Adesso Authorized Reseller Program - Terms & Conditions
By participating in the Adesso Authorized Reseller Program (the "Program"), Reseller acknowledges that Reseller has read, understood, and agrees to be bound by these Terms and Conditions.
1. Eligibility & Appointment
The Adesso Authorized Reseller Program (the "Program") is open to those individuals who have registered with Adesso Albums, Inc. ("Adesso") to be part of the Program and have been qualified by Adesso to participate. Once Reseller have registered as a member of the Adesso Authorized Reseller Program and been qualified, Reseller will be provided with wholesale pricing information and be eligible to purchase Adesso products at wholesale and resell them.
Adesso hereby appoints Reseller as its reseller on a non-exclusive basis of the products as listed on the Wholesale Price List (“Price List”), and Reseller hereby accepts such appointment as Adesso’s non-exclusive reseller. Reseller is knowledgeable of the industry in which the Products are sold and used, and is familiar with potential customers in the Territory. Reseller has the expertise, staff and facilities to market, promote and sell the Products.
2. Products
a. The products which are the subject of this Agreement (the “Products”) are Adesso’s branded photo album guest books and various accessories more particularly described on the Price List, as may be amended from time to time.
b. Reseller will buy and resell Products under Adesso’s name and will maintain sufficient inventory of Products reasonably appropriate to promote the sales of Adesso’s products and fulfill Reseller’s customer service needs.
3. Scope of Authority
a. Reseller will conduct all of its business in its own name and in such manner intended to promote the goodwill and reputation of Adesso, and in compliance with all laws.
b. Nothing in this Agreement will be interpreted to constitute either party as the legal representative, partner, employee, agent for service of process, other agent or joint venturer of the other, nor will either party have any authority to bind the other in any respect, except to the extent that Reseller has been appointed Adesso’s exclusive sales agent in the Territory. Reseller will have no right or authority to assume or create, in writing or otherwise, any obligation of any kind in the name or on behalf of Adesso. Adesso will have no right or authority to assume or create, in writing or otherwise, any obligation of any kind in the name or on behalf of Reseller.
4. Purchase Orders, Offers and Acceptances
a. Submission of Purchase Orders
Reseller will submit to Adesso written purchase orders for Products which will include the Products ordered, quantities requested, delivery dates and shipping instructions. All purchase orders are subject to and subordinate to the terms and conditions of this Agreement. Orders placed by Reseller will be binding on Adesso when accepted by Adesso. Accepted orders will be acknowledged in writing or electronically within ten (10) business days of receipt thereof.
5. Prices, Shipping and Payment
a. Prices and Other Charges
The purchase price for each of the Products to be sold by Adesso to Reseller pursuant to this Agreement is set forth on the current Price List. Adesso may at any time change the price applicable to any Product by giving thirty (30) days notice to Reseller. All prices will be FOB Adesso’s facility in San Francisco. All actual, out-of-pocket freight, insurance, custom handling and forwarding agents fees, import duties and all other charges applicable to Products from the time they are placed in the possession of a carrier at Adesso’s facility in San Francisco for delivery to Reseller will be borne by Reseller.
b. Shipment and Title
Adesso will arrange for shipment of Products to the address for Reseller first set forth above, or to such other addresses as Reseller may advise Adesso in writing. Adesso will not drop ship to Reseller’s customers. All costs of shipment of Products from Adesso’s warehouse will be for the account of, and borne by, Reseller. Title to and risk of loss of Products will pass to Reseller at the point where such Products are placed on board a carrier at Adesso’s warehouse.
c. Payment of Purchase Price
Reseller will pay Adesso. Payment will be made in US Dollars either by credit card or cash in advance. Product will ship within two (2) business days of receipt of payment in full for the order. No other terms of payment will be acceptable unless agreed upon in a writing signed by Adesso prior to acceptance of Reseller’s purchase order. Reseller will not take any credit or offset against accounts owing Adesso without Adesso’s prior written authorization. Adesso may, upon thirty (30) days’ advance written notice to Reseller, change the amount or terms of credit to be allowed Reseller, including requiring cash in advance of shipment if Reseller’s credit worthiness in Adesso’s reasonable judgment makes such action necessary.
