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Authorized Retailer Terms & Conditions
Effective Date: September 1, 2023
Doskocil Manufacturing Company, Inc. d/b/a Petmate (“Petmate”) has implemented these Petmate Authorized Retailer Terms and Conditions (“Terms”), which apply to retailers of Petmate products 1 (“Product(s)”) in the United States of America. By purchasing Products from Petmate for retail sale, you (hereinafter “Retailer”) agree to adhere to the following terms. Until such status is otherwise revoked by Petmate, in Petmate’s sole and absolute discretion, the Retailer shall be considered an “Authorized Retailer” hereunder. Petmate may review Retailer’s activities for compliance with the Terms and Retailer agrees to cooperate with any investigation, including, but not limited to, permitting inspection of Retailer’s facilities and records related to the sale of the Products.
1. Purchase Orders and Products. Orders for Products (“Purchase Orders”) made by the Retailer will be handled pursuant to Petmate’s then-current product order, shipment, and return procedures, which may be amended by Petmate at any time. Petmate reserves the right to reject any order, in whole or in part, for any reason. Petmate reserves the right, at any time in its sole and absolute discretion and without any obligation, liability, or advance notice to Retailer, to discontinue the sale of or limit the production of any Product, to terminate or limit deliveries of any Product, to alter the design or composition of any Product, and to add new Products to or delete existing Products from its product lines.
2. Authorized Customers. The retailer is authorized to sell Products to End Users. An “End User” is a purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to any third party. Retailer shall not sell or transfer Products to any person or entity Retailer knows or has reason to know intends to resell the Products. Retailer shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use. Retailer shall not sell, ship, invoice, or promote the Products outside the United States of America without Petmate’s prior written consent.
3. Online Sales. The retailer is authorized to advertise and sell Products through Permissible Public Websites in accordance with the terms herein. A “Permissible Public Website” is a website or mobile application that: (i) is operated by Retailer in Retailer’s legal name or registered fictitious name; (ii) conspicuously states Retailer’s legal name, mailing address, telephone number, and email address; (iii) does not give the appearance that it is operated by Petmate or any third party; and (iv) is operated in compliance with the terms and conditions set forth in the Online Sales Guidelines, attached hereto as Exhibit A, as Petmate may amend from time to time. Retailer shall not advertise or sell products on or through any website, online marketplace, mobile application, or another online forum other than a Permissible Public Website without the prior written consent of Petmate. This prohibition includes sales on any online marketplace, including, but not limited to, Amazon, eBay, Target, or Walmart Marketplaces. Petmate reserves the right to terminate, at any time and in its sole discretion, its approval for Retailer to market and sell Products on the Permissible Public Websites, and Retailer must cease all such marketing and sales on the Permissible Public Websites immediately upon notice of such termination. The Terms supersede any prior agreement between Petmate and Retailer regarding the sale of the Products online.
4. Sales Practices. Retailer shall conduct its business reasonably and ethically at all times and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time. Retailer shall not make any warranties or representations concerning the Products except as expressly authorized by Petmate. Retailers shall comply with all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Products. The retailer shall professionally represent the Products and refrain from any conduct that is or could be detrimental to the reputation of Petmate. 1 The Petmate family of products includes but is not limited to, Arm & Hammer, Aspen Pet, Petmate, Bark Bone, Chuckit!, Dogzilla, Fat Cat, Gamma2, Gen7 Pets, Hyper Pet, La-Z-Boy, JW Pet, Precision Pet, Pet Qwerks, Ruffmax, SnooZZy, Vittles Vault, Zoobilee, Wild Eats
5. Product Care, Customer Service, and Other Quality Controls. (a) The retailer shall comply with all instructions provided by Petmate regarding the storage, handling, shipping, disposal, or other aspects of the Products, including instructions provided on Product labels. Retailer shall store Products in a cool, dry, pest-controlled place, away from direct sunlight. (b) Retailer shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled products or the bundling of products), and other alterations to Products or their packaging are not permitted. Retailer shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products. Retailer shall not tamper with, deface, or otherwise alter any serial number, UPC, batch or lot code, or other identifying information on Products or their packaging. (c) Retailers shall not represent or advertise any product as “new” that has been returned open or repackaged. For treat products, the Retailer shall not resell any product that has been returned open. (d) Promptly upon receipt of the Products, the Retailer shall inspect the Products and their packaging for damage, defect, broken seals, evidence of tampering, or other nonconformance (a “Defect”). If any Defect is identified, the Retailer must not offer the Product for sale and must promptly report the Defect to Petmate at cs@petmate.com. (e) Retailer shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove them from inventory. Retailer shall not sell any Products that are expired or within 60 days of expiration. Retailer shall destroy or dispose of expired or soon-to-be expired Products per instructions provided by Petmate. (f) Retailers shall be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable warranty, guarantee, or return policy. The retailer must be available to respond to customer questions and concerns both before and after the sale of the Products and should endeavor to respond to customer inquiries promptly. (g) Retailer shall cooperate with Petmate concerning any Product tracking systems that may be implemented from time to time. (h) Retailer shall cooperate with Petmate concerning any Product recall or other consumer safety information dissemination efforts. (i) Retailer shall report to Petmate its fictitious names (DBAs), if any, and shall keep Petmate apprised of any changes to its contact information. The retailer is only authorized to purchase Products from Petmate using its legal name or DBAs that have been reported to Petmate. (j) Retailer shall report to Petmate and assist in investigating any customer complaint or adverse claim regarding the Products of which it becomes aware. (k) Retailer shall cooperate with Petmate in the investigation and resolution of any quality or customer service issues related to Retailer’s sale of the Products, including disclosing information regarding Product sources, shipment, and handling.
