THIS PURCHASE AND SUPPLY AGREEMENT (this “Agreement”) is made as of ____DATE OF AMBASSADOR COMMENCEMENT____________, (the “Effective Date”), by and between ABRAZA SKIN CARE, LLC, a Georgia limited liability company with an address located at 365 Peachtree Hills Avenue, Suite #202, Atlanta, Georgia 30305 (“Supplier”), and _______________________________________("Buyer”).
WHEREAS, Buyer wishes to purchase from Supplier certain products listed on the attached Schedule A (the “Products”) incorporated herein by this reference, and Supplier is willing to sell the Products to Buyer, all upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual agreements hereinafter set forth, the parties agree as follows:
- Term. The term of this Agreement shall commence upon the Effective Date and will continue until either Party provides at least thirty (30) days prior written notice of termination to the other Party (the “Term”).
- Price. The wholesale price of each Product is set forth on Schedule A attached hereto, notwithstanding any pricing set forth in any purchase order (“PO”) or Supplier written acknowledgement (“Acknowledgement”). Notwithstanding the foregoing, however, the wholesale pricing set forth in Schedule A is subject to change with thirty (30) days prior written notice to Buyer. All pricing is for Product only and excludes shipping unless expressly specified to the contrary in a PO and/or the Acknowledgment. If Supplier advances shipping costs, then Buyer will reimburse Supplier for all such costs.
- Delivery. Delivery dates are approximate. The Product will be delivered from Supplier’s location in Atlanta, Georgia (“Point of Shipment”). Buyer is responsible for all shipping, delivery, and insurance after delivery at the Point of Shipment, which will be billed to Buyer. Title and risk of loss for all Product shipped pursuant to this Agreement shall pass to Buyer upon delivery to Buyer’s carrier or common carrier, as the case may be, at the Point of Shipment, unless otherwise agreed to between the Parties in a separate writing executed by both Parties. Notwithstanding any provision in any PO or Acknowledgement, all orders require a lead time of thirty (30) days.
- Ordering. Buyer shall place orders for Product by a PO and shall furnish complete shipping instructions. Buyer shall place a minimum order of at least four (4) Products per order. Only the Product names, quantities, and desired delivery dates in a PO will have any legal effect; the terms and conditions of this Agreement are the only terms governing this relationship between the parties. Each of the Parties expressly rejects any supplemental, additional, or conflicting terms or conditions that may be submitted by the other Party, whether in a PO, an Acknowledgment, or otherwise (except any additional shipping charges that Buyer is required to reimburse to Supplier). All orders are subject to availability of Product(s).
- Resale and Resale Restrictions.
- Suggested Retail Price. Buyer shall resell the Products at the suggested retail price as outlined in Schedule B attached hereto and incorporated herein by this reference (“SRP”). The SRP is subject to change with thirty (30) days prior written notice to Buyer. Buyer is prohibited from increasing the SRP without the prior written consent of Supplier. In the event Buyer chooses to place the Products for sale at a discount, Buyer shall not discount the Products no more than ten percent (10%) below the SRP. Consent for special sale events beyond the ten percent (10%) discount by Buyer must be requested in writing to Supplier.
- Market Restriction. The Parties hereby agree that the customers and potential customers to which Buyer will promote and sell the Products are to those that meet the following criteria (“Market”): (i) they are end-users and not resellers of the Products; and (ii) the Products are not sold through any online auction or online store (i.e. EBay, Amazon, or other similar sites) without the express written consent of Supplier. If Buyer is planning to sell Products produced by Supplier in an online/marketplace store, such site must be owned or operated by Buyer and approved by Supplier in advance. This provision may also be modified on a case-by-case basis upon the prior written consent of Supplier.
- Buyer may also participate in Supplier’s ________AMBASSADOR__________ (the “Retail Program”). In the event Buyer is part of the Retail Program, Buyer will receive a special account link on Supplier’s website, for sole use by friends and family of Buyer. In the event Buyer’s friends and/or family purchase Products on Supplier’s website using Buyer’s link, Buyer will receive a commission split in the amount of Twenty Percent (20%) of the Gross Retail Price (as hereinafter defined) of the total order of Products per order (“Commission”). For purposes of this Agreement, “Gross Retail Price” shall be defined as the total price of the Products per order without any deduction of expenses. For all orders placed through the Retail Program, Supplier will directly ship to the end-customer.