6. Shipment, Substitution of Products
a. Addition, Deletion, Substitution and Modification of Products
Adesso may add, delete or modify products available for sale by Reseller upon thirty (30) days’ advance written notice. In the event Adesso desires to do so subsequent to acceptance by Adesso of a purchase order for a Product affected by such modification, Adesso will effect delivery of such Products or provide a functionally equivalent product which will otherwise fulfill its obligation to Reseller under such purchase order.
7. Reseller Obligations
a. Reseller shall use its best efforts to promote the use and sale within the Territory of all the Product(s) and Non-Standard Product(s) contemplated under this Agreement and to develop and supply as broad a market therefor as shall be possible.
b. Reseller shall maintain an adequate, competent and aggressive sales organization to sell the Product(s) and Non-Standard Product(s) and shall maintain adequate facilities to assure the prompt handling of all business generated under this Agreement.
c. Reseller shall maintain a sufficient inventory of all Adesso Product(s) at all appointed locations such that customer demands will be substantially satisfied without undue delay. Reseller shall maintain a minimum aggregate inventory equal to its average unit sales for a ninety (90) day period.
8. Warranty
Adesso warrants the Products according to the terms set forth as follows:
a. Warranty
Adesso warrants that each Product sold pursuant to this Agreement will, for a period of one (1) year from the date of shipment to Reseller, be free from defects in material and workmanship and conform to Adesso’s published specifications for the Product, in each case, under normal use, conditions and service. Adesso agrees to repair or replace at its option, without charge, any defective Product which is returned to Adesso according to the terms set forth below for confirming inspection for warranty defect within the applicable warranty period.
Adesso represents and warrants that it has the authority to enter into and perform all of the terms, conditions and covenants to be performed by it under this Agreement, including but not limited to, the grant to Reseller of the right to be the exclusive sales agent for Adesso’s Product in the Territory.
b. Express Warranties and Disclaimer
EXCEPT AS SET FORTH ABOVE, ADESSO EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR THEIR INTENDED PURPOSE AND USE, AND INFRINGEMENT.
c. Procedure for Warranty Return
To obtain the benefit of Adesso’s warranty in Section 8.a., Reseller must return the defective Product to Adesso, freight prepaid, in accordance with the policies that Adesso may establish from time to time, no later than sixty (60) days from the date the defect is discovered. Reseller will include a written report identifying the defect(s).
9. Proprietary Trademarks and Copyrights
a. Proprietary Rights. Adesso is the owner or licensee of all of the intellectual property pertaining to the Products, including without limitation all trademarks, trade names, service marks, corporate names, patents, patents pending, know how, logos, designs, including but not limited to the trademarks listed below in Section 9.b (the “Proprietary Rights”), and Reseller will not do anything to infringe on those Proprietary Rights. Nothing in this Agreement gives Reseller any license, title or any other interest in or right to use the Proprietary Rights.
b. Registered Trademarks. Reseller will recognize and attribute the following trademarks in all promotions and marketing of Products to Adesso:
Adesso Albums®
Instant Photo Guest Book®
How you keep now forever®
c. Use and Attribution. Distributor will use the registered trademark symbol and give Adesso the proper attribution for the mark when using the trademarks listed above in Section 9.b as follows:
“Instant photo guest book is a registered trademark of Adesso Albums, Inc.”
Adesso Albums is a registered trademark of Adesso Albums, Inc.”
“’How you keep now forever’ is a registered trademark of Adesso Albums, Inc.”
d. Reseller represents and warrants that it (including its affiliates) is the owner or licensee of the names provided in the reseller application, and such other names as it may acquire from time to time, and that nothing in this Agreement will give Adesso any license, title or any other interest in or right to use such names by reason of this Agreement.
