U.S. JACLEAN, INC. Reseller Agreement
This Reseller Agreement ("Agreement") is entered into as of the date it is accepted electronically in accordance with provisions below (the "Effective Date") by and between U.S. JACLEAN, INC., a California corporation located at 1816 West 135th Street, Gardena, CA ("USJ") and the entity completing an application and accepting these terms electronically ("Reseller").
WHEREAS, Reseller is a U.S.-based retailer licensed to sell new tangible personal property to consumers ("Reseller"), and requests USJ's authorization to serve as a reseller of certain USJ products, and WHEREAS, USJ is willing to grant such authorization pursuant to the terms and conditions set forth herein,
The parties agree as follows:
1.1 "Products" means those products sold by USJ and designated at Exhibit A, attached hereto and incorporated herein, that Reseller is authorized to advertise, promote, market, sell, and support pursuant to Section 2 of this Agreement.
1.2 "End User Markets" means those intended business markets into which Reseller is authorized to advertise, promote, market, sell, and support pursuant to Section 2 of this Agreement. As of the date of this Agreement, all markets are designated as End User Markets.
1.3 "End User" means an entity not affiliated with Reseller who acquires Products directly from Reseller for End User's direct use and not for resale.
1.5 "Territory" means the Continental United States of America not including Alaska and Hawaii.
1.6 "Third Party Products" means the products listed in the Product List Prices that USJ purchases or licenses from third parties.
2. RESELLER REPRESENTATION AND WARRANTY; APPOINTMENT AS RESELLER
2.1 Reseller represents and warrants to USJ that, as of the Effective Date, it is an authorized reseller of the Distributor in good standing, pursuant to an agreement between Distributor and Reseller. Reseller shall immediately notify USJ of any termination or suspension of Reseller's agreement with Distributor.
2.2 In reliance upon Reseller's representation and warranty set forth in Section 2.1, USJ hereby appoints Reseller to serve as a non-exclusive reseller of Products purchased by Reseller from Distributor, with the right to advertise, promote, market, sell, and support Products to End Users in the Territory in the End User Markets, in accordance with the terms and conditions of this Agreement, and Reseller accepts such non-exclusive appointment. USJ reserves the right to advertise, promote, sell, and support Products and other products, both within and outside the Territory, either directly, through other distributors, or through other resellers, or to End User Markets excluded hereunder, without limitation, restriction, notice or liability. Reseller is hereby granted a non-exclusive license to market, in the Territory, the products subject to the terms herein provided, however, that Reseller shall not market any of the products or parts as a stand-alone product without express written authorization from USJ.
2.3 Reseller will determine the prices, terms and conditions of marketing Products to its customers according to the Minimum Advertising Price and other terms of this agreement.
3. ORDER POLICIES, PAYMENTS, AND REFUNDS
3.1 Reseller must comply with Company Policies related to ordering, payment, and returns as follows:
3.1.2 Reseller may only purchase the products authorized in Appendix A according to the Wholesale Pricing provided on the price list. Default Wholesale Pricing is based on the Account Level (New/Small Vendor, Performance Vendor, High-Volume Vendor).
188.8.131.52 Reseller understands that pricing initially offered is reset annually and subject to change at the sole discretion of USJ for any reason, including inflation adjustments and market-rate alignment.
3.1.3 A Credit Card must be charged the full amount owed prior to shipping.
3.1.4 Payment Terms are stated in your account profile. Default payment for Established Vendors is “Credit Card charged prior to shipping.”
3.1.5 Late Payments are charged a 5% fee each month late. If your account is 60 days or more past due, your account is no longer considered in good standing and this may prevent you from further orders and may result in your account being closed. After 90 days without payment, we will initiate collections processes which may involve negative effects on your credit score.
3.1.6 Shipping fees are charged to Reseller directly with no markup. USJ is willing to ship via Reseller’s own shipping account with prior approval and setup.
3.1.7 Wholesale orders are filled as quickly as possible. Please allow up to three (3) business days for orders to be shipped. Delays due to weather conditions or high-volume periods may incur additional shipping delays, so please plan in advance. Express shipping will be charged to the Reseller.
3.2 Reseller may return any item due to manufacturer damage or defect, including defective or damaged packaging if it prevents sale of the item, within 30 days after shipment was received.
3.2.1 Returns can only be accepted and processed when the Reseller gets preapproval, including an RA number.
3.2.2 Reseller agrees to inspect items on arrival for order accuracy and product condition, including to ensure that the correct quantity was sent. Errors or problems should be reported within 2 weeks of arrival of order. After 15 days Reseller implicitly confirms the order and will no longer request a refund/return due to defects or errors with the order.
