THIS SALES AGREEMENT (this “Agreement”) is made and entered into by and between slumberBUMP, L.L.C. (“slumberBUMP”), and the purchaser identified on the signature page hereof (“Purchaser”). slumberBUMP and Purchaser are each a “Party” hereunder, and are, collectively, the “Parties.”
The definitions of capitalized terms used in this Agreement are set forth in Exhibit A.
2.1 Product Ordering Process.
2.2 Product Delivery Process.
3.1 Exclusive Distribution Rights. Purchaser is granted the exclusive right for a period of one (1) year from the date of this agreement, to market, distribute and sell Products. Purchaser’s exclusive right granted hereunder may be extended for additional one (1) year periods at the sole discretion of slumberBUMP. Purchaser agrees to use its commercial best efforts to maximize the distribution of Products through its current and future distribution channels.
3.2 Restrictions on Distribution. Purchaser agrees to not market, distribute or sell Products to any online marketplace including, but not limited to Amazon.com, eBay.com, Buy.com, and Overstock.com, to not market, distribute or sell Products for resale to any eCommerce only company or via any website without slumberBUMP’s prior written consent, which slumberBUMP may grant or withhold in its sole discretion. Purchaser agrees to market, distribute and sell Products in approved and authorized channels including such channels as Medical, Pharmacy, and HME channels in local and national accounts.
3.3 Limited Product Warranty. slumberBUMP provides the following limited lifetime warranties with respect to its Products as follows (the “Limited Product Warranty”): (i) defect in workmanship of the slumberBUMP Sleep Belt; and (ii) defect in workmanship of the internal air bladder; and in any case solely as a result of one or more manufacturing defects. The Limited Product Warranty shall be void and slumberBUMP shall have no obligation to replace any or responsibility with respect to or in connection with any problem, damage or failure that is caused, in whole or in part, by any use of any relevant Product in a manner for which it was not intended, or by any abuse of such Product.
3.4 No Additional Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 3.3, slumberBUMP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF ANY OTHER MATTER. Except as specifically set forth in Section 3.3, slumberBUMP sells the Products to Purchaser, and Purchaser purchases the Products from slumberBUMP, “AS IS” and slumberBUMP neither assumes nor authorizes anyone to assume for it any other obligation or liability (or to make or give any warranty) in connection with the Products. Without limiting the generality of the foregoing, Purchaser specifically acknowledges and agrees that: (i) the Products, and any and all statements contained in any slumberBUMP Content have not been evaluated by the United States Food and Drug Administration; and (ii) the Products are not intended to diagnose, treat, cure, or prevent any disease.
3.5 Claims Under the Limited Product Warranty.
3.6 Right to Return Products Shipped in Error.
3.7 Unauthorized Returns. slumberBUMP shall have no obligation to accept any Product returned by Purchaser in a manner that does not comply with the terms of this ARTICLE 3. In addition to any other remedy available to slumberBUMP pursuant to the terms of this Agreement or otherwise, any return submitted by Purchaser in a manner that does not comply with the terms of this ARTICLE 3 shall be subject to a handling charge payable to slumberBUMP in an amount equal to twenty percent (20%) of the price for such Product, as set forth on slumberBUMP then-current price list, plus any shipping, insurance or other charges paid or incurred by slumberBUMP in redelivering such Product to Purchaser.
4.1 Use of Trademarks. Subject to the terms and conditions set forth herein, slumberBUMP hereby licenses to Purchaser the non-exclusive right to use the Trademarks in connection with Purchaser’s marketing, sales and distribution of the Products solely for the term of this Agreement and in accordance with the terms of this Agreement. Purchaser shall only use the Trademarks in a manner consistent with the slumberBUMP Trademark Style Guide, as delivered by slumberBUMP to Purchaser from time to time. Purchaser shall not use any name, trademark, trade name, logo, slogan, label, title or insignia now or hereafter owned, adopted or used (even descriptively) by slumberBUMP in connection with the Products or slumberBUMP’s business or, or any name, trademark, trade name, design, logo, slogan, label, title or insignia that is visually or phonetically similar thereto, without slumberBUMP’s prior written consent.
4.2 Compliance with Laws. Purchaser shall use the Trademarks in strict compliance with all Applicable Laws. Upon the request of slumberBUMP, Purchaser shall execute such documents as may be necessary to establish and preserve slumberBUMP rights in and to the Trademarks.