10.
Inappropriate Market Venues
Adesso Products are manufactured and marketed as a high-end, luxury consumer item. In order to promote and preserve Adesso’s reputation for luxury and quality, Reseller will not sell Adesso products at discount outlets and auction houses, including online auction arenas including but not limited to Ebay.
11. Indemnification
a. By Reseller
Reseller will indemnify, defend and otherwise hold Adesso harmless from all costs, losses, damages or liabilities arising from any claim, suit or other legal or equitable proceeding brought or asserted against Adesso, to the extent that any claim is based upon a breach by Reseller of any of its representations and warranties made herein.
b. By Adesso
Adesso will at its expense indemnify, defend and hold harmless Reseller, its officers, directors, employees, affiliates or agents from and against any costs, losses, damages or liabilities arising from any claim for infringement of any patent, copyright, trademark or other intellectual property right related to the Products or their use or arising from any third party products liability claim or breach of warranty claim. If it is adjudicatively determined that a Product infringes or if the sale or use of a Product is, as a result, enjoined, then Adesso will, at its option and expense and in addition to its indemnity obligations set forth above, either (i) procure for Reseller the right to sell or use the Products; or (ii) replace the products with other suitable Products; or (iii) suitably modify the Products to be non-infringing; or (iv) if none of the foregoing are commercially reasonable, as determined by Adesso, accept return of the affected Product and in addition to the indemnity provided in this section, refund Reseller’s out-of-pocket costs for such Products.
12. Term
This Agreement will take effect as of the date first set forth above and, unless terminated pursuant to Section 14 herein, will remain in effect for one (1) year. It will be automatically renewed annually thereafter for additional terms of one year each.
13. Termination
a. This Agreement will continue in force as provided in Section 12 above, provided however, that either party may terminate this Agreement, either with or without cause, by giving the other party thirty (30) days’ notice of termination.
b. Said termination will not affect any obligation of the parties which has accrued prior to the date of termination, including Reseller’s obligation to pay for any products ordered, shipped, accepted or confirmed prior to termination. Any orders which remain open at the time of termination will be filled and closed within one hundred twenty (120) days from the date of termination. In no event will Adesso be required to repurchase any of the inventory held by Reseller at the time of termination or as a result of the termination.
c. In no event shall either party be liable to the other for any compensation, reimbursement, lost profits or prospective profits, incidental or consequential damages, or remedies or damages of any other kind or character, as a result of the expiration or any termination of this Agreement, even if the terminating party knew or should have known of the possibility of such damages.
d. Reseller agrees that it does not have and shall not acquire by performance hereunder any vested right in the sales responsibilities and privileges assigned to it under this Agreement, and that any investment made by Reseller in performing the obligations of this Agreement is made expressly with the knowledge that this Agreement may expire and not be renewed or may be terminated as provided herein, without the imposition of any liability to Adesso. Accordingly, Adesso will not pay nor be liable for any claims or penalties for loss of goodwill or any other damages or amounts in connection with the termination of this agreement. Reseller acknowledges that Adesso has all rights to Reseller’s customer list and Reseller will provide updated customer contact information to Adesso at any time upon Adesso’s request and upon termination of this agreement.
14. Confidentiality
a. Reseller recognizes and agrees that in the course of performing its duties, Reseller may acquire from Adesso confidential and proprietary information designated as such by Adesso which gives Adesso an advantage over its competitors who do not know or use it, including but not limited to techniques, designs, drawings, processes, inventions, developments, prototypes, sales and customer information, trade secrets and other confidential information concerning Adesso’s business, customers, pricing, design and engineering data, manufacturing processes and products and Reseller agrees, for itself, on behalf of its agents, employees, sales persons, representatives, officers, and directors to preserve the confidentiality of all such information so received or otherwise obtained by Reseller, that all such information will remain the sole property of Adesso, and further agrees that during the term of this Agreement and in the future, Reseller will not disrupt, damage, impair, or interfere with the business of Adesso, whether by way of interfering with or raiding its employee, disrupting its relationships with customers or potential customers, agents, resellers or vendors or otherwise. The terms of this section will survive termination or expiration of this Agreement. Reseller agrees that this is a key provision of the Agreement, that its breach will cause irreparable harm to Adesso, and that Adesso’s remedies for such breach will include without limitation injunctive relief.