3.2.3 If an end-user experiences a factory defect with the item after purchase, they are encouraged to submit a return/repair request to us directly under our Limited Consumer Warranty.
3.2.4 If an end-user purchases a new USJ item from Reseller and experiences a factory defect and then returns the item to Reseller, and if this occurs within one (1) year of the Reseller’s order with USJ that contained the defective item, Reseller may request that USJ replace it with a new one, as long as Reseller follows the proper procedures for requesting a return. Cases such as these will be evaluated individually at the sole discretion of USJ. Reseller agrees to abide by any final decision about a request for the return and replacement of a defective item when it has been more than 30 days after the original order was placed.
4.1 The term of this Agreement will begin on the Effective Date and will continue for a period of one year, after which the Agreement will automatically renew, if the Vendor Reseller account is in good standing, for consecutive terms of one year each until it is terminated pursuant to Section 8.
5. RESELLER RESPONSIBILITIES
5.1 Reseller will at all times correctly represent Product features and performance in accordance with Product information provided by USJ. Reseller will not make any inaccurate or misleading statements regarding Products. Reseller will explain and demonstrate the Products upon customer request and provide instruction as to set-up and installation.
5.2 Reseller will not misrepresent the extent of Reseller's authority with regard to Products under this Agreement. Reseller recognizes the importance of the USJ's channels for distribution of Products, and as such Reseller agrees to not sell any Product(s) for resale, but to only sell to End Users.
5.3 Reseller will obey all applicable laws and regulations and will conduct business in a professional and ethical manner. Reseller will ensure compliance with its obligations by its personnel.
5.4 Reseller will indemnify, defend and hold harmless USJ from all claims arising out of acts or omissions of Reseller or its agents.
5.5 Reseller will not make any alterations to the Products without express written consent of USJ and acknowledges that unless specifically agreed in writing by USJ, such alterations shall invalidate USJ's warranty.
5.7 Reseller will only purchase Products from Distributor.
5.8 Reseller will not decompile, disassemble, or reverse engineer the Products, or otherwise attempt to derive the ideas, structure, sequence, or organization of the Products.
6. TRADEMARKS, TRADE NAMES AND RELATED MATTERS
6.1 USJ grants limited permission to Reseller during the term of this Agreement to use the USJ Trademarks to identify Products resold by Reseller under this Agreement. Reseller agrees to use the USJ Trademarks only in the Territory and only in accordance with the requirements set forth in USJ's written trademark guidelines, a copy of which will be provided to Reseller upon request.
6.2 Reseller will provide to USJ, for prior review and written approval, all promotional, advertising, and other materials developed by Reseller that use or display any of the USJ Trademarks. Reseller agrees to change or correct, at Reseller's expense, any such materials, which USJ in its sole judgment determines to be inaccurate, objectionable, misleading, or a misuse of any of the USJ Trademarks. No rights are granted to the Reseller to use any trademarks, service marks, or trade names of USJ or of any third parties, except as provided herein.
6.3 Reseller may refer to itself within the Territory during the term of this Agreement as an Authorized USJ Reseller solely in connection with Products resold by Reseller under this Agreement.
6.4 Upon the termination or expiration of this Agreement for any reason, Reseller will immediately cease referring to itself as an Authorized USJ Reseller and will immediately cease using any of the USJ Trademarks except on Products that remain in possession of Reseller. Reseller will also, at its own expense, promptly return to USJ or destroy all materials in its possession or control employing any USJ Trademarks except those reasonably required to fulfill Reseller's warranty service obligations, if any, which materials will be returned to USJ or destroyed upon completion of such warranty obligations.
6.5 Reseller recognizes USJ's ownership and title to the USJ Trademarks and the goodwill attaching thereto and agrees that any goodwill that accrues from Reseller's use of the USJ Trademarks will vest in and be the property of USJ. Reseller further agrees not to contest or take any action to contest any of the USJ Trademarks or to use, employ or attempt to register any trademarks or trade names that are similar to or may dilute the USJ Trademarks.
6.1 For each Product, USJ provides a specified warranty to the original End User purchaser, and in the case of Third-Party Products may include a warranty statement from the third-party manufacturer or licensor. Reseller is not authorized to offer any other warranty regarding Products on USJ's behalf, whether written or oral, without USJ's prior written consent. USJ will provide to Reseller upon request a copy of the applicable warranty statement(s).