4.3 slumberBUMP Ownership of Trademarks. Purchaser specifically acknowledges slumberBUMP’s ownership of all of the Trademarks and recognizes and affirms that: (i) Purchaser’s rights under, and activities pursuant to, this Agreement shall not create in Purchaser any right, title or interest in any Trademark; and (ii) all use of the Trademarks by Purchaser, and any goodwill arising from such use, shall inure solely to the benefit of slumberBUMP.
4.4 Validity of Trademarks. Purchaser shall not at any time, either directly or indirectly, put to issue the scope, validity or ownership of any Trademark and shall not do any act, either directly or indirectly, that in any way may impair said scope, validity or ownership of any Trademark. Nothing herein shall give Purchaser any interest in any Trademark, nor shall Purchaser ever claim that its use of any Trademark has created any rights, title or interest in Purchaser.
4.5 No Removal of Trademarks. Purchaser shall not remove any Trademark from any Product that it sells, distributes or otherwise disposes.
4.6 Defense of Trademarks. Purchaser acknowledges and agrees that slumberBUMP has reserved the right to prosecute and defend all suits involving any of the Trademarks and to take any action or proceeding that it deems desirable for the protection thereof. Purchaser shall notify slumberBUMP promptly of any infringement of any Trademark, or of any pending or threatened litigation involving any Trademark, of which it becomes aware. Purchaser shall have no right to prosecute or defend any action or suit involving any Trademark without the prior written consent of slumberBUMP.
4.7 Injunctive Relief. Acknowledging that the damages sustained by slumberBUMP or slumberBUMP as a consequence of any breach by Purchaser of any of its obligations under this ARTICLE 4 may be difficult or impossible to measure in monetary terms, Purchaser hereby agrees that slumberBUMP shall be entitled to have the continuation of any such breach permanently enjoined in any court of competent jurisdiction.
5.1 Marketing Materials. Purchaser shall submit to slumberBUMP, for slumberBUMP’s approval (which slumberBUMP may grant or deny in its sole discretion) and prior to any use thereof any advertising or promotional materials Purchaser desires to use in connection with selling the Products, and any other proposed publication or use of any Trademark. slumberBUMP may provide to Purchaser Product advertising and promotional materials, as well as specifications, images, and other textual, graphical and/or multimedia content regarding the Products for use in preparing advertising and promotional material (“slumberBUMP Content”). Subject to any limitations that slumberBUMP places on the use of slumberBUMP Content by notification to Purchaser, slumberBUMP hereby grants Purchaser a limited, revocable license to use, exhibit and display, reproduce and publish (but not to modify, alter or amend) such slumberBUMP Content for the purpose of advertising and promoting the Products.
5.2 Compliance with Applicable Laws. Purchaser, at its own cost and expense, shall: (i) obtain all necessary licenses, permits and other approvals and authorizations from relevant Governmental Authorities to allow it to market and sell the Products and to otherwise carry out its obligations herein; and (ii) comply with all Applicable Laws in promoting, marketing and selling the Products and in the exercise of its rights and performance of its obligations under this Agreement.
5.3 Payment of Costs. Purchaser shall pay all costs and expenses incurred in connection with the performance of its activities, duties and obligations herein. Without limiting the generality of the foregoing, Purchaser shall be solely responsible for the payment of all amounts: (i) owed to or on behalf of any of its employees, representatives or agents; (ii) owed to any landlord or lessor of any space leased by Purchaser in connection with Purchaser’s sale of the Products or the operation of its business; and (iii) owed to any Governmental Authority (including, without limitation, any and all income, sales, excise and use taxes) in connection with Purchaser’s sale of the Products or the operation of its business.
5.4 Report of Complaints. Purchaser shall report to slumberBUMP any and all complaints received by Purchaser relating to the Products, as and when Purchaser becomes aware of such complaints.
5.5 Product Sale Locations. Purchaser shall not directly, indirectly or through any third party market or sell Products from any physical location outside the scope of section 3.2 that has not been approved, in writing and in advance, by slumberBUMP, which approval slumberBUMP may withhold or grant in its sole discretion.
