writing by Petmate, Reseller shall not cause or allow the Products to be sold anywhere or in any manner, including a third-party Internet marketplace, where the Reseller is unable to certify that all Products purchased from Reseller are fulfilled with Products that the Reseller purchased from Petmate or a Petmate Authorized Wholesaler.
Reseller shall not offer for sale any product bundles containing any Product(s) without prior written permission from Petmate.
Sales by the Reseller of Product(s) by way of online auction are prohibited without prior written permission from Petmate.
For each occasion that Reseller breaches Sections 1, 2, 3, 4, 5, 6, or 7 of this Agreement by engaging in the unauthorized advertising, distribution, offering for sale, or sale of Products, in addition to all other remedies available to Petmate under this Agreement and at law, Reseller agrees to pay Petmate, as liquidated damages and not as a penalty, the greater of the following amounts: (i) the costs and fees associated with Petmate's investigation and enforcement regarding the unauthorized conduct, including, but not limited to, attorney's fees; or (ii) Five Hundred United States Dollars ($500.00) per Product per unit of Product. The parties agree that these damages are not punitive.
Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Licensed IP for the sole purpose of advertising and promoting the sale of Products to End-Users within the Territory, subject to the restrictions and limitations described in Schedule C of this Agreement.
During the Term of this Agreement, Reseller shall:
Any violation of the terms of this Agreement shall be deemed a breach of the Agreement, entitling Petmate to terminate the Agreement immediately or take any other action allowed under the law.
This Agreement may be terminated as follows:
Upon expiration or termination of this Agreement for any reason, Reseller will no longer be an authorized Internet reseller of Petmate Products. Reseller shall immediately cease to purchase, advertise, and/or sell Petmate products; cease to represent itself as an authorized reseller of Petmate products; cease all use of Petmate's intellectual property; and return to Petmate all advertising, promotional, display, and other materials that have been furnished to Reseller by Petmate. Reseller agrees to immediately remove any and all Internet listings of Petmate products. The acceptance by Petmate of a Reseller's purchase order after the expiration or termination of this Agreement shall not be deemed a renewal or extension of this Agreement, or a waiver of its termination or expiration or a waiver of any prior breach. However, Petmate shall be under no obligation to fulfill any orders by Reseller after termination or notice of such termination.
Within ten (10) days of termination of this Agreement for any reason, Reseller agrees to provide Petmate with a list of its inventory of the Products. Petmate, at its option, will have the right to repurchase from Reseller any or all saleable Products in Reseller's inventory by sending written notice of the exercise of such option within thirty (30) days from the effective date of expiration or termination or the date Petmate receives the foregoing list, whichever last occurs. The purchase price of such Products will be at the net invoice prices at which the Products were originally purchased by Reseller, less any discounts or allowances that Petmate may have given Reseller on account of such Products. If such option to repurchase is exercised by Petmate, Reseller agrees, at Reseller's expense, to deliver Reseller's inventory of the Products to Petmate in their original packages within thirty (30) days of receipt of Petmate's notice of exercise. If such option to repurchase is not exercised by Petmate, Reseller is prohibited from reselling its remaining inventory of the Products on the Internet.
Reseller acknowledges that Reseller has been informed of Petmate's Unilateral Price Policy ("UPP") as it applies to the advertisement for sale of Petmate Products from resellers to End-Users in the United States. There is no agreement, express or implied, between Petmate and Reseller with respect to the advertised or resale pricing of Products. If any director, officer, employee, representative, or other agent of Petmate tries to coerce Reseller to agree to the price at which Reseller advertises or resells Petmate Products, such action shall be considered void, unauthorized, and without effect and Reseller shall promptly notify Petmate's UPP Committee at policyadmin@petmate.com.
This Agreement, the Schedules, any additional terms and conditions of Petmate, Petmate's written invoices, and any and all personal guarantees or assurances of payment by Reseller set forth the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.