b. Adesso recognizes and agrees that in the course of performing its obligations under this Agreement, Adesso may acquire from Reseller confidential information designated as such by Reseller which gives Reseller an advantage over its competitors who do not know or use it, including but not limited to specifications, know-how, techniques, designs, processes, inventions, developments, prototypes, sales and customer lists and other customer information, trade secrets and other confidential information concerning Reseller’s business, customers, pricing, design and engineering data, manufacturing processes and products, and Adesso agrees, for itself, on behalf of its agents, employees, sales persons, representatives, officers and directors to preserve the confidentiality of all such information so received or otherwise obtained by Adesso, that all such information will remain the sole property of Reseller, and further agrees that during the term of this Agreement and in the future, Adesso will not disrupt, damage, impair or interfere with the business of Reseller, whether by way of interfering with or raiding its employees, disrupting its relationships with customers or potential customers, agents, resellers, sales representatives or vendors or otherwise. Adesso acknowledges that Reseller will use the goodwill associated with Reseller’s name in order to promote and sell Adesso’s Products. As such, any customers developed by Reseller, either directly or through customer contacts or inquiries in the Territory forwarded by Adesso will be and remain the property of Reseller and subject to the provisions herein. The terms of this Section will survive termination or expiration of this Agreement.
14. Miscellaneous
a. This Agreement contains the entire understanding of the parties and supersedes any other oral or written agreements between them. No change or modification of this Agreement will be binding unless in writing and signed by both parties hereto. The terms contained in this Agreement will apply to all purchase orders hereunder, regardless of any provisions in the purchase orders or other business forms of the parties.
b. Notices to be given under this Agreement must be in writing and will be deemed given only when mailed, by certified or registered mail, or delivered by an overnight mail/delivery service such as Federal Express, DHL or UPS Red Service, addressed to the party to be notified at its address set forth at the beginning of this Agreement, wherein a signed receipt is obtained by the carrier.
c. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration in San Francisco, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered into in any court having jurisdiction thereof. This Agreement will be construed in accordance with the laws of California, except the arbitration clause which will be enforced pursuant to the Federal Arbitration Act and the parties agree to submit to jurisdiction in California.
d. In the event it is necessary to enforce any of the terms and conditions of this Agreement through arbitration, the prevailing party will be entitled to all costs and expenses incurred, including reasonable attorneys’ fees, in addition to any other relief to which it may be entitled.
e. The relationship created between Adesso and Reseller is intended to be personal in nature, and, consequently, this Agreement, will not be assignable, or transferable in any manner whatsoever by either party without the written consent of the other.
f. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or unenforceable by a court of competent jurisdiction, the remainder of the provisions of this Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated.
g. The failure or refusal by either party to enforce any provision of this Agreement or to require performance of any provision will not be construed as a waiver of such provision or to affect the validity of this Agreement or any part hereof, or the right of such party thereafter to enforce each and every provision of this Agreement according to its terms.
h. Neither party will be liable for any delay or failure to perform where such delay or failure is caused by labor disputes, strikes, war, riots, insurrection, fire, flood, accident, storm, earthquake or any act or God, or other causes beyond the excused party’s control.
i. These Terms and Conditions may be amended or modified by Adesso in its sole discretion at any time. Any such amendments will be posted to this page, and it is Reseller’s responsibility to review this page from time to time for such amendments. Continued placement of orders will be deemed acceptance of the amendment(s) as posted.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly assigned officers as of the date first set forth above.
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