5.6 Non-Compete. During the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement for any reason, Purchaser and its principals who execute this Agreement shall not directly or indirectly, on its or their own behalf or on behalf of any other person or entity, whether as an employee, officer, director, partner, investor, shareholder, member, consultant or agent, sell or purchase for resale any ion power band product or any other product similar to the Products within a 50 mile radius of any location where Purchaser was offering Products for sale at the time of the termination or expiration of this Agreement, or had offered Products for sale at any time during the term of this Agreement, nor within a 50 mile radius of any location where Products are being sold at the time of the termination or expiration of this Agreement.
6.1 Term. This Agreement shall become effective as of the date set forth on the signature page below and shall remain in full force and effect until terminated pursuant to the terms hereof.
6.2 Default. In the event that either Party (the “Defaulting Party”): (i) defaults in the performance of any of its duties or obligations set forth in this Agreement and such default is not cured within thirty (30) days after written notice is given by the Party (the “Non-Defaulting Party”) asserting the default; or (ii) defaults in the payment of any amount due to the Non-Defaulting Party under this Agreement and does not cure such default within five (5) days after written notice is given by the Non-Defaulting Party, then the Non-Defaulting Party may terminate this Agreement immediately upon written notice to the Defaulting Party.
6.3 Insolvency. Either Party may terminate this Agreement, effective immediately, by providing written notice to the other Party if: (i) the other Party shall be adjudged insolvent or bankrupt or shall institute proceedings seeking relief, reorganization or arrangement under any Applicable Law relating to insolvency; (ii) an involuntary petition under any Applicable Law relating to insolvency shall have been filed against the other Party and the petition is not contested within ten (10) days or is not stayed or dismissed within sixty (60) days after the filing of the petition; (iii) the other Party shall make an assignment for the benefit of its creditors; (iv) a receiver, liquidator or custodian shall be appointed for all or a substantial part of the other Party’s assets; or (v) or the other Party’s business is liquidated, dissolved or wound up.
6.4 Termination by slumberBUMP. slumberBUMP may terminate this Agreement, effective immediately by providing written notice to Purchaser:
6.5 Effect of Termination. Following any termination of this Agreement:
6.6 Transfer of Business. Prior to marketing its Business for sale, Purchaser will notify slumberBUMP of the specific terms of sale that would be acceptable to Purchaser and will negotiate with slumberBUMP in good faith to sell the Business to slumberBUMP. The purchaser also grants to slumberBUMP the first right to purchase Purchaser’s Business on terms no less favorable than an offer acceptable to Purchaser from a third party. If slumberBUMP elects to not purchase the Business, the agreement (the “Sale Agreement”) to sell or transfer the Business to any third party (the “Buyer”) will include a requirement that the Buyer enter a wholesale product supply agreement with slumberBUMP using slumberBUMP’s then current Wholesale Product Supply Agreement form as a condition to the completion of the sale of the Business to the Buyer. Purchaser grants to slumberBUMP the right to stand in the place of Purchaser and declare the Sale Agreement void ab initio if the Buyer does not enter into a wholesale product supply agreement with slumberBUMP.
7.2 Indemnification by slumberBUMP. slumberBUMP shall be liable to and shall indemnify, defend and hold Purchaser and its affiliates and their respective owners, officers, employees and permitted assigns (collectively, the “Indemnified Purchaser Parties”) harmless from and against any and all Losses that may be imposed on, incurred by or asserted against any Indemnified Purchaser Party relating to or based upon: (i) a material breach by slumberBUMP of any of its obligations, representations, warranties or covenants contained in this Agreement; or (ii) any unlawful or wrongful act, omission or negligence by slumberBUMP.
7.3 Limitation of Liability. In no event will either party be liable to the other party for any indirect, special, incidental, punitive or consequential damages (including, but not limited to, lost profits or revenue, lost business opportunities or loss of goodwill) arising out of, relating to or in connection with this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not either party has been advised of the possibility of such loss or damage. The parties have agreed that these limitations will survive and apply under all circumstances.
8.1 Notices. Any notices or other communications required or permitted by this Agreement shall be in writing and shall be delivered either by personal delivery, by a nationally recognized overnight courier service, by facsimile, electronic mail or other electronic means, by first class mail or by certified or registered mail, return receipt requested, addressed to the addresses listed on the signature page hereof, or to such other address as either Party shall have designated to the other by written notice given in the manner set forth above. Notices and approvals required under this Agreement shall be deemed given: one day after sent, if sent by overnight courier; when delivered and receipted for, if hand delivered; when received, if sent by facsimile, electronic mail or other electronic means or by first class mail; or when receipted for (or upon the date of attempted delivery where delivery is refused or unclaimed), if sent by certified or registered mail, return receipt requested.
