WHOLESALE SUPPLY AGREEMENT
This Wholesale Supply Agreement (this “Agreement”) is entered into by and between Auria Aftermarket, LLC (“Supplier”) and the business or entity (“Customer”) that is submitting orders for goods from Supplier’s website (“Goods”). Customer and Supplier are each a “Party,” and collectively, the “Parties.” By checking the box or otherwise manifesting assent to the terms and conditions described herein, Customer agrees to be bound to this Agreement, which shall be effective as of the date of such manifestation of assent (“Effective Date”).
1. PLACEMENT OF ORDERS. Customer will submit order(s) for Goods via Supplier’s website ordering process at the following URL: https://goarmorlite.com/ (a “Purchase Order”).
2. ACCEPTANCE OF ORDERS. In the event that any Customer quotation or proposal is held to be an offer, that offer is expressly rejected. Acceptance of a Purchase Order is expressly limited to the terms of this Agreement and the Purchase Order. No purported acceptance of any Purchase Order on terms and conditions which modify, supersede, supplement, or otherwise alter this Agreement will be binding on Supplier, and such terms and conditions shall be deemed rejected and replaced by this Agreement unless accepted by Supplier in a physically signed writing and otherwise compliant with the terms of this Agreement.
3. PRODUCTION AND DELIVERY. Following receipt of payment in full of the Purchase Price, Supplier will tender the Goods in accordance with Supplier’s ordinary fulfillment process. In the event of any inability by Supplier to timely fill all or any portion of a Purchase Order after receipt of the Purchase Price, Supplier will notify Customer as soon as practicable, such notice to specify the reasons for the delay, what portion of the Goods covered by the Purchase Order that Supplier can deliver, and when the remaining portion of such Goods will be delivered. In that event, Supplier will have the opportunity to cure such breach within a commercially reasonable time period.
4. PRODUCT STANDARDS. Supplier will provide Customer with any applicable certificates, material specifications, or other non-confidential data reasonably requested by Customer when the Goods are shipped from Supplier to Customer for each Purchase Order.
5. TITLE/RISK OF LOSS. Delivery of Goods purchased by Customer shall be FCA at Supplier’s shipping point. Risk of loss and title shall transfer to Customer upon tender of the Goods by Supplier to the shipment carrier. Any claims for loss or damage after risk of loss has passed as herein provided shall be filed with the carrier.
6. DELIVERY. Supplier will arrange for delivery of the Goods to the address confirmed by Customer.
7. PAYMENT OF TAXES. Customer agrees to pay all taxes of every description, federal, state, and municipal, that arise as a result of the sale of Goods pursuant to a Purchase Order, excluding taxes on Supplier’s income. Supplier will honor Customer’s sales tax exemption in any State or jurisdiction where Customer has such an exemption so long as: 1) Customer provides all documents and information required by Supplier to prove Customer’s exempt status, and 2) Customer follows any point of sale instructions required by Supplier in connection with a sales tax exemption, including inputting Customer’s tax ID number or other information if required.
8. PROMOTION, SALE, AND INSTALLATION OF GOODS.
(i) Supplier hereby grants to Customer the non-exclusive rights to, and Customer hereby accepts such appointment to, promote, re-sell, install, and service the Goods on end-user vehicles. Notwithstanding the foregoing, Customer may not modify, reconfigure, or re-engineer the Goods in any manner whatsoever.
(ii) The price of the Goods will be set forth in a price sheet (the “Price Sheet”). The Price Sheet may be available on Suppliers’ website or sales portal, or may be otherwise distributed to Customer (and may be individualized for Customer). In any event, the price that Customer pays upon completion of checkout on Suppliers’ website will be the final price for the Goods.
(iii) Customer may not advertise or list the Goods for sale at a price below the minimum advertised pricing (the “MAP Pricing”). A MAP Pricing list is available on Suppliers’ website or sales portal, or may be otherwise distributed to Customer, and may be updated from time to time at Supplier’s discretion. Customer is responsible for periodically reviewing Supplier’s website and sales portal for updates to the MAP Pricing list, or otherwise reviewing any updates distributed to Customer, and for complying with any such updates.
The MAP Pricing applies only to advertised prices and does not apply to the price at which Goods are actually sold, nor does it prohibit advertised prices that are higher than the MAP Pricing.
The MAP Pricing applies to all advertisements of Goods in all media including, without limitation, online catalogs, mail order catalogs, television, radio, public signage, flyers, posters, coupons, mailers, inserts, newspapers, magazines, and all internet or similar electronic media, including websites, e-mail newsletters, forums, social media sites, apps, and auction sites. Website features such as raffles/waffles, games of chance, “click for price,” automated “bounce-back” pricing e-mails, automatic price display for any items prior to being placed into a customer’s shopping cart, and special “in-cart” pricing are considered communications initiated by Customer and constitute advertising by Customer.
(iv) Customer shall comply with and strictly adhere to any installation, service, and removal instructions, guidelines, or requirements provided by Supplier, including those set forth on Supplier’s website. Supplier may, in its discretion, provide reasonable training, troubleshooting, or support, upon Customer’s request.