6.2 THE WARRANTIES REFERRED TO ABOVE, AND THE OBLIGATIONS THEREUNDER, ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. CONFIDENTIAL INFORMATION
7.1 Reseller agrees to use USJ's Confidential Information (as defined below) only as authorized in this Agreement and to use diligent efforts, and at least the same degree of care that Reseller uses to protect its own Confidential Information, to prevent unauthorized use, dissemination and disclosure of USJ's Confidential Information during the Term of this Agreement and for three (3) years following the expiration or termination of this Agreement.
7.2 Confidential Information is defined as: (a) this Agreement, including all Exhibits or amendments; (b) all information related to USJ's past, present or future business activities, including pricing, product and marketing plans, unless and until publicly disclosed; (c) all information of a technical nature regarding the Products, including designs, drawings, manufacturing processes and procedures, trade secrets, specifications, schematics, mechanical and engineering drawings, and engineering documentation, except for any such information that is intended by USJ to be distributed or disclosed to Reseller's customers; (d) any and all methods, algorithms, techniques and processes contained in or related to the software contained in the Products; (e) all non-public financial and administrative information concerning USJ; and (f) any other information designated by USJ in writing as confidential or proprietary.
7.3 Confidential Information does not include any information that is: (a) publicly known at the time of disclosure or becomes so at a future date (otherwise than as a breach of this Agreement); (b) already known to Reseller at the time of disclosure and so identified by Reseller in writing at the time of disclosure; or (c) independently developed by Reseller without use of Confidential Information.
7.4 Except as specified herein, Reseller will not disclose any Confidential Information without the prior written consent of USJ, except as required by law or pursuant to the lawful request of a governmental agency. Reseller agrees to notify USJ promptly prior to any disclosure required by law or pursuant to request of a governmental agency.
8.1 Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' prior written notice to the other party.
8.2 Either party may terminate this Agreement for cause by giving the other party written notice of the other party's breach of any obligation under this Agreement. Such termination will become effective ten (10) days after receipt of such notice, unless the breach is cured within such ten (10) day period.
8.3 USJ may terminate this Agreement immediately on written notice to Reseller in the event that: (a) a trustee or receiver is appointed for Reseller for any or all of Reseller's assets; (b) Reseller becomes insolvent or unable to pay debts as they mature, or ceases to pay such debts, or makes an assignment for the benefit of creditors; (c) Reseller is dissolved, liquidated, or wound-up, or undertakes to do so; (d) there is any material change in the management or control of Reseller; (e) there is any transfer of a substantial part of Reseller's business, whether by sale of stock, assets, merger, consolidation, bulk transfer under the U.C.C. or otherwise; (f) USJ learns that Reseller has made any material misrepresentation in its application to become a distributor reseller; (g) USJ learns that Reseller's agreement with Distributor has been terminated or suspended, or (h) USJ learns that Reseller has violated the restrictions respecting End User Markets to be served.
8.4 Upon termination of this Agreement, Reseller shall, at its own expense, immediately return to USJ all materials, documents, data, catalogues, price lists, brochures, designs, and drawings provided by USJ or its Affiliates (including any copies in whole or in part made by Reseller), any documents or data prepared by Reseller reflecting such items, and any property of USJ then in Reseller's possession.
9. LIMITATION OF REMEDIES
9.1 IN NO EVENT WILL USJ BE LIABLE TO DISTRIBUTOR RESELLER FOR ANY LOST PROFITS, LOST OPPORTUNITIES, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF USJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL USJ BE LIABLE TO DISTRIBUTOR RESELLER FOR ANY DAMAGE OR LOSS IN EXCESS OF THE TOTAL PURCHASE PRICE PAID BY DISTRIBUTOR RESELLER TO DISTRIBUTOR FOR THE PRODUCT (S) GIVING RISE TO SUCH DAMAGE OR LOSS.
9.2 IN NO EVENT WILL USJ BE LIABLE FOR ANY CLAIM AGAINST DISTRIBUTOR RESELLER BY ANY OTHER PARTY, EXCEPT AS REQUIRED BY LAW.
9.3 DISTRIBUTOR RESELLER ACKNOWLEDGES THAT IN THE EVENT OF TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF, DISTRIBUTOR RESELLER SHALL HAVE NO RIGHT TO DAMAGES OR INDEMNIFICATION OF ANY NATURE AS A RESULT OF SUCH TERMINATION, WHETHER BY WAY OF LOSS OF GOODWILL, FUTURE PROFITS, OR REVENUE, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR OTHER COMMITMENTS MADE BY DISTRIBUTOR RESELLER, OR OTHERWISE.