6. Intellectual Property. The retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the Petmate IP solely for purposes of marketing and selling the Products as set forth herein. The “Petmate IP” includes the trademarks, names, logos, service marks, trade dress, copyrights, and other intellectual property related to Aspen Pet, Arm & Hammer, Bark Bone, Chuckit!, Dogzilla, Fat Cat, Gamma2, Gen7 Pets, Hyper Pet, JW Pet, La-Z-Boy, Petmate, Pet Qwerks, Precision Pet, Ruffmax, Snoozy, Vittles Vault, Wild Eats, Vittles Vault, Zoobilee, products as well as any brands later acquired by Petmate and other brands in which Petmate has the necessary rights to sublicense to Retailer. The license granted to the Retailer will cease upon termination of the Retailer’s status as an Authorized Retailer. All goodwill arising from the Retailer’s use of the Petmate IP shall inure solely to the benefit of Petmate or its licensors. The retailer’s use of the Petmate IP shall be in accordance with any guidelines that may be provided by Petmate from time to time (“Brand Guidelines”) and must be commercially reasonable as to the size, placement, and other manners of use. Petmate reserves the right to review and approve, in its sole discretion, the Retailer’s use of Petmate Authorized Retailer Terms and Conditions 3 or intended use of the Petmate IP at any time, without limitation. Retailer shall not create, register, or use any domain name or any mobile application that contains any Petmate product name or any trademark owned by or licensed to Petmate, nor a misspelling or a confusingly similar variation of any Petmate product name or any trademark owned by or licensed to Petmate.
7. Termination. In addition to all other available remedies, if the Retailer breaches any of the Terms, Petmate reserves the right to terminate the Terms and the Retailer’s status as an Authorized Retailer with written or electronic notice. Upon termination of a Retailer’s status as an Authorized Retailer, Retailer shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Retailer is an Authorized Retailer of Petmate Products or has any affiliation whatsoever with Petmate; and (iii) using all Petmate IP.
8. Warranty. EXCEPT AS EXPRESSLY OUTLINED IN THE WARRANTY SECTION OF THE DOCUMENTS ACCOMPANYING THE PRODUCTS OR IN PRODUCT LITERATURE FURNISHED BY PETMATE CONTAINING PRODUCT WARRANTIES, AS IN EFFECT FROM TIME TO TIME (THE “STATEMENT OF WARRANTY”), PETMATE MAKES NO REPRESENTATION OR WARRANTY TO THE RETAILER OF ANY NATURE OR KIND REGARDING THE PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY LAW, PETMATE DISCLAIMS ALL OTHER WARRANTIES TO RETAILER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE OR OTHERWISE. PETMATES' SOLE OBLIGATION AND LIABILITY TO THE RETAILER IN RESPECT OF ITS WARRANTY AS OUTLINED IN THE STATEMENT OF WARRANTY SHALL BE, AT ITS OPTION, TO REPAIR OR REPLACE THE RELEVANT PRODUCT AT ITS COST.
9. Indemnification. Except as otherwise provided herein, Retailer shall, and hereby does, indemnify, defend, save and hold harmless, Petmate, and its directors, officers, employees, members, shareholders, partners, counsel, auditors, accountants, agents, advisors and all other representatives and each of the heirs, executors, successors and assigns of any of the foregoing, from and against any and all losses, liabilities, obligations, actions, causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever, in law, admiralty, or equity, known or unknown of any kind to the extent they are caused by, arise from, or are incurred in connection with (a) any breach of, or failure to perform, any term, covenant or condition in the Terms by Retailer, or (b) the negligence or willful misconduct of Retailer or its officers, employees, agents or contractors.