(v) All Goods re-sold by Customer to end-users will include Supplier’s limited lifetime warranty, as described at https://goarmorlite.com/pages/warranty, as may be updated from time to time. Supplier will be solely responsible for responding to any warranty claims related to the Goods (including the fulfillment of any eligible warranty claims). Supplier will bear the cost of eligible warranty claims related to the Goods, except to the extent a warranty claim results from Customer’s improper installation, service, or removal of the Goods from the end-user’s vehicle; in such cases, Supplier may, in its sole discretion, fulfill or reject the warranty claim and send an invoice to Customer in the amount of the warranty fulfillment cost attributable to Customer’s improper service, installation, or removal of the Goods.
(vi) In the event an end-user purchaser of the Goods makes any Goods-related inquiry, complaint, or warranty claim directly to Customer, Customer shall direct the end-user to Supplier’s support page at https://goarmorlite.com/pages/contact.
(vii) Neither Party shall make, or cause to be made, any press release or public announcement with respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of a duly authorized representative of the other Party unless otherwise required by law, and the Parties shall cooperate as to the timing and contents of any such press release, public announcement or communication.
9. MARKETING COLLATERAL.
a. If Supplier provides any point-of-sale or in-store displays or merchandising, Customer agrees to display or distribute such items in good faith in a manner reasonably calculated to enhance the likelihood of end-user purchases of the Goods. Supplier is not obligated to provide any such materials or items.
b. During the term of this Agreement, Customer shall have the non-exclusive, revocable, non-transferable, non-sublicenseable right to use Supplier’s approved Trademarks in connection with the promotion and re-sale of Goods; provided, however, that Customer must obtain Supplier’s prior written consent to use Supplier’s Trademarks in catalogs, social media, promotional materials, websites, or other advertising or online materials. As used herein, “Trademarks” shall mean any trademarks, copyrights, logos, product descriptions, product images, or warranty descriptions. Customer hereby acknowledges that Supplier (or licensors of Supplier) is the sole owner of the Supplier Trademarks and the goodwill pertaining thereto and that nothing contained herein shall constitute an assignment of the Supplier Trademarks. Customer agrees that it will not contest Supplier’s (or Supplier’s licensors’) ownership of the Supplier Trademarks and shall not, pursuant to this Agreement or otherwise:
(i) acquire any right, title, or interest in or to Supplier’s Trademarks;
(ii) use Supplier’s Trademarks in a manner that could, in the reasonable opinion of Supplier, dilute Supplier’s rights in the Trademarks, that could otherwise prejudice or invalidate a registration or application for registration of any of the Trademarks;
(iii) take any action that will, in any way, diminish, alter or adversely affect Supplier’s rights in Supplier’s Trademarks or the reputation of Supplier, or otherwise damage the goodwill attached to the Supplier Trademarks; or
(iv) apply to register or register any of the Supplier Trademarks or any trade name, trademark, service mark, domain name or logo that is confusingly similar to any of the Supplier Trademarks, without Supplier’s prior written consent.
10. WARRANTIES. CUSTOMER ACKNOWLEDGES THAT THE GOODS PROVIDED HEREUNDER ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED. SUPPLIER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, CONDITION, UNINTERRUPTED USE, OR COMPLIANCE WITH UNITED STATES FEDERAL OR ANY APPLICABLE STATE, LOCAL, INTERNATIONAL OR TERRITORIAL LAW.
11. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, NOR SHALL SUPPLIER BE LIABLE FOR LOSS OF GOODWILL, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY CUSTOMER, CUSTOMER’S END-PURCHASERS, OR ANY OTHER THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUPPLIER OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF SUPPLIER, OR ITS AFFILIATES, FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SUPPLIER UNDER THIS AGREEMENT FOR THE GOODS RELATED TO CUSTOMER’S CLAIM.
12. INSPECTION. Customer, upon receiving possession of the Goods, shall have five (5) business days to inspect the Goods to determine if the Goods conform to the requirements of this Agreement. If Customer, in good faith, determines that all or a portion of the Goods are non-conforming, Customer may dispute the shipment and begin the process of investigation of the Goods. Customer must provide written notice to Supplier of the reason for rejecting the Goods. Supplier will have a commercially reasonable period of time from the date of written notice from Customer to investigate possible issues and negotiate the possible return of the Goods or to remedy such defects under the terms of this Agreement.