RESELLER ACKNOWLEDGES AND AGREES THAT PETMATE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT RESELLER MAY INCUR FROM DELAYED SHIPMENT, NON-SHIPMENT, OR PRODUCT SELECTION, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), WARRANTY, OR OTHERWISE. IN NO EVENT SHALL PETMATE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT PETMATE SHALL BE OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
This Agreement shall be deemed to have been entered into and fully performed in the State of Texas and shall be governed by and construed in accordance with the laws of the State of Texas without regard for the conflicts of laws rules thereof. Reseller agrees that all controversies, disputes, and claims arising out of this Agreement shall be adjudicated exclusively by a court of competent jurisdiction within Tarrant County or the United States District Court for the Northern District of Texas, except that any judgment in any such action may be enforced in other jurisdictions by suit or in any other permitted manner. Reseller irrevocably consents to the jurisdiction and venue of the state and federal courts of Texas and waives any rights to seek a transfer of venue for any reason or to claim that the forum is inconvenient.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
In accordance with the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. ("ESIGN"), the parties hereby agree to execute this Agreement using electronic means including the use of electronic signatures by the parties, which the parties agree shall have the full force and legal effect as if the electronic signatures were traditional hand-written signatures. Reseller acknowledges that it has the ability to retain this Agreement either by printing or saving it. Each signatory agrees that he or she has been authorized and has the authority to enter into the Agreement with an electronic signature on behalf of the applicable party and intends to sign this Agreement by applying his or her electronic signature as indicated.
Signed by: _________________________
Printed Name: _____________________
Title: ____________________________
Date: ____________________________
Signed by: _________________________
Printed Name: _____________________
Title: ____________________________
Date: ____________________________
Reseller's domain(s) and URL(s) must not contain the word "Petmate" or any current or future trademarks or brands of Petmate, including any variation or combination of these words or trademarks with each other or with other words.
Trademarks authorized by Petmate for online use by Reseller (the "Authorized Marks") may appear in the text to the right of the ".com/" extension. For example:
Reseller must not suggest or imply that its website, advertisement, sponsored link, or any other online marketing used or paid for by Reseller is in any way related to the official Petmate website or any of its brands' websites that are owned and operated by Petmate.
Examples of Prohibited Phrases: Terms such as "Official Petmate Headquarters," "Petmate Home," "Petmate Official Store," and "Petmate.com" are always prohibited. Terms such as "Petmate Headquarters," "Petmate Outlet," "Petmate Depot," or "Petmate Store" are prohibited except when clearly and conspicuously associated with Reseller (e.g., "Petmate Store at Joe's Shop," or "Joe's Authorized Petmate Shop") and only if approved in advance and in writing by Petmate.
Reseller may not bid on any current or future trademarks used or owned by Petmate as keywords on Google Ads or similar paid search engine, including Internet marketplace paid search programs, without prior written permission from Petmate.
Reseller must not use superlatives to describe the quantity of inventory, the pricing of Products, or the online shopping experience, on any website, in any advertisement, sponsored link, or any other on-line marketing used, paid for, or associated with Reseller.
Examples of Prohibited Phrases: Phrases such as "largest available online offering of Petmate," "lowest prices – Petmate," or "best Petmate website" are prohibited.
Reseller must accurately describe Products using the Authorized Marks. The Authorized Marks must always be followed by the generic word for the Product, such as "Petmate® products." They must never be used in the possessive or in the plural. The Authorized Marks must always be displayed in a way that distinguishes them from other surrounding words, e.g., by appearing in initial caps or full caps, such as Petmate and used in conjunction with the ® or ™ designation as directed by Petmate.
Reseller must use only those Product images, logos, marketing banners, and video clips provided or authorized in writing by Petmate on any website, advertisement, sponsored link, or any other on-line marketing used, paid for, or associated with Reseller.
Reseller must not partner with any third-party that uses adware, spyware, or other software to engage in pop-up or pop-under advertising and/or generating non-user initiated activity (e.g., forced clicks or redirects). Pop-up or pop-under advertising and/or non-user initiated activity that is based on keyword searches, textual triggers, or screen-scraping associated with any trademark used or owned by Petmate or any common misspelling or confusingly similar trademarks is strictly prohibited.
