Placing Orders. To order Products from Solutions by Dave for distribution under this Agreement, Reseller shall submit written purchase orders requesting the purchase of Products to Solutions by Dave (“Purchase Orders”). A Purchase Order shall not be considered accepted until a written acceptance of such Purchase Order has been issued by Solutions by Dave (“Order Acknowledgment”). Solutions by Dave in its sole discretion reserves the right to reject any Purchase Orders.
Order of Precedence. Notwithstanding Reseller’s desire to use a standardized purchase order or other documents which may contain terms in addition to or at variance with this Agreement, it is expressly understood and agreed that other forms shall not add to nor vary the terms of this Agreement whether or not referenced therein, and such varying or additional terms are hereby objected to by Solutions by Dave. In the event of any conflict between the terms and conditions of this Agreement and any forms used by the parties for any order hereunder, the order of priority shall be: (i) this Agreement, (ii) Solutions by Dave’s invoice, and (iii) the Order Acknowledgment.
Delivery. Delivery shall be EXW Solutions by Dave’s point of shipment (Incoterms 2010). Title to the Products and risk of loss to the Products shall pass from Solutions by Dave to Reseller, and the Products shall be deemed accepted as soon as the Products are made available to the common carrier at Solutions by Dave’s point of shipment, the carrier acting as Reseller’s agent. Reseller shall pay all transportation and insurance charges unless otherwise agreed upon in advance in writing. Reseller may specify a carrier upon Solutions by Dave’s consent (which consent will not unreasonably be withheld). In the absence of specific instructions by Reseller, the carrier will be selected by Solutions by Dave.
Delivery Dates. Solutions by Dave will use commercially reasonable efforts to meet the delivery dates provided by Solutions by Dave to Reseller. Notwithstanding the foregoing, such delivery dates are non-binding estimates only and Reseller shall have no claim against Solutions by Dave for any delays that may occur despite Solutions by Dave’s application of its commercially reasonable efforts. Solutions by Dave reserves the right to make deliveries in installments which shall not relieve Reseller of its obligation to accept and pay for remaining deliveries. Solutions by Dave reserves the right to make shipments at any time up to fourteen (14) days prior to the requested delivery date and Reseller shall not reject tendered Products for the sole reason of such early delivery.
Inspection. Reseller agrees to examine, or cause to be examined, all Products shipped by Solutions by Dave promptly upon receipt thereof, and to immediately file, or cause to be filed, a claim with the carrier upon delivery for any damage to or shortage in the Products, and to notify Solutions by Dave within ten (10) days after receipt of the Products of any such claim pertaining thereto. All such claims shall be deemed waived unless presented to Solutions by Dave in writing or by electronic transmission within ten (10) days after such receipt.
Order Adjustment. All orders are non-cancelable and non-refundable unless explicitly agreed to by Solutions by Dave. Any requests for order adjustments must be submitted in writing to Solutions by Dave no later than three (3) weeks prior to the original ship date and cannot be greater than 20% of the original order. Any request for order cancellations must be submitted in writing to Solutions by Dave no later than 45 days prior to original ship date. The price of any such rescheduled order shall be the price in effect as of the date of the original Purchase Order. For the avoidance of doubt, Solutions by Dave may refuse any such order adjustment or cancelation requests in its sole discretion.
Pricing and Payment.
Prices. The prices to be paid by Reseller for the Products shall be those prices set forth on the Product List in effect at the time of the Order Acknowledgement, less the applicable discount set forth in Exhibit A. All prices are stated in U.S. Dollars. Reseller’s discount is applied to the Product total, not the invoice total including freight and other costs. If Reseller makes an order that qualifies for certain discounts and later adjusts or cancels portions of such order so that it no longer qualifies for such discounts, then such discount will be lost and Solutions by Dave will charge Reseller’s account to adjust for the lost discount. For any late payments or past due accounts, all discounts will be lost.
Taxes. Reseller will be responsible for and will indemnify and hold Solutions by Dave harmless from payment of all taxes (other than taxes based on Solutions by Dave income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Solutions by Dave under this Agreement or the delivery or license of the Product to Reseller. Reseller will make all payments of fees to Solutions by Dave free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Solutions by Dave will be Reseller’s sole responsibility, and Reseller will provide Solutions by Dave with official receipts issued by the appropriate taxing authority, or such other evidence as the Solutions by Dave may reasonably request, to establish that such taxes have been paid.
