The parties desire to and hereby do enter into a distributor/supplier relationship, the governing terms and mutual promises of which are set out in this Agreement.
1. NON-EXCLUSIVE RIGHTS
1.1 Contractor Starfire Direct grants to Contractor for resale, and Contractor accepts, the non-exclusive right to buy and distribute our “Products.”
1.2 Product Starfire Direct agrees to make available and to sell to Contractor such quantities of Products as Contractor shall order from Starfire Direct at the prices and subject to the terms set forth in this Agreement.
2.TERM AND TERMINATION
2.1 Term The initial term of this Agreement is two (2) years. Thereafter the Agreement will automatically renew for successive two (2) year terms, unless it is terminated earlier.
Either party may terminate this Agreement, with or without cause, by giving ten (10) days notice to the other party.
3. CONTRACTOR OBLIGATIONS
3.1 Qualification Contractor shall own and operate a legally registered business in United States and possess commercial premises to conduct Contractor related activities.
3.2 Advertising Contractor may advertise and/or promote Products in a commercially reasonable manner and will transmit as reasonably necessary product information and promotional materials to its customers. Contractor will not pursue advertising or promotional activities that portray Starfire Direct products in a way that is inconsistent with or contrary to the advertising and promotional standards of
3.3 Product Orders Contractor can place orders with Starfire Direct in its own name and account. Orders may be placed directly online, emailed, or called in to a sales support specialist.
(a) Contractor is an independent contractor engaged in purchasing Starfire Direct products for resale to its customers. Contractor is not an agent or legal representative of Starfire Direct for any purpose, and has no authority to act for, bind or commit Starfire Direct in any way.
(b) Contractor has no authority to make any commitment on behalf of Starfire Direct with respect to quantities, delivery, modifications, interfacing capability, suitability of software or suitability in specific applications. Contractor has no authority to modify the warranty offered with Starfire Direct products. Contractor will indemnify Starfire Direct from liability for any modified warranty or other commitment by Contractor not specifically authorized by Starfire Direct.
4. STARFIRE DIRECT’S OBLIGATIONS
4.1 Delivery and Pickup Starfire Direct shall ship Products direct to Contractor or specified address and Contractor will pay for the shipping method chosen at the point of sale. Contractor may utilize Starfire Directs shipping rates or provide account information for direct billing of all shipping costs.
(i) Starfire Direct provides to Contractor a 5-day warranty upon receipt of shipment. Contractor should open and inspect all shipment within this time frame.
(ii) Any claim for warranty shall be void unless it complies fully with the claim procedure specified by Starfire Direct.
(iii) Shipping cost for warranted parts are not covered.
(iv) Contractor who picks up Purchase Order at Starfire Directs warehouse agrees to return all parts that are replaced under warranty to where Purchase Order is picked up.
(v) Contractor who receives Purchase Order in shipments agrees to return parts that are replaced under warranty upon Starfire Directs request. Responsibility for such shipping cost shall be negotiated between Starfire Direct and Contractor depending on the case.
(vi) Starfire Direct reserves the right of making final decisions on unusual warranty issues.
(b) Visible Damage Any claim arising from visible damage to Products shipped shall be filed by Contractor within 5 business days upon its receipt of the Products, together with pictures evidencing the damage claimed.
(c) No Warranty Starfire Directs express warranty shall not apply to any Product damaged because of any accident, negligence, use in any application for which the Product is not designed or intended under the terms of this Agreement, modifications after the fact including combination with products or accessories not specifically authorized by Starfire Direct, or by any other causes unrelated to defective workmanship, materials or manufacture.
(d) Disclaimer of Warranties Except as expressly warranted in this agreement, vendor hereby disclaims all warranties, conditions and representations express, statutory and implied, applicable to the products, including, but not limited to, any warranty of merchantability or fitness for a purpose and any warranty that any product is delivered free of claims of third parties by way of infringement or the like.
5. CONTRACTOR PRICING AND PAYMENT
5.1 Pricing Contractor shall purchase the Products from Starfire Direct at list price, with any applicable discounts authorized for your account. Starfire will provide Contractor with updates to its price list as new products are added or any price changes occur. Starfire Directs prices do not include any foreign (VAT) federal, state or local taxes that may be applicable to its products.
