*Updated October 1, 2021 and effective until today.
OxyTurf appoints Reseller and Reseller accepts appointment as an independent non-exclusive Reseller to market and sell OxyTurf products ("Products") within the local markets in which Reseller does business (“Territory”).
1.2 Products Covered
OxyTurf Products means the products agreed to between the parties from time to time with any exclusions, additions or discounts OxyTurf may make.
Reseller shall not, without OxyTurf's prior written approval, appoint sub-resellers, resellers or agents ("Sub-resellers") to market or sell OxyTurf Products; provided that OxyTurf shall not withhold such consent unreasonably. Reseller shall be liable for the acts and omissions of any such Sub-resellers.
1.4 Sales Outside Territory
Reseller shall in no way market or sell OxyTurf Products outside their normal Territory or outside the United States without OxyTurf's prior written approval. OxyTurf will not ship on any Purchase Orders ("P.O.s") issued by Reseller outside the United States.
1.5 OxyTurf Sales Activities
OxyTurf reserves the right to make direct sales into the Territory, and Reseller shall not be entitled to any compensation on any such sales. OxyTurf may appoint additional Resellers in the Territory at any time.
2. OBLIGATIONS OF RESELLER
2.1. Marketing and Product Support
Reseller shall use reasonable efforts to market and sell OxyTurf Products in the Territory and shall comply with the policies, programs, and requirements regarding marketing and product support as may be communicated by OxyTurf to Reseller from time to time; provided, however, that in order to avoid conflict among OxyTurf's distribution channels, all such marketing and sales efforts require the prior written authorization from OxyTurf.
Reseller shall adhere to the reseller advertising policies and programs as may be communicated by OxyTurf to Reseller from time to time.
2.3. Customer Support and Service Reseller Shall:
a) Supply OxyTurf with such data as OxyTurf requests regarding Reseller's sales to customers for OxyTurf's own reporting purposes;
b) Participate fully in OxyTurf campaigns to notify customers of any retrofit or recall of OxyTurf Products;
2.4. Observance of OxyTurf Policies
OxyTurf will keep Reseller informed of OxyTurf's customer support policies and procedures, and Reseller agrees to follow such policies and procedures to resolve any customer support issues.
2.5. Reseller's Warehouse
All Products shipped to Reseller shall be maintained in Reseller's own warehouse facility and may be insured against any damage or loss at Reseller’s own cost. The Products purchased from OxyTurf shall be shipped to such warehouse.
3. OBLIGATIONS OF OXYTURF
OxyTurf will provide marketing assistance and training programs to Reseller on a case-by-case basis.
4. ORDERING AND DELIVERY OF OXYTURF PRODUCTS
Reseller may order from OxyTurf by telephone or electronic mail. OxyTurf will also provide Reseller with the capacity to enter Orders directly into OxyTurf's system. Acceptance by OxyTurf of the Order shall occur (a) when the Order is entered into OxyTurf's system, (b) when an Order number is provided to Reseller by electronic mail, if requested by Reseller.
a) Each P.O. shall be deemed an offer by Reseller to purchase the OxyTurf Products listed therein and when accepted by OxyTurf shall constitute a contract in accordance with the terms and conditions of the P.O. and these terms. If a conflict arises between the two, these terms shall take precedence.
b) P.O.s submitted by Reseller pursuant to these terms shall include the quantity and type of Product(s) ordered, Product descriptions, Product specifications, shipment and invoice information and shipping instructions.
c) OxyTurf will endeavor to fill all orders from Reseller insofar as it is practicable and consistent with OxyTurf's production schedules to do so, provided that in the event of its failure to fill all or part of any order, OxyTurf shall not be to any extent liable or responsible therefor.
4.2. Changes to Orders
a) No terms of any purchase orders (whether printed, stamped, typed, written, or sent by any electronic means), except those specifying the quantity and type of Product(s) ordered, shipment and invoice information and shipping instructions, shall be binding either on OxyTurf or Reseller if they contravene any term or condition of these terms, unless specifically accepted or approved in writing and signed by an appropriate senior manager or executive of Reseller and OxyTurf. A general or form acknowledgment of any such order or any communication with respect to such an order, or the making of deliveries with respect thereto, shall in no case be construed as an acceptance or approval of the type required by this paragraph.
b) Changes to orders will only be accepted prior to the order entering OxyTurf's manufacturing queue. Reseller may initiate such changes or additions to previously accepted Orders on a case by case basis and must speak directly with a senior manager or executive of OxyTurf.
a) OxyTurf reserves the right to make changes and modifications in specifications, construction, or design of the Products, or any of them, at any time, and any Products so modified shall be accepted by Reseller as standard construction in fulfillment of existing orders. OxyTurf shall not be required to retrofit any Product previously delivered to Reseller with any modifications.
b) OxyTurf reserves the right to discontinue any Products at any time without notice to Reseller.