Payment Terms. Credit card payments up to $5,000 are accepted at time of shipment or with a Solutions by Dave manager’s approval. Should a credit availability be granted by Solutions by Dave, all decisions with respect to the extension or continuation shall be at the sole discretion of Solutions by Dave. Solutions by Dave may terminate any credit availability at its sole discretion. Reseller agrees to pay all Solutions by Dave invoices on or before the due date, or no later than 30 days after the invoice date if there is no due date listed. Delinquent invoices are subject to a late fee charge of 1.5% per month or the highest rate permissible by law on the outstanding balance. Returned checks are subject to a charge of $25 or 5% of the check amount, whichever is greater. Should Solutions by Dave institute formal collections action, Reseller agrees to pay collection agency fees and/or reasonable attorney fees, and all court or other costs incurred in connection with any such proceedings. Refused COD shipments are subject to a 15% restocking charge plus freight. All payments shall be made in U.S. dollars and are non-refundable. All invoices are payable by check or bank transfer..
Reseller’s Other Obligations.
Inventory. Reseller agrees to provide and maintain, without expense to Solutions by Dave, suitable places of business, adequately trained personnel, and such facilities as the nature of the business makes necessary or desirable in connection with the sale or distribution of Products.
Marketing. Reseller will use its best efforts to market, promote, and sell the Product to Customers in a legal, ethical, professional, and business-like manner and will diligently perform all of its other duties under this Agreement. Reseller will not engage in any activity or action that may damage the reputation of Solutions by Dave or the Products. Reseller will maintain a staff of sales and technical support personnel sufficient to meet the needs of its Customers and prospects. Reseller will ensure that such personnel are properly trained with regard to the Product. Reseller will use the Solutions by Dave Marks to identify all copies of the Product and in all Promotional Materials. Reseller’s use of the Solutions by Dave Marks and Promotional Materials is subject to the limitations and requirements in Section 8 (License Grants and Ownership).
No Warranties Made by Reseller. Reseller will not make or publish any representations, warranties, or guarantees concerning the Product on behalf of Solutions by Dave or its suppliers. Reseller is solely responsible for any return or refund policy it provides with respect to the Products.
Compliance with Laws.
General. In performing its duties under this Agreement, Reseller will at all times comply with all applicable federal, state, and local laws. The remaining sections of this Section 7 (Compliance with Laws) shall not limit this Section 7.1 (General).
Export. Reseller agrees not to export, re-export, or transfer, directly or indirectly, any Products acquired from Solutions by Dave, in violation of the United States export laws or regulations.
License Grants and Ownership.
Promotional Materials. Solutions by Dave may provide Reseller with sales, technical, and marketing materials, including Product photos, pertaining to Solutions by Dave and to the Products (“Promotional Materials”). Subject to the terms of this Agreement, Solutions by Dave hereby grants to Reseller a non-exclusive, nontransferable, and non-assignable license during the Term to use and distribute the Promotional Materials solely to promote the Products in a manner consistent with this Agreement.
Ownership. Solutions by Dave reserves all rights not expressly granted in this subsection. Except for the limited rights granted herein by Solutions by Dave to Reseller, nothing in this Agreement will serve to grant to Reseller any intellectual property rights in or to the Products, Solutions by Dave Marks, Promotional Materials or other intellectual property owned or claimed by Solutions by Dave. Reseller acknowledges and agrees that Solutions by Dave has sole right, title and interest in and to the Solutions by Dave Marks, Promotional Materials and all Solutions by Dave intellectual property rights in the Products, Solutions by Dave Marks, or Promotional Materials.
Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
Exceptions. The Receiving Party’s obligations under the preceding subsection with respect to any Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (x) approved in writing by the Disclosing Party, (y) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (z) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
ALL PRODUCTS ARE PROVIDED “AS IS”. SOLUTIONS BY DAVE SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF CONDUCT OR USAGE OF TRADE. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS.
LIMITATION OF LIABILITY.
SOLUTIONS BY DAVE’S AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES TO RESELLER RESULTING IN ANY WAY FROM THIS AGREEMENT OR THE PRODUCTS WILL IN NO EVENT EXCEED THE AMOUNTS RESELLER HAS PAID SOLUTIONS BY DAVE IN THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM TO GIVE RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.
SOLUTIONS BY DAVE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RESELLER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE UNDER THIS AGREEMENT ARE BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.