5.2 Online Ordering Starfire will provide you with an on-line login for our websites as to help facilitate the ordering of our products. All discounts will be for the express use of the Contractor and cannot be shared with any other individual or entity.
5.3 Returns Contractor shall inspect all Products promptly upon receipt thereof and may reject any Product that fails in any material way to meet the Contractor’s applicable specifications within 5 days from receipt.
6. MARKETING SUPPORT
6.1 Sales Brochures Starfire Direct will provide Contractor with digital marketing of our commercial sales brochures upon request.
6.2 Find a Pro Starfire Direct will provide Contractor with an online listing if applicable for our “Find a Pro” page which specializes in information for contractors, installers and designers.
6.3 Trademarks The Products may bear certain trade names, trademarks, trade devices, logos, codes or other symbols of Starfire Design or Starfire Direct (the “Trademarks”). Starfire Direct hereby grants to Contractor the non-exclusive, royalty-free right to use the Trademarks for carrying out the activities described in this Agreement, provided that Contractor will not be entitled to conduct business under any of the Trademarks or derivatives or variations thereof. All use will ensure to the benefit of the Starfire Direct and will not vest in Contractor any rights in or to the Trademarks.
7.1 General Indemnity Each party shall indemnify, defend and hold the other harmless from and against all claims, actions, damages, demands, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, resulting from any act or omission of the acting party or its employees under this Agreement, that causes or results in property damage, personal injury or death. Starfire Direct is supplying products with the understanding that you, as the Contractor, have the appropriate licenses, training, experience and insurance to perform sales and/or installation safely and legally. Starfire Direct accepts no responsibility in the event any property damage or injury occurs to users or installers of our products.
7.2 Limitation of Liability Neither party shall be liable to the other for lost profits of business, indirect, consequential or punitive damages, whether based in contract or tort (including negligence, strict liability or otherwise), and whether advised of the possibility of such damages. Starfire Directs liability with respect to any Products shall in no event exceed the amount paid by Contractor to Starfire Direct less taxes and charges for shipping and insurance.
8. GENERAL PROVISIONS
8.1 Notices Any notice which either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) by mailing the same by registered or certified mail, return receipt requested, to the party to whom the party is directed at the address of such party as set forth at the beginning of this Agreement, or such other address as the parties may hereinafter designate, and (iii) by facsimile or telex communication subsequently to be confirmed in writing pursuant to item (ii) herein.
8.2 Governing Law This Agreement shall be construed and enforced in accordance with the laws of the State of California.
8.3 Cooperation Each party agrees to execute and deliver such further documents and to cooperate as may be necessary to implement and give effect to the provisions contained herein.
8.4 Force Majeure Neither party shall be liable to the other for any delay or failure to perform which results from causes outside its reasonable control.
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.
8.6 Incorporation of all Exhibits Each and every exhibit referred to hereinabove and attached hereto is hereby incorporated herein by reference as if set forth herein in full.
8.7 Severability A judicial determination that any provision of this Agreement is invalid in whole or in part shall not affect the enforceability of those provisions found to be valid.
8.8 Entirety This Agreement constitutes the entire agreement between the parties regarding its subject matter.
8.9 Confidentiality Each party acknowledges that during its obligations pursuant to this Agreement, it may obtain certain information specifically marked as confidential or proprietary (“Confidential Information”). Each party hereby agrees that all such Confidential Information communicated to it by the other party, its parents, affiliates, subsidiaries, or Customers, whether before or after the date of this Agreement, shall be and was received in strict confidence, shall be used only for the purposes of this Agreement, and shall not be disclosed without the prior written consent of the other party, except Confidential Information which (i) is already known to the recipient of such Confidential Information (“Recipient”) at the time of its disclosure; (ii) is or becomes publicly known through no wrongful act of the Recipient; (iii) is received from a third party without similar restrictions and without breach of this Agreement; (iv) is independently developed by the Recipient ; or (v) is lawfully required to be disclosed to any government agency or is otherwise required to be disclosed by law.