Reseller is responsible for payment of all shipping and handling fees for delivery of Products. All deliveries of Products are FOB OxyTurf manufacturing facilities unless OxyTurf expressly states otherwise in its acceptance of the purchase order. Title and risk of loss shall pass from Gateway to Reseller or Reseller customer at the point of delivery.
5. PRICES AND PAYMENTS
5.1. Reseller's Purchase Price
Prices for OxyTurf Products purchased hereunder shall be agreed to from time to time. Such prices do not include any taxes, fees, duties, shipping costs, insurance or other levies. Any such items (except taxes on OxyTurf's income) will be added to the purchase price. Reseller shall pay all taxes and government imposts arising from Reseller's activities as a OxyTurf Reseller.
5.2. Price Changes
OxyTurf may at any time change OxyTurf Product pricing or the Reseller's purchase price without notice or liability, but any P.O accepted by OxyTurf before a price change takes effect shall be invoiced at the previous price.
5.3. Invoice and Payment Terms
The Initial Purchase will be invoiced as of the order shipment date and shall be paid for prior to the date of shipment. For subsequent purchases of Products, OxyTurf will invoice Reseller as of order shipment date, and may require a security deposit before accepting any order. Reseller shall pay for OxyTurf Products in United States Dollars (USD) upon shipment to Reseller customer.
6. RETURNED MERCHANDISE
OxyTurf will accept returns for defective Products in accordance with the applicable OxyTurf Return & Restocking Policy which are available upon request or at www.OxyTurf.com
7. TRADEMARKS, TRADE NAMES
Reseller acknowledges that OxyTurf and/or its parent or affiliates are the sole and exclusive owners of the name "OxyTurf" and any abbreviations or variations thereof, and of any and all of OxyTurf's trademarks and trade names, service marks, trade logos and trade dress (collectively "Trademarks") as OxyTurf may unilaterally amend periodically (registered or not). Reseller agrees not to register or use any mark(s) that are similar enough to be construed as OxyTurf Trademarks. Reseller acquires no rights to the Trademarks, and Reseller hereby assigns and transfers to OxyTurf all rights that it may acquire in and to the Trademarks, whether by operation of law or otherwise. Any approval for Reseller's use of any OxyTurf Trademark shall be made pursuant to a OxyTurf Trademark License Agreement executed separately by and between the Parties hereto.
8.1. Confidential Information
Prior to and during the Term hereof, OxyTurf may convey to Reseller proprietary and confidential information about OxyTurf Products, services, strategy and analysis. Reseller shall not disclose to any third party any such information marked CONFIDENTIAL, PROPRIETARY, STRICTLY PRIVATE, or INTERNAL DATA, or which, though not so marked, could reasonably be construed as confidential or sensitive, such as these Terms & Conditions (all collectively "Confidential Information"), nor shall it use any such Confidential Information for its own benefit, except as provided herein. Any reliance on such Confidential Information is at Reseller's own risk. Nothing in this Section grants or implies any rights by license, estoppel, or otherwise. Confidential Information does not include information (i) in the public domain at the time of disclosure or which enters the public domain after such disclosure through no fault of Reseller, (ii) generally disclosed to third parties by OxyTurf without restriction, (iii) communicated to Reseller by a third party with the unrestricted right to do so, or (iv) approved for release by OxyTurf in writing.
8.2. Presentations and Planning
OxyTurf's oral and visual presentations describing OxyTurf Products and plans, business and product plans, and any inspections thereof by Reseller or its personnel shall all be deemed Confidential Information under these terms whether so marked or not.
9. LIMITATION OF LIABILITY AND REMEDIES; INDEMNITY
9.1. Limitation of Liability; Sole Remedy
Any liability of OxyTurf under these terms is expressly limited to the price paid by Reseller for the OxyTurf Products involved. Reseller's sole remedy against OxyTurf in any dispute concerning these terms shall be to seek recovery of that amount, upon payment of which OxyTurf shall be released from all further obligations and liability to Reseller.
a) Except as otherwise stated herein, Reseller shall indemnify and hold harmless OxyTurf against any and all claims, legal actions, losses, damages, liabilities, costs and expenses asserted against, imposed upon or incurred by OxyTurf arising out of or relating to (i) any misrepresentation or breach of warranty or covenant by Reseller under these terms; (ii) any actual or alleged act or omission of Reseller in the course of its performance hereunder; (iii) death or injury to any person or damage to any property resulting from any product or part (a) not supplied by OxyTurf, (b) supplied by OxyTurf but changed, modified, adapted or refitted without OxyTurf's written authorization, (c) not in OxyTurf's standard inventory but purchased by OxyTurf at Reseller's direction, or (d) manufactured to Reseller's design, as well as any claim of infringement arising from the use of any Product with any other product as a combination not furnished by OxyTurf.
b) OxyTurf shall defend Reseller from any and all claims, suits, damages, costs, expenses or liabilities, including, without limitation, reasonable fees and expenses of attorneys and other professionals, actually incurred by Reseller arising out of the death or injury to any person or damage to tangible property which results from OxyTurf's negligence.