- Limited Warranty, Damages and Remedy.
- SUPPLIER MAKES NO REPRESENTATION AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND SUPPLIER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER AGREES THAT SUPPLIER IS NOT LIABLE FOR ANY MISUSE OR MISREPRESENTATIONS BY BUYER AND/OR BUYER’S END-CUSTOMERS, AND BUYER AGREES TO INDEMNIFY SUPPLIER FROM ANY LEGAL ACTIONS THAT EMANATE FROM EITHER BUYER AND/OR END CUSTOMER’S INTENTIONALLY TORTIOUS CONDUCT AND/OR NEGLIGENCE IN THE USE, HANDLING, STORAGE AND DISPOSITION OF SUCH PRODUCTS.
- buyer agrees to indemnify, reimburse and hold harmless supplier, its members, officers, employees, and representatives (“supplier indemnified parties”) from all claims, damages, liabilities, losses, costs and expenses (including REASONABLE attorney’s fees and expenses) (collectively “damages”), arising out of related to or resulting from (i) any breach by buyer of any of buyer’s representations or warranties contained in this agreement; (ii) any injury, illness and/or death of any person or loss or damage to any property due to buyer’s handling, shipment, storage, resale, delivery, use or disposition of the products; and/or (iii) buyer’s acts or Omissions, including but not limited to, negligence and intentional or wilful misconduct.
(c) NEITHER PARTY shall be liable for any incidental, consequential, punitive, indirect, or special damages, including but not limited to, lost profits and/or lost production, whether arising under breach of warranty or contract, negligence, strict liability or other tort, indemnity, or any other theory of liability, EVEN IF THEY WERE FORESEEABLE AND EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE PROVISIONS OF SUBSECTIONS (a) AND (b) HEREOF, SUPPLIER’S liability for any and all claims, damages, and causes of action arising out of the sale, use, storage, delivery or non-delivery of any Product, performance of any services, or breach of any warranty (if applicable) shall be limited to the price (including third- party freight charges if paid by Buyer) paid to SUPPLIER for such Product. Buyer shall indemnify and defend SUPPLIER and hold SUPPLIER harmless from and against any and all loss, liability, damage, claim, or expense whatsoever (including but not limited to, attorneys’ fees and disbursements) arising out of or related to (i) any breach by Buyer of any provision of this Agreement, or (ii) any claims by third parties related to Buyer’s resale, use, or disposition of Product.
- Taxes. All sales or use taxes, excise taxes, or other taxes, transfer fees, or similar charges required to be paid in connection with the transportation, delivery, or sale of any Product sold hereunder pursuant to any federal, state, or municipal law or regulation now existing or hereafter enacted shall be paid by Buyer and, if known by Supplier, will be added to the prices specified herein.
- Payment Terms.
- Payment for all Product shall be made to Supplier in lawful money of the United States, without deduction or setoff, and shall be paid in full at the time each order is placed by Buyer. Payments may be made by credit/debit card, by check or by such other method of payment as agreed upon between the Parties. If for any reason there are unpaid balances on any orders, such unpaid balances shall accrue interest in the amount of ten percent (10%) per month until the outstanding balance is paid in full. If Supplier must seek legal action to enforce this Agreement or collect a debt, Buyer shall bear all legal fees.
Supplier accepts credit card and debit card payments electronically. Buyer acknowledges and agrees that no chargebacks shall be allowed for any service rendered or any payment made to Supplier.
Supplier will NOT accept checks.
(b) If Buyer is in default under this Agreement or, in Supplier’s reasonable opinion, the financial ability of Buyer to promptly pay the purchase price for Product is impaired or in doubt, Supplier has the option to immediately: (i) stop any and all future shipments or deliveries of Products and/or (ii) decline to make deliveries except for payment in advance of shipment or delivery on terms acceptable to Supplier.
- Product Shelf Life. The shelf life of the Products are approximately twelve (12) to eighteen (18) months, due to the natural ingredients of the Products. Buyer understands and agrees that it will not sell the Products past their respective shelf life date, and that Buyer cannot return any expired Products to Supplier.
- Return Policy. Any order errors and/or damaged Product must be brought to Supplier’s attention within two (2) calendar days of receipt of delivery of the Product to receive a replacement product. Buyer shall be responsible for the shipping costs to return any damaged Product to Supplier, and shall return the damaged and/or incorrect Products in accordance with Supplier’s instructions. In the event there are any order errors and/or damaged Product(s) on orders that are delivered by Supplier directly to end-customer in the Retail Program, Supplier hereby agrees to cover the shipping costs to return any damaged Product to Supplier, and Buyer will receive a replacement product.