10. Limitation of Liability. PETMATE SHALL NOT BE LIABLE TO THE RETAILER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS. PETNATE’S AGGREGATE LIABILITY FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY ITS ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE AGGREGATE AMOUNT PAYABLE BY RETAILER TO PETMATE DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSATION OF ANY DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
11. Availability of Injunctive Relief. If there is a breach or threatened breach of Sections 2 (Authorized Customers), 3 (Online Sales), 4 (Sales Practices), 5 (Product Care, Customer Service, and Other Quality Controls), 6 (Intellectual Property), or 7 (Termination), it is agreed that Petmate will have no adequate remedy in money or other damages at law. Accordingly, Petmate shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Terms of any remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by Petmate to exercise any right(s) herein or to insist upon Petmate Authorized Retailer Terms and Conditions 4 full compliance by Retailer with Retailer’s obligations herein shall constitute a waiver of any provision herein or otherwise limit Petmate right to fully enforce any or all provisions and parts thereof.
12. Miscellaneous. (a) Modification. Petmate reserves the right to update, amend, or modify the Terms at any time. Unless otherwise provided, such amendments will take effect immediately and Retailer’s continued use, advertising, offering for sale, or sale of the Products, use of the Petmate IP, or use of any other information or materials provided by Petmate to Retailer will be deemed Retailer’s acceptance of the amendments. (b) Force Majeure. Petmate shall not be deemed to be in breach hereof or liable to Retailer in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond Petmate's control, including without limitation, fire, flood, terrorist threats or acts, riot or other civil unrest, war, invasion, hostilities, strikes or other labor disputes, embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices from regular sources or on account of shortages thereof, delays or failures of any of Petmate’s suppliers to deliver, acts of God or a public enemy, the effect of any existing or future laws, acts or regulation of any applicable federal, state or local government, or any other commercial impracticability. (c) Severability. If any provision of the Terms is held contrary to law, the remaining provisions shall remain valid. (d) Survival. The following provisions shall survive the termination of the Terms: Section 6 (Intellectual Property); Section 9 (Indemnification); Section 12(d) (Survival); Section 12(e) (Governing Law and Venue); Section 12(f) (Confidentiality); and Section 12(g) (Waiver of Jury Trial). (e) Governing Law and Venue. The Terms and any dispute arising under them shall be governed by, construed, and enforced per the laws of the State of Texas, without regard to its choice of law rules. In the event of a dispute over the terms or performance under the Terms, the Retailer expressly submits to personal jurisdiction and venue in the federal or state courts in Tarrant County, Texas. (f) Confidentiality. The Terms constitute confidential, proprietary information of Petmate and shall not be used for any purpose other than the authorized advertising and sale of the Products nor disclosed to any third party without the prior written consent of Petmate. (g) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING. EXHIBIT A PETMATE ONLINE SALES GUIDELINES Retailer’s approval to sell Petmate Products on Permissible Public Websites is conditioned on adherence to the following terms and conditions: 1. The Permissible Public Websites must not give the appearance that they are operated by Petmate or any third party. 2. Anonymous sales are prohibited. Retailer’s full legal name or registered fictitious name, mailing address, email address, and telephone contact must be stated conspicuously on the Permissible Public Websites and must be included with any shipment of Products from the Permissible Public Websites or in an order confirmation sent at the time of purchase. 3. At Petmate’s request, the Retailer will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Permissible Public Websites. 4. The Permissible Public Websites shall have a mechanism for receiving customer feedback and the Retailer shall use reasonable efforts to address all customer feedback and inquiries received promptly. The retailer agrees to provide copies of any information related to customer feedback (including any responses to customers) to Petmate for review upon request. The retailer agrees to cooperate with Petmate in the investigation of any negative online review associated with the Retailer’s sale of the Products and to use reasonable efforts to resolve any such reviews. 5. The Permissible Public Websites shall comply with all applicable privacy, accessibility, and data security laws, regulations, and industry standards. 6. Retailer shall be responsible for all fulfillment to its customers who order Products through Permissible Public Websites, any applicable taxes associated with such purchases of Products, and any returns of Products. 7. Unless separately authorized by Petmate in writing, the Retailer shall not use any third-party fulfillment service to store inventory or fulfill orders for the Products. Under no circumstances shall the Retailer fulfill orders in any way that results in the shipped Product coming from stock other than the Retailer. 8. In marketing the Products on Permissible Public Websites, the Retailer shall only use images of Products either supplied by or authorized by Petmate and shall keep all Product images and descriptions up to date. Retailer shall not advertise Products not carried in inventory