10. WARRANTIES AND REPRESENTATIONS
The Products are covered by the limited warranties in effect at the time the Products are delivered, on standard terms and conditions supplied with each product shipped and which are incorporated herein by this reference. Should Reseller resell Products to any entity other than an end-user, and Products are further resold, the final end-user may not receive any OxyTurf warranty or customer support.
11. BUSINESS STANDARDS; PRODUCT SERVICE PROVISION
11.1. Conflicts of Interest
Reseller confirms that it has revealed all information pertaining to possible conflicts of interest created by sale of competing products or services or arising from other positions or contracts held by Reseller and represents that no conflict of interest exists. Reseller shall disclose to OxyTurf any future circumstances which could create possible conflicts of interest as soon as they become known by Reseller. Without limiting the generality of the foregoing, Reseller shall inform OxyTurf of any business relationship, circumstance, or situation which could prejudice in any way the conduct of OxyTurf marketing activities according to the highest ethical and business standards or place Reseller or OxyTurf in any kind of disreputable or embarrassing situation.
11.2. Ethical Standards
Directors, officers, or employees of Reseller shall not, directly or indirectly, offer, promise or pay any bribes or other improper payments for the purposes of promoting OxyTurf Product sales to any inpidual, corporation, government official or agency, or other entity. No gift, benefit or contribution in any way related to OxyTurf or the sale of OxyTurf Products shall be made to political or public officials or candidates for public office or to political organizations, regardless of whether such contributions are permitted by local laws. Reseller shall generally abide by all OxyTurf policies and standards regarding conflicts of interest and ethics as may be adopted by OxyTurf or otherwise communicated to Reseller from time to time, such policies and standards being incorporated herein by this reference.
12. FORCE MAJEURE
OxyTurf shall not be liable for any failure to perform due to causes beyond its control, including but not limited to fire, flood, earthquake, explosion, accident, acts of public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine, labor disputes or shortages, transportation embargoes, failures or delays, inability to secure raw materials or machinery, acts of God or government (including denials of or onerous restrictions on export licenses), any such event of force majeure affecting OxyTurf 's third-party suppliers, or judicial action. Similar causes shall excuse Reseller for failure to take OxyTurf Products ordered by Reseller other than those already in transit or specially fabricated or not readily saleable to other buyers.
13. GENERAL PROVISIONS
13.1. Parties' Relationship
OxyTurf's and Reseller's relationship is solely that of independent seller and buyer with the right to resell. Reseller is authorized to resell OxyTurf Products at a markup, but not to receive any commissions from OxyTurf. Reseller has no express or implied authority to assume or create any obligation on OxyTurf's behalf, and shall disclaim any such authority whenever necessary to avoid confusion. In no case shall Reseller or any of its sub-resellers, if any, be deemed OxyTurf's agents or representatives, nor shall Reseller or any of its Sub-resellers, if any, have the right to conclude any contract or commitment in OxyTurf's name, or to make any representation, guarantee or warranty on behalf of OxyTurf or any of its licensors to any third party, including end-users.
13.2. Governing Law; Venue
These terms and any controversy arising out of or in relation to it shall be governed by the law of the State of California, County of Orange (conflicts of laws provisions excepted), and, subject to Section 13.6 below, the parties hereby submit to the jurisdiction of the state and federal courts of the State of California, County of Orange, which shall have exclusive jurisdiction over all controversies in connection herewith. Reseller hereby waives any right to assert any rights or defenses within any other jurisdiction or to require that litigation regarding these terms take place elsewhere.
If any provision of these terms shall be declared void, invalid, or illegal, the validity or legality of all other provisions of these terms shall not be affected thereby.
Except as otherwise provided in these terms, all notices, demands and other communications hereunder shall be in writing and shall be delivered personally or sent by facsimile, other electronic means or nationally recognized overnight courier service addressed to the party to whom such notice or other communication is to be given or made at such party's address as set forth below, or to such other address as such party may designate in writing to the other party from time to time in accordance with the provisions hereof, and shall be deemed given when personally delivered, when sent electronically or five (5) business day after being sent by overnight courier.
Attention: Ashby Sorensen, COO
12300 Industry Street
Garden Grove, CA 92841
13.5. No Waiver
Any failure of either party to enforce at any time, or for any period of time, any provision of these terms, shall not constitute a waiver of such provision or in any way affect the validity of these terms.