8.2 Assignment and Transfer. Purchaser shall not, without the prior written consent of slumberBUMP (which consent may be granted or withheld in slumberBUMP’s sole discretion) assign this Agreement or its rights and obligations hereunder under any circumstances, either voluntarily or involuntarily, by operation of law or otherwise. Any such attempted assignment in contravention of such prohibition shall be void from the date thereof.
8.3 Waiver. Neither Party hereto shall be deemed to have waived any of its rights, powers or remedies hereunder unless such waiver is made in writing signed by such Party. No such waiver shall extend to any subsequent or other default or impair any right relating thereto except to the extent expressly so waived. No course of dealing between the Parties, and no delay or forbearance in exercising any right hereunder, shall imply or otherwise operate as a waiver of any right of a Party.
8.4 Relationship of Parties. The Parties intend that this Agreement shall be considered a contractual relationship between the Parties and do not intend that this Agreement shall result in the creation of a joint venture, general partnership or any similar form of organization or agency relationship.
8.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument and it shall not be necessary that any single counterpart bear the signatures of all Parties. Execution and delivery of this Agreement by exchange of electronic or facsimile copies bearing the facsimile signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such electronic or facsimile copies shall constitute enforceable original documents.
8.6 Further Assurances. The Parties agree that, upon request, they each shall do such further acts and deeds, and shall provide, execute, acknowledge, deliver and/or record such books and records and such other documents and instruments as may be reasonably requested by the other Party or necessary or appropriate from time to time to evidence, confirm or carry out the intent and purposes of this Agreement or to confirm compliance by a Party to the terms and conditions of this Agreement.
8.7 Severability. If any one or more of the provisions contained in this Agreement shall be held or determined to be invalid, illegal or unenforceable for any reason, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the Parties as herein expressed, and such invalidity shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect.
8.8 Force Majeure. No Party shall be liable for failure to perform, or for any delay in performing, its obligations under this Agreement, other than monetary obligations, when such failure or delay is due to force majeure, provided the Party claiming the existence of force majeure gives notice to the other Parties within fourteen (14) days of the commencement or continuance of the circumstances that constitute such force majeure. The term “force majeure” shall include any cause or contingency beyond the control of the Party concerned. No Party shall be relieved from performing any pending obligations under the Agreement when the existence of force majeure has been eliminated or terminated.
8.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, exclusive of its rule regarding conflicts of laws. Utah state courts located in Washington County, Utah, and United States federal courts located in the State of Utah shall have sole and exclusive jurisdiction of any claims or disputes arising under or relating to this Agreement.
8.10 No Third Party Beneficiaries. This Agreement is for the exclusive benefit of the Parties, and no other person or entity, including any affiliate or creditor of either Party hereto, shall have any right or claim against either Party by reason of this Agreement or shall be entitled to enforce any provision of this Agreement against either Party.
8.11. Interpretation. Words used herein shall be deemed and construed to include any number, singular or plural, and any gender, masculine, feminine or neuter, as the context requires. Article and section headings used in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement. Exhibits attached hereto, as the same may be added, amended or replaced from time to time, shall be deemed to be incorporated into this Agreement by the respective references thereto. This Agreement is among financially sophisticated and knowledgeable parties and is entered into by the Parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the Party who prepared, or caused the preparation of, this Agreement or the relative bargaining power of the Parties.
8.12 Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties, and supersede all prior oral and written negotiations between the Parties, with respect to the subject matter hereof. Except as otherwise specifically provided herein, no amendment, alteration, change or modification of this Agreement shall be effective unless set forth in a written document signed by the Parties.
8.13 Individual’s Obligations. If the Purchaser is a legal entity, the undersigned individual (the “Individual”) will agrees to be bound by all of the terms of this Agreement as if the Individual were the Purchaser hereunder and personally guaranties all payment and performance obligations of Purchaser.
“Applicable Law” with respect to either Party, means: (i) all applicable federal, state and local laws, statutes, regulations and regulatory guidelines; (ii) relevant judicial, regulatory and administrative interpretations; and (iii) determinations of any relevant Governmental Authority that relate to or are binding upon that Party.