10. EXPORT CONTROL
10.1 Reseller acknowledges that Products and technical data provided by USJ are subject to United States export control regulations. Exportation, re-exportation or diversion contrary to U.S. law is prohibited, and exports by Reseller may not occur without USJ's written consent. Reseller shall defend and hold USJ harmless from any claims, damages or liability resulting from a breach of the foregoing.
11.1 This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous discussions, understandings, and agreements regarding such subject matter. This Agreement may not be modified or amended except in a writing signed by authorized representatives of both parties.
11.2 Reseller's rights and obligations under this Agreement may not be assigned, delegated, or transferred in any manner without USJ's written consent. Any attempted assignment by Reseller will be void.
11.3 No waiver by either party of any right arising from a breach of this Agreement will be construed as a continuing waiver, nor will failure to assert a breach or enforce rights be deemed to waive that breach or right, or any other breach or right, then or in the future.
11.4 Reseller is an independent contractor and is not a legal representative or agent of USJ for any purpose whatsoever. Reseller agrees not to make any warranties or representations without USJ's express authorization, or to create any other obligation on USJ's behalf.
11.5 All notices and other communications required by this Agreement will be in writing, and will be addressed to the receiving party at the addresses set forth at the top of this Agreement or at such other address as has been communicated in writing to the sending party. Such notice or communication will be deemed given: (a) when personally delivered to the receiving party; (b) two days after being sent to the receiving party by commercial overnight courier; or (c) five days after being sent by postage prepaid registered or certified U.S. mail.
11.6 This Agreement will be governed by and construed in accordance with the laws of the State of California (excluding its choice of law rules). Any controversy arising out of or relating to this Agreement shall be settled by binding arbitration in Santa Clara County, California under the auspices of the American Arbitration Association ("AAA"), in accordance with the AAA's Commercial Arbitration Rules then in effect. The prevailing party in any arbitration or other legal proceeding shall be entitled, in addition to any other rights or remedies it may have, to reimbursement of all reasonable expenses incurred thereby, including reasonable attorneys' fees, arbitrator's fees, and witness fees including those of expert witnesses.
11.7 Neither party may claim damages or terminate this Agreement because the other failed in or delayed performance (other than for payment of monies due) due to circumstances beyond its reasonable control, including but not limited to labor disputes, strikes, lockouts, shortages or inability to obtain labor, energy, components, raw materials or supplies, war, riot, epidemic, fire, flood, earthquake, acts of God, governmental action, or any other circumstance beyond the control of the non-performing party.
11.8 If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions will in no way be affected or impaired thereby.
11.9 The rights and obligations of the parties that by their nature are intended to survive expiration or termination of this Agreement will survive expiration or termination of this Agreement.
Intending to be legally bound, Reseller agrees to these terms and conditions, and evidences its consent by clicking the "Accept" option below.
Representative Authority Name and Title
Representative Authority Signature and Date
Products from the selected (via checkbox) categories below are approved by USJ for resale for this vendor account, with the exception of any products listed in the “Prohibited” section. As a Vendor, you are approved to sell the following items according to the following terms.
Please note that many of our long-established vendors have exclusive-rights agreements on some of our products and brands, so not everything can be sold to all vendors. USJ appreciates your understanding.
APPROVED ITEMS FOR WHOLESALE
□—Not Approved to Sell Brand/Item/Category
■—Approved to sell Brand/Item/Category
■ U.S. Jaclean, ■ Daiwa Felicity, ■ Daiwa Massage, Hattori, Lindo, Vital Energy, HB-101, Lady of Allure, Felicity, Kokubo, Honeybunch Pure, Instawarm
■ Massage Therapy Products
■ Handheld Electric Massagers, ■ Manual Massage Tools, ■ Back, Seat, Neck Massagers, Rechargeable Massagers, Chi Swings
Small Health and Wellness Items
Health and Fitness Tools, Massaging Shoes and Insoles
Large Fitness Items
Kitchen, Beauty, Supplements
Household Products, Aroma Products, Undergarments
Beauty, Bath, Personal Care
Supplements, Fertilizer, Food Items, Bedding
Massage Chairs – Approval Required
■ Exclusive Models – Approval Required
■ Detox Patch/Detox Patch Gold, ■ Rodeo Core, Vitality Swing, Swing master, ■ Square Bike, Ninja 2, Aroma Globe, ■ Foot Vibe Pro, Max Pro, ■ Reflex Roller, Swing master, ■ Wash Mate Deluxe, Tapping Pro Cordless, Multipurpose Body Massager, ■ Acu Palm, ■ Figure Trimmer