These Legal Terms and Conditions are for all distributors of FHI products (“Reseller” or “you”)). Any capitalized terms not otherwise defined herein shall have the meaning ascribed in the Reseller Agreement. These Legal Terms and Conditions govern the Reseller Agreement. Any reference to “this Agreement” shall be a reference to the Reseller Agreement.
Anti-Diversion.As an authorized distributor of FHI, you are required to fully comply with FHI’s anti-diversion policy. The anti-diversion policy applies to all sales, including, without limitation, sales to other re-sellers, distributors, the general public, approved online re-sellers, salon professionals and salons.
Intellectual Property Ownership. Reseller acknowledges that FHI owns all intellectual property rights relating to the brands including but not limited to the trademarks registered with the United States Patent and Trademark Office, additional pending trademark applications, common law trademark rights in the names of the Products, common law trade dress and copyright rights in the design and packaging of the Products, and derivative works of the aforementioned (collectively, the “IP”). Reseller agrees that the trademarks have become widely known among consumers, has achieved secondary meaning, that the IP is valid and enforceable, and Reseller agrees not to challenge the validity or enforceability of the IP or infringe FHI’s rights in the IP.
Non-Exclusive Grant of Limited Intellectual Property License. FHI grants Reseller a limited and non-exclusive license to use the IP solely for use in connection with Reseller’s distribution of the Products during the term of this Agreement. Such license is subject to the following conditions: (a) Reseller’s use of the IP must always appear with the trademark notice ®; (b)Reseller shall not remove any IP identification marks, shall not modify the IP, and shall not make derivative works of the IP; (c) Reseller shall not expressly or impliedly represent that it is the manufacturer or ultimate source of the Products; (d) Reseller shall always use “Brand”® trademark in connection with the Products; (e) Reseller shall not offer to sell similar products that have a trademark that is similar to these Brands; and (f) to the extent Reseller becomes aware of a misuse of the IP or an infringement of FHI’s rights in the IP, Reseller shall promptly inform FHI. Reseller agrees that all good will accruing due to the use of the IP pursuant to this Agreement shall inure to the benefit of FHI.
Representations and Warranties. (a) FHI represents and warrants: (i) as to the truth and accuracy of its identity, structure and principal address as identified in the first paragraph herein; and (ii) that FHI has the right and authority to enter into the Reseller Agreement and that by entering into the Reseller Agreement there will be no conflict with other agreements to which FHI is a party. EXCEPT AS SET FORTH HEREIN FHI MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) Reseller represents and warrants: (i) as to the truth and accuracy of its identity, structure and principal address; (ii) that Reseller has the right and authority to enter into this Agreement and that by entering into this Agreement there will be no conflict with other agreements to which Reseller is a party; and (iii) that it will comply with FHI’s policies and the Reseller Agreement, including in particular, complying with (1) the ban on selling the Products on third party Internet sites, (2) the ban on exports, (3) MAP pricing, and (4) usage of IP.
Indemnification. (a) Reseller hereby agrees to indemnify and hold FHI harmless from and against any and all actions, suits, proceedings, demands, assessments or judgments, costs or expenses (including, but not limited to, reasonable attorneys’ fees) (“Damages”) resulting from or relating to a claim by a third party against FHI arising out of (i) Reseller’s or its officers, directors, employees, and other representatives (collectively, “Representatives”) negligence or more culpable conduct; (ii) any bodily injury or death or damage to property arising out of the negligence or more culpable conduct of Reseller or any of its Representatives; (iii) breach of the Reseller Agreement by Reseller or its Representatives including any Reseller breach of a representation or warranty contained in this Agreement; and (iv) any failure of Reseller or any of its Representatives to comply with any applicable laws.
(b) FHI hereby agrees to indemnify and hold Reseller harmless from and against any and all Damages resulting from or relating to a claim by a third party against Reseller arising out of (i) FHI’s or its Representatives’ gross negligence or more culpable conduct; (ii) any bodily injury or death or damage to property arising out of the negligence or more culpable conduct of FHI or any of its Representatives; (iii) any breach of the Reseller Agreement by FHI or its Representatives including any FHI breach of a representation or warranty contained in the Reseller Agreement; and (iv) any failure of FHI or its Representatives to comply with any applicable laws.
Limitation of Liability. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY; IN NO EVENT SHALL FHI’S LIABILITY FOR DAMAGES EXCEED THE PRICE PAID BY RESELLER FOR THE PRODUCT WHICH GIVES RISE TO THE CLAIM; AND REMEDY SHALL BE LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCTS. NOTWITHSTANDING THE FOREGOING, FHI’S LIABILITY PURSUANT SHALL NOT EXCEED THE AMOUNT OF ANY INSURANCE PROCEEDS ACTUALLY RECEIVED BY IT.
Effect of Termination. Upon termination of this Agreement, the rights granted by FHI to Reseller under this Agreement shall terminate, including in particular, Reseller’s right to distribute the Products and Reseller’s license to use the Intellectual Property. At termination or expiration of this Agreement, Reseller must cease all use of the Intellectual Property and may not make any further use of any FHI Intellectual Property. Upon such termination, at FHI’s sole option, (i)FHI shall repurchase all of Reseller’s inventory at Reseller’s cost, or (ii) Reseller shall have a 90 day period to liquidate its inventory. FHI shall have the right to exercise the foregoing option at any time following the termination of this Agreement.
Written Notices. All written notices made pursuant to this Agreement shall be made by overnight mail, to FHI at the address identified in the first paragraph of this Agreement, Attention “President”, and to Reseller at the address identified in Section 2 of this Agreement and shall be effective as of the day after deposit in the mail.
Miscellaneous.
(a) Neither Party shall assign this Agreement, or sublicense any of the rights granted by this Agreement, to any extent, without the written consent of the other.
(b) This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
(c) This Agreement shall be deemed to have been executed and delivered in the County of Los Angeles, California. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of California without giving effect to conflicts of law. Each of the Parties irrevocably submit to the exclusive jurisdiction of the Federal and State courts located in the State of California in Los Angeles County for the purposes of any suit, action or other proceeding in connection with or relating to this Agreement. Each Party hereby waives any objection it may have based on lack of personal jurisdiction, improper venue, or inconvenient forum. If any legal action or proceeding is commenced with respect to this Agreement, the prevailing Party shall be entitled to all attorneys’ fees, expenses and court costs in addition to any other relief which the Court awards to the prevailing Party.
(d) If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.
(e) A waiver of any breach of any provision of this Agreement must be in writing and does not constitute a waiver of any other provision.
(f) This Agreement represents the entire Agreement with respect to matters contemplated herein. This Agreement shall not be amended to any extent except by a writing executed by the Parties. This Agreement and any amendments hereto may be executed in counterparts, all of which together shall constitute a single, original instrument. Facsimile and electronic signatures shall be deemed to be originals.