13. DEFAULT. Without limiting other grounds for default under this Agreement, the occurrence of any of the following shall constitute a material default under this Agreement, and in such case the non-defaulting Party may terminate the Agreement and any unfulfilled Purchase Orders immediately:
a. The failure to make a required payment when due;
b. The insolvency or bankruptcy of either party;
c. The subjection of any of either Party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency; or
14. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (“Force Majeure”), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, pandemics (including COVID-19), epidemics, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The term Force Majeure shall not include any failure or alleged inability to make a required payment under this Agreement. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
15. CONFIDENTIALITY. Customer shall (a) keep the existence of this Agreement as well as all Supplier Information confidential and disclose it only to those employees of Supplier who need to know such Supplier Information in order for Supplier to perform the Services under this Agreement and (b) use Supplier Information solely for the purpose of performing the Services under this Agreement. “Supplier Information” means all information provided to Supplier by Supplier or its representatives in connection with this Agreement, including without limitation, pricing and other terms of this Agreement, technical “know-how,” specifications, formulas, compositions, designs, sketches, photographs, samples, prototypes, test vehicles, manufacturing, packaging or shipping methods and processes, computer software and programs (including object code and source code), protocols, strategic business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and other compilations of data. Supplier Information also includes any materials or information that contains, or is based on, any Supplier Information, whether prepared by Supplier, Supplier or any other person. Upon termination of this Agreement, Supplier shall return to Supplier any Supplier Information in Supplier’s possession or under its control and shall not use Supplier Information for its own, or any third party’s, benefit. Supplier’s confidentiality obligations shall survive termination of this Agreement, for so long as the Supplier Information remains confidential. Supplier agrees that, in addition to any other remedies that Supplier may possess, Supplier shall be entitled to seek injunctive or other equitable relief in the form of a preliminary and permanent injunction or other appropriate equitable remedies without having to prove damages or post a bond or other security, in the event of an actual or threatened breach of these confidentiality obligations by Supplier.
The foregoing confidentiality obligations do not apply to any information that: (a) is already lawfully in Customer’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of Customer; (c) is required to be disclosed by Customer as a matter of law (provided that Customer will use all reasonable efforts to provide Supplier with prior notice of such disclosure and to obtain a protective order therefor); or (d) is disclosed by Supplier with Customer’s approval.
16. INDEMNITY. Customer shall indemnify, defend, and hold harmless Supplier’s and its affiliates’ officers, directors, agents, employees, and representatives from, against, and in respect of any and all claims, liabilities, damages and expenses (including actual attorneys’ fees) arising under or related to (i) the negligence or willful misconduct of Customer, its affiliates and their respective employees, and agents, (ii) violation of any law or regulation, (iii) any breach of violation of this Agreement, or (iv) the improper installation, servicing, or removal of the Goods not in compliance with Supplier’s instructions and guidelines.
17. ASSIGNMENT. Neither Party may assign or transfer this Agreement without prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that either Party is permitted to assign this Agreement in connection with the sale or transfer of all or substantially all of its business and assets. Nothing in this Agreement, express or implied, is intended to or shall be construed to confer upon or give any person other than the Parties and their respective successors and permitted assigns, any legal or equitable right, remedy or claim under or with respect to this Agreement.
18. ENTIRE AGREEMENT. This Agreement, including any Purchase Orders governed by this Agreement, contains the entire agreement of the Parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the Parties. This Agreement may be modified or amended only if the amendment is made in writing and signed by both Parties.
19. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
20. WAIVER OF CONTRACTUAL RIGHT. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
21. APPLICABLE LAW, VENUE, ARBITRATION. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to conflicts-of-law principles that would require the application of any other law. Subject to the arbitration provisions below, the Parties consent to the exclusive jurisdiction of the appropriate federal court in the U.S. District Court for the Eastern District of Michigan, Southern Division or of the state courts in Oakland County, Michigan for any legal or equitable action or proceeding arising out of, or in connection with, this Agreement. The Parties specifically waive any and all objections to venue in such courts. All disputes arising under or in connection with this Agreement or any other document pertaining to this Agreement shall be finally settled by arbitration in Southfield, Michigan, before a single arbitrator appointed by the American Arbitration Association (“AAA”) which arbitration shall be conducted under AAA’s commercial arbitration rules then in effect at the time of this Agreement provided, however, that discovery shall be permitted in accordance with the United States Federal Rules of Civil Procedure. The decision of the arbitrator shall be final and binding upon the Parties, shall not be appealable, and judgment on the award rendered may be entered in any court of competent jurisdiction. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. Each Party will bear equally the costs and expenses of AAA and of the arbitrator. Each Party will bear its own costs and expenses. The failure by one Party to pay its share of arbitration fees constitutes a waiver of such Party’s claim or defense in the arbitration. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. Notwithstanding anything to the contrary herein, a Party shall have the right, without waiving any remedy under this Agreement, to seek from any court of competent jurisdiction (a) equitable relief and (b) any interim or provisional relief that is necessary to protect the rights or property of such Party.
22. AGREEMENT AUTHORIZED. Each Party represents to the other that this Agreement has been duly executed by it, or its duly authorized officers or agents, and constitutes a valid, binding, and enforceable obligation of such party.
23. EFFECTIVE DATE/TERMINATION. This Agreement shall be effective as of the Effective Date. This Agreement may be terminated at any time by either Party with thirty (30) days’ prior written notice by the terminating Party. Supplier and Customer agree that notwithstanding the termination of the Agreement, (i) any and all Purchase Order(s) that have been submitted by Customer and accepted by Supplier prior to termination shall be binding on the Parties and shall continue to be governed by this Agreement until completion of the Purchase Order; and (ii) certain provisions which by their nature shall survive the termination or expiration of this Agreement, shall survive.