“Business” means Purchaser’s activities related to the marketing, sales and distribution of Products, including the Purchaser’s ownership, rental and use of any carts, kiosks association with such activities.
“Business Day” means any day that is not a Saturday, Sunday, holiday or other day on which commercial banking institutions in Utah are authorized or obligated by law or executive order to be closed.
“Defective Product” has the meaning set forth in Section 3.5a.
“Ex Works slumberBUMP Warehouse” means Ex Works (as that term is defined in Incoterms 2000, as the same may be changed, amended or modified from time to time) slumberBUMP warehouse or shipping point, as named in the relevant Order Confirmation Form.
“Governmental Authority” means any federal, state, local, domestic or foreign governmental, regulatory or self-regulatory authority, agency, court, tribunal, commission or other regulatory or self-regulatory entity, the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Indemnification Event” has the meaning set forth in Section 7.
“Indemnified Purchaser Parties” has the meaning set forth in Section 7.1.
“Indemnified slumberBUMP Parties” has the meaning set forth in Section 7.2.
“Individual” has the meaning set forth in Section 8.13.
“Legal Fees” means all charges and fees payable by slumberBUMP or Purchaser, as the case may be, to its legal counsel.
“slumberBUMP Content” has the meaning set forth in Section 5.1.
“Limited Product Warranty” has the meaning set forth in Section 3.3.
“Losses” means any and all losses, liabilities, damages, costs and expenses, including, without limitation, any Legal Fees (including, without limitation, those incurred by an entity to enforce its rights hereunder against a Party), disbursements and court costs, in each case reasonably incurred by slumberBUMP, Purchaser or any other Indemnified slumberBUMP Party or Indemnified Purchaser Party, as applicable.
“Order Confirmation Form” has the meaning set forth in Section 2.1b.
“Order Confirmation Payment” has the meaning set forth in Section 2.1c.
“Product” or “Products” means slumberBUMP sleep belts for positional sleep therapy and slumberBUMP Extender belts, as well as any additional products marketed under the slumberBUMP Brand.
“Product Delivery Group” has the meaning set forth in Section 2.2a.
“Purchase Order” has the meaning set forth in Section 2.1a.
“Return Notice” has the meaning set forth in Section 3.5
“Trademark” means any trademark, trade name, service mark, logo, slogan, label, title or insignia set forth below, as the same may be amended from time to time by slumberBUMP, in its sole discretion, by providing notice to Purchaser:
Say Goodnight to Snoring.™
MINIMUM ADVERTISED PRICE POLICY
In order to protect slumberBUMP’s, LLC reputation for exceptional products and technology, slumberBUMP has established a Minimum Advertised Price for all of its products.
It is slumberBUMP’s policy to allow twenty-four (24) hours to bring advertising into compliance or slumberBUMP will cease supplying, for a period of thirty (30) days, the product in question to any Purchaser whose advertising of the product (or to any Purchaser who sells to another person whose advertising of the product) (i) fails to display a price equal to or greater than the Minimum Advertised Price for the product as specified on the current slumberBUMP price list, or (ii) contains a price lower than the Minimum Advertised Price set forth in this document. slumberBUMP’s policy is to cease supplying product to the Purchaser for a period of sixty (60) days for any second violation, one hundred twenty (120) days for any third violation and indefinitely for any subsequent violation of this policy.
This policy applies to all forms of advertising including mailings, catalogs, displays at consumer exhibitions and shows, point of sale displays, and media advertising, including, without limitation, the Internet and any other electronic network. Any price information relating to slumberBUMP products on an Internet website which can be accessed directly through any hypertext link or by any other method which uses the hypertext transfer protocol (http) is considered to be advertising for purposes of this policy. Electronic mail sent in direct response to a customer inquiry is not considered to be advertising.
This policy only applies to advertised prices, and does not relate to actual sales prices of any item. Further, this policy applies equally to all slumberBUMP’s customers. This policy may be modified by slumberBUMP from time to time. slumberBUMP does not seek, nor will it accept, any other agreement or understanding with respect to the prices a customer may advertise or charge at any time.
Schedule of Minimum Advertised Prices
|Product||MSRP||Online MAP||Retail MAP|
|slumberBUMP Sleep Belts||$89.99||$89.99||$69.95|
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