Wholesale & Reseller Agreement
1. Our Agreement.
This Reseller Application is subject to acceptance by Beauty by Earth (“BBE”). Upon acceptance, this Reseller Application, together with the following Terms and Conditions, shall constitute the entire agreement (the “Reseller Agreement”) between BBE and the individual or entity identified on the Reseller Application (“Reseller”). The Reseller Agreement defines BBE’s and Reseller’s rights and duties and contains important information about the promotion of BBE Products. Reseller represents and warrants that she, he or it has read, understands, and agrees to abide by the Reseller Agreement, including the agreement to arbitrate set forth in Section 11 below and the class action wavier set forth in Section 12 below, that the information provided on the Reseller Application is accurate and complete, and that Reseller may perform her/his/its obligations without breach of any other agreement. The Reseller Agreement contains the entire agreement between BBE and Reseller and supersedes and replaces any and all prior representations, warranties, negotiations, and agreements with respect to the subject matter hereof. BBE may at any time revise these Terms and Conditions by posting the amended Terms and Conditions on the BBE Website and any changes or additions will be effective immediately upon posting. Resellers must check the BBE Website frequently for revisions to these Terms and Conditions.
2. Purpose; Independent Contractor.
Reseller is not, and shall not represent herself, himself or itself to be an employee, agent, affiliate, or representative of BBE or a purchaser of a franchise or a business opportunity. The Reseller Agreement does not create an employee/employer relationship, agency, partnership, or joint venture between BBE and Reseller. Reseller shall not be treated as an employee of BBE for any purpose, including without limitation, for federal, state or local tax purposes. Reseller is solely responsible for all decisions made and all costs incurred with respect to her, his or its Reseller activities, and will assume all entrepreneurial and business risk in connection therewith. Reseller is solely responsible for all income tax returns and payments required to be filed with or made to any tax authority with respect to her/his/its activities. BBE will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on Reseller’s behalf.
3. Reseller Commitments.
Reseller agrees to: (a) conduct her/his/its Reseller activities with a high standard of professionalism and in a manner that reflects favorably at all times on BBE and the BBE Products; (b) avoid deceptive, misleading, or unethical practices; (c) make no representations, warranties, or other statements with respect to the BBE Products or any business opportunity that are different from or in addition to those in the Reseller Agreement and BBE marketing materials; (d) not bind BBE to any agreement, or pursue, waive, or compromise any of BBE’s rights (or purport to do any of the foregoing); (e) reverse engineer any BBE Product or attempt to reformulate, manufacture, or produce the BBE Products or any product substantially similar to the BBE Products; (f) periodically review these Terms and Conditions, as amended and from time to time and posted on the BBE Website; and (g) otherwise comply at all times with, and accept exclusive liability for non-compliance with, all applicable laws, regulations, rules, and these Terms and Conditions.
4. Product Ordering and Sales; No Inventory Requirements.
Reseller understands that although there are minimum purchase requirements as detailed on the BBE Website, there is no minimum inventory requirement. Reseller and end-user customers may purchase BBE Products through the BBE Website. BBE may accept or decline any order for BBE Products, and may cancel or delay shipment of BBE Products for any reason, including without limitation if Reseller fails to make any required payment or otherwise fails to comply with the Reseller Agreement. Title and risk of loss to the products will pass to Reseller on delivery of the products to Reseller by the carrier of BBE’s choice. BBE has the right to communicate and do business with any and all customers acquired through Reseller’s efforts without restriction of any kind.
5. Sales and Marketing Restrictions; No Third-Party Platforms.
Reseller may not market or sell the BBE Products in retail outlets or other locations open or available to the public.
Reseller shall not market or sell BBE Products on sites or domains that are not owned or operated by Reseller, including Amazon (US, CA, MX, UK, FR, DE, IT, IN, CN, JP), Walmart, Jet, eBay, Rakuten, Alibaba, Alibaba Express, Groupon, LivingSocial, or other deal sites or third-party platforms or marketplaces.
6. Minimum Advertised Price.
Reseller shall not market or sell any BBE Product at below the minimum advertised price (“MAP”) set by BBE and as communicated to Reseller from time to time. In addition, Reseller may not offer any specialized pricing, such as “Two-for-One,” “Buy Two, Get One Free,” or any “Value Packs” that would have the effect of reducing the per unit MAP.
7. Sales Taxes.
Reseller is solely responsible for collecting and remitting applicable sales tax to the appropriate tax agency based on the purchase price of the BBE Products sold to Reseller’s customers.
8. Customer and Reseller Refunds and Returns.
Reseller acknowledges and agrees that Reseller is solely responsible for returns of BBE Products purchased from Reseller by a customer. BBE will only accept Reseller returns of BBE Products that are unopened, in original packaging, undamaged, marketable by BBE and returned to BBE within 30 days of purchase by Reseller.