- Intellectual Property. Buyer shall keep, display and sell the Products in their original packaging, and shall use the marketing material provided by Supplier. All Product labels, including without limitation, the design, content, wording and trademarks (“Labels”) and all formulas for the Products shall be the sole property of Supplier. Supplier hereby grants to Buyer a non-exclusive, royalty-free, revocable license to use and display Supplier’s trademark and artwork (the “IP”) on the packaging of the Products in accordance with Supplier’s reasonable instructions and only Products sold to Buyer by Supplier. Except for the license granted in this Agreement, nothing herein shall grant Buyer any right, title or interest in the IP, which shall continue to be exclusively owned by Supplier. Buyer’s use of the IP is solely limited to marketing and promotional use of the Products sold. In the event of a new trademark, service mark or trade name (collectively “New Marks”) is created in connection with the Products, such trademark shall be exclusively owned by Supplier, who shall have the right to register such New Marks associated with the Products. At no time shall Buyer challenge or assist others in challenging Supplier’s trademarks or the registration thereof or attempt to register such New Marks.
Buyer, its members, officers, employees, agents, affiliates, and representatives shall be prohibited from reverse-engineering and using any of the Product formulas for its own competitive, commercial use and/or for any use without the express written consent of Supplier.
- Confidentiality. Whole prices, pricelists, trade secrets and formulas of the Products (collectively “Confidential Information”) are confidential and proprietary information of Supplier, and shall not be disclosed, disseminated or used by Buyer, its members, officers, employees, agents, and representatives without the express written consent of Supplier.
- Governing Law. The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Headings. Section headings in this Agreement are to facilitate reference only, do not form a part of this Agreement, and shall not in any way affect the interpretation hereof.
- Assignment. Neither this Agreement nor the rights nor obligations hereunder shall be assigned or delegated, in whole or in part, by Buyer to any third party without Supplier’s prior written consent..
- Insurance. Each party shall at all times maintain adequate insurance for the operations of its respective business under a comprehensive liability insurance policy against claims for bodily and personal injury, death, and property damage caused by or occurring in conjunction with the operation of its business.
- Notices. Except as otherwise provided in this Agreement, all notices required or permitted to be given hereunder shall be in writing and shall be sent by certified mail, postage prepaid, return receipt requested, or by reputable overnight courier against shipment receipt, in each case addressed the addresses above, and by electronic mail to the following email addresses: If to Supplier:; if to Buyer: ___________INFO@ABRAZASKINCARE.COM______________. Either Party hereto may change its address by providing notice of such address change to the other party in the manner set forth above. Notices given as herein provided shall be considered to have been received five (5) days after mailing thereof, if mailed by certified mail, postage prepaid, return receipt requested; or on the next business day if sent by reputable overnight by courier against shipment receipt.
- Severability. Any provision of this Agreement that is prohibited, unenforceable, or declared or found to be illegal, unenforceable, or void in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
- Waiver. The failure of either party to enforce, in any one or more instances, performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or a relinquishment of any right or claim granted or arising hereunder or of the future performance of any such term, covenant, or condition, and such failure shall in no way affect the validity of this Agreement or the rights and obligations of the parties hereto. The Parties acknowledge that a waiver of any term or provision hereof may be given only by a written instrument executed by each Party hereto.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument, notwithstanding that all parties are not signatories to each counterpart.
- Amendments. This Agreement may not be modified, amended, or supplemented except by an agreement in writing signed by all of the parties hereto.
- Third Parties. Except as expressly provided herein, nothing herein, express or implied, is intended, or shall be construed, to confer upon or give to any person, entity, or enterprise, other than the parties hereto and their successors or permitted assigns, any rights, benefits, or remedies of any kind or character whatsoever under or by reason of this Agreement.
- Compliance with Laws. Each party represents and warrants that it will comply with all applicable federal, state, and local laws, ordinances, and regulations in performing under this Agreement
- Entire Agreement. This Agreement, together with all schedules and any other exhibits attached hereto and expressly made a part of this Agreement, constitutes the entire agreement between the Parties hereto, and supersedes all prior proposals, negotiations, understandings, and agreements, whether oral or written.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the day and year first above written.