ESD is an authorized distributor for water treatment products manufactured by H2O International, Inc., H2O Chlorination, Inc., Watts Water Products, Sprite and certain other manufacturers. ESD desires to enter this business agreement with Reseller for the sale and distribution of such products by Reseller.
1. Appointment: ESD hereby appoints Reseller as an authorized Independent Dealer for the sale and distribution of water treatment products. Reseller may sell anywhere without restriction, and without any exclusive rights to any “territory,” in the United States or elsewhere. As an Independent Dealer, Reseller does not become an employee of ESD and is not responsible to/for ESD for any business dealings with the retail public, either domestic or foreign. The primary and sole business relationship between ESD and Reseller is for Reseller to obtain products at discount from ESD for the purpose of reselling said products to the retail public.
2. Duties of Reseller: Reseller shall exercise best efforts to sell and promote the sale of the products. Best efforts is hereby defined as all legal, ethical and prudent marketing practices. With respect to marketing and promoting these products online via the Internet, Reseller agrees that they shall not engage in any marketing practices that would constitute “spamming” by any means, be that via e-mail, newsgroups, or any other online means. Substantiable evidence of Reseller engaging in any marketing tactic which could in any way reflect negatively on ESD and/or any manufacturer represented by ESD will be construed as grounds for immediate termination of this Agreement.
3. Orders by Reseller: ESD shall give careful consideration to Reseller orders for the purchase of products, and all such orders shall be subject to ESD’s acceptance.
4. Delivery: All accepted orders, regardless of whether delivery dates are specified therein, may be subject to delays or failures in manufacture or delivery due to causes beyond ESD’s control. ESD hereby assures prompt and efficient processing of all Reseller’s orders but shall not be held responsible for matters of shipping loss or delays enroute and other matters beyond ESD’s control.
5. Purchase Price: The products which ESD may supply to Reseller shall be sold to Reseller at the prices and upon the terms that shall be established by ESD and in effect at the time of shipment, except as to commitments which may otherwise be made in writing with respect to specific orders or deliveries. ESD may change its price schedules at any time and will affect such changes on the online Dealer Order Form. Resellers will note current pricing at the time of ordering. Unless pre-arranged with ESD, payment for all orders shall be due at time of ordering. If credit for an order is granted by ESD, the terms of that credit shall not exceed Net 30. Order payments overdue by as much as 60 days shall result in automatic termination of this Associate Dealer Agreement and shall accrue compounding interest on the principle at the rate of 20% APR for every month overdue past the original Net 30 PLUS any expenses incurred by ESD that are directly related to the collection of said overdue payments. Such directly related expenses may include court costs, collection agency and/or attorney fees and commissions, costs to physically recover unpaid items and a minimum of $100 compensation to ESD for lost time away from business to attend to any such collection proceedings.
While ESD may offer its direct retail customers free shipping to certain locations, that free shipping offer does not extend to Associate Dealers as parties to this agreement. ESD will bill Associate Dealers for the actual shipping cost, as invoiced by the shipper/manufacturer, and upon request will provide the Associate Dealer with a copy of that invoice to verify the shipping/handling cost that was charged to us.
6. Warranties: Any warranty claims must be addressed directly with the manufacturer/s of the product/s ordered. Retail customers who register the warranty card with one of our manufacturers (included with each product) will communicate any warranty claims direct to that particular manufacturer.
ESD will cooperate with the Reseller and/or any end user in any warranty claim as set forth above, and that will be the extent of the warranty obligations of ESD under this agreement.
ESD MAKES NOR EXPRESSES NO WARRANTIES AND NO IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, USE OR OTHERWISE, AND THE WARRANTY SET FORTH A GIVEN MANUFACTURER IS THE ONLY WARRANTY IN CONNECTION WITH THE PRODUCTS. UNDER NO CIRCUMSTANCES SHALL ESD BE HELD LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, SUCH AS A LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS, OR OTHER EXPENSES WHICH MAY ARISE IN CONNECTION WITH THE USE, PERFORMANCE, EXISTENCE, FURNISHING OR FUNCTIONING OF THE PRODUCT.
Reseller has no authroity to, and hereby covenants and agrees that Reseller will not make any warranty for or on behalf of ESD with regard to the products.
7. Term: The term of this Agreement shall commence on the date this application is accepted and acknowledged by ESD and will remain in effect until terminated by 30 days written notice from either party, which termination shall be without prejudice to the rights of either party with respect to products already sold or delivered to Reseller.
If Reseller ceases to function as a viable business, or a receiver for Reseller’s business is appointed or applied for, or petition under the Federal Bankruptcy Acts is filed by or against it, ESD may, upon two (2) working days written notice to the Reseller, terminate this Agreement, but such termination shall be without prejudice to the rights of the parties with respect to products already sold and delivered to Reseller.
8. Waiver: The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of such provision or the right of such party thereafter to enforce any such provision.
9. Assignment: This Agreement is personal and the rights hereunder are not assignable nor are the obligations imposed on Reseller delegable without ESD’s written consent.
10. Modification: No modification or waiver of any provisions herein contained or any future representation, promise or condition in connection with the subject matter hereof shall be binding upon ESD unless made in writing and signed by an authorized officer thereof. A mere acknowledgement or acceptance of any order inconsistent with the terms of this Agreement or making of deliveries pursuant hereto shall not be deemed an acceptance or approval of such inconsistent provisions.
11. Construction: This Agreement contains the entire agreement between the parties. All prior and collateral representations, promises and conditions in connection with the subject matter hereof are merged.
12. Governing Law: This Agreement is entered into in the State of Illinois and shall be governed in all respects by the laws of the State of Illinois no matter where the Reseller or ESD has its place of business or conducts its sales efforts hereunder.
Further, the parties hereto agree that venue of any action in regard to this Agreement shall be in an appropriate court of jurisdiction in Coles County, Illinois. The parties do hereby agree and waive their right to a jury trial in any action brought by either party hereto by or against the other in a court of competent jurisdiction in Coles County and consent to the same shall be determined by the trial judge without the intervention of a jury.