9. BBE Content and Confidential Information.
BBE is and shall be the sole and exclusive owner of all rights, titles, and interest in and to BBE’s registered and unregistered trademarks and service marks (collectively, “BBE Trademarks”), website copy, slogans, marketing materials, look-and-feel, and all intellectual property and proprietary rights therein (collectively, “BBE Content”), subject only to the specific licenses granted to Resellers in the Reseller Agreement, and BBE expressly reserves all such rights. Except as expressly set forth in the Reseller Agreement, Resellers shall not acquire or claim any rights in any BBE Trademarks or BBE Content. Reseller shall not use or disclose any Confidential Information of BBE except as expressly permitted by this Reseller Agreement. BBE hereby gives notice to Reseller of the whistleblower protections of the Defend Trade Secrets Act. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. Reseller agrees to give notice to Reseller’s employees, if applicable, of the protections of this provision with regards to any confidential information or trade secrets that are subject to this Reseller Agreement.
10. Warranty; Defective Product Returns; Disclaimer.
BBE warrants that the BBE Products as and when delivered by BBE shall be free from material defects. BBE’s sole obligation, and Reseller’s sole and exclusive remedy, for breach of this warranty shall be to report any damaged or defective BBE Product within 10 days following receipt of such BBE Product from a BBE approved shipper, return such damaged or defective BBE Product within 30 days for receipt accompanied by a valid Return Authorization Number supplied by BBE, and receive a replacement or credit. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BBE HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE BBE PRODUCTS, THE BBE TRADEMARKS, THE BBE CONTENT, AND ANY OTHER SUBJECT MATTER OF THE RESELLER AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF CONTENT, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, AND CORRESPONDENCE TO DESCRIPTION.
11. Dispute Resolution.
Any claim or dispute arising under or relating to the Reseller Agreement (whether arising in contract, tort, claim of fraud or fraudulent inducement, or otherwise) that cannot be resolved through negotiation shall first be mediated in Dallas County, Texas, and if it cannot be resolved by mediation, is subject to and shall be settled exclusively by final, binding arbitration before a single arbitrator in Dallas, Texas, in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any provision of the Reseller Agreement, or to rule upon or grant any extension, renewal, or continuance of the Reseller Agreement. The arbitrator shall not have the power to award special, incidental, indirect, punitive or exemplary, or consequential damages of any kind or nature, including, without limitation, damages for lost profits, lost business, or lost opportunities, however caused. All arbitration proceedings will be confidential. Although the Reseller Agreement is made and entered into between Reseller and BBE, BBE’s affiliates, owners, members, managers, and employees (“Related Parties”) are intended to be third-party beneficiaries of the Reseller Agreement for purposes of the provisions of this Reseller Agreement referring specifically to them, including this agreement to arbitrate. The parties acknowledge that nothing contained herein is intended to create any involvement by, responsibility of, or liability for, the Related Parties with respect to any dealings between Reseller and BBE, and the parties further acknowledge that nothing contained herein shall be argued by either of them to constitute any waiver by the Related Parties of any defense which Related Parties may otherwise have concerning whether they can properly be made a party to any dispute between the parties.
12. Class Action Waiver.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither Reseller nor BBE will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
13. Limitation of Liability.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY OR ANY FAILURE OF ESSENTIAL PURPOSE, IN NO EVENT SHALL BBE OR ANY OF ITS RELATED PARTIES BE LIABLE TO RESELLER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST BUSINESS, AND LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS RESELLER AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING, BUT NOT LIMITED TO, THE BBE PRODUCTS, PROGRAM, BBE MARKETING MATERIALS, OR BBE BUSINESS SUPPLIES), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF BBE OR ANY OF ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Reseller agrees to indemnify, defend, and hold harmless BBE (together with its Related Parties, agents, other Resellers, stockholders, members, employees, directors, officers, and attorneys, collectively “Indemnified Parties”) from and against any and all losses or liabilities (including attorneys’ fees) they may suffer or incur as a result of Reseller’s breach or alleged breach of the Reseller Agreement. Without limitation of the foregoing, Reseller shall specifically indemnify the Indemnified Parties against any losses or liabilities they may suffer or incur as a result of Reseller being deemed an employee, agent, or holding any status other than an independent contractor, and Reseller’s tax liabilities.
15. Term; Termination.
The term shall commence on the date of BBE’s acceptance of Reseller’s Application and continue until the date which is 30 days following the date on which either BBE or Reseller gives the other notice of termination.
BBE will not be liable to any Reseller for damages of any kind solely as a result of terminating the Reseller Agreement, and termination of the Reseller Agreement will be without prejudice to any other right or remedy of BBE under the Reseller Agreement or applicable law. Upon any expiration or termination of the Reseller Agreement, the following sections of this Reseller Application shall survive and continue: Sections 3, 7, 8 through 14, 16.
The Reseller Agreement shall be governed by the law of Texas without giving effect to any choice of law rule that would cause the application of laws of any jurisdiction other than the laws of Texas. If any provision contained herein is found by a court of competent jurisdiction or an arbitrator to be invalid, illegal, or unenforceable in any respect, such provision shall be ineffective, but shall not in any way invalidate or otherwise affect any other provision. The Reseller Agreement may not be assigned by Reseller without the express written permission of BBE, but may be freely assigned by BBE, and shall be binding on each of the parties’ successors and permitted assigns. Any attempted assignment in violation of this Section shall be void.