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Last update: October 5th, 2022
This Policy applies to the commercial relationship (generated by the Reseller Program) between HEALTH VIBES (the “COMPANY”), and the “Reseller”.
WHEREAS:
a) The COMPANY manufactures certain medical supplies products (the “Products”) as defined on its Website; and
b) The COMPANY wishes to appoint the Reseller as Official Representative for the promotion and sale of the Products in the specific territories and
c) The Reseller wishes to be appointed as Official Representative for the promotion and sale of the Products in the Territories on the terms of this Policy, the parties hereto agree as follows:
Subject to all of the terms and conditions of this Policy, The COMPANY hereby appoints The Reseller, and the Reseller hereby accepts appointment, as an authorized, independent Reseller of the Products in the Territories.
The Reseller buys and sells in his own name and for his own account. The Reseller acts as an independent trader as regards both the COMPANY and the customers.
The Reseller shall not pledge the COMPANY’s credit or give any condition or warranty or make any representation on the COMPANY’s behalf or commit the COMPANY to any contracts. Further, the Reseller shall not, without the COMPANY’s prior written consent make any promises or guarantees concerning the Products beyond those contained in this contract or otherwise incur any liability on behalf of the COMPANY.
The COMPANY shall provide Instructions for Use and product labeling for each of the Products. The COMPANY must pre-approve any promotional material that is developed by the Reseller and contains references to the COMPANY before this material enters the local marketplace.
The Reseller must at all times seek prior approval from the COMPANY for all promotional and press release material before that material is cited in the public domain. Such approval shall not unreasonably be withheld.
The COMPANY shall assist in the form of product support information and technical documentation to the Reseller in obtaining any regulatory clearances that are necessary to market and/or sell the Products in the Territories. Such assistance shall be provided free of charge and the Reseller shall obtain such clearances on its behalf and at its own cost.
The Reseller, as Official Representative, shall undertake to lodge Applications for an Establishment License, a Medical Supplies License, or any Application for a Medical Supplies License Amendment with the appropriate authorities. The COMPANY shall furnish the Reseller with all and any technical information necessary to lodge these applications.
The Reseller shall keep the required records and report complaints and investigations for input to the Corrective & Preventive action system. The point of contact to control the activities of COMPANY regarding Corrective & Preventive action shall be the COMPANY’s Quality Manager. Documented procedures for adverse events must meet the Medical Supplies requirements for Problem Reporting.
Distribution records shall be kept by the Reseller for the lifetime of the supplies or two (2) years from shipping whichever the greater. The COMPANY shall have access to these records as required. These distribution records must be adequate to permit a complete and rapid withdrawal of supplies on the market.
The Reseller shall provide the COMPANY with all requested details, including the customer name, address and contact details, the batch or lot numbers, and quantities sold to facilitate traceability to the end user.
The COMPANY shall provide practical training for the Reseller’s field sales personnel.
If applicable, The Reseller shall have the right, upon reasonable notice to the COMPANY and during regular business hours, to inspect and audit the facilities being used by the COMPANY for the production of the Products, to assure compliance by the COMPANY with applicable rules and regulations and with other provisions of this Policy.
If applicable, The COMPANY shall have the right, upon reasonable notice to the Reseller and during regular business hours, to inspect and audit the facilities being used by the Reseller for distribution of the Products, to assure compliance by the Reseller with applicable rules and regulations of the territories and with other provisions of this Policy.
The Reseller shall have the right to appoint its current sub-Resellers, dealers, or other representatives to sell the Products in part or whole of the Territories. Subject to giving notice in writing to the COMPANY, the Reseller has the right to appoint new sub-Resellers, dealers, or other representatives to sell the Products in part or whole of the Territories. The Reseller agrees to purchase the Products exclusively from the COMPANY.
The Reseller shall use its best endeavors to market and promote the sale of the Products within the Territories by advertising, distribution of technical and sales matters, personal calls upon prospective customers, and other activities, all of which shall be undertaken by the Reseller at his sole cost and expense.
The Reseller shall provide a sufficient number of suitably trained sales personnel to ensure proper fulfillment of the Reseller’s obligations under this Policy.
The Reseller shall advertise the Products within the Territories at its own cost, like the services provided by the Reseller for similar products developed or distributed by the Reseller, with similar market potential.
The COMPANY hereby grants to the Reseller the non-exclusive right in the Territories to use the trademarks in the promotion, advertisement, and sale of the Products by the terms of and for the duration of this Policy. The trademarks are registered trademarks, owned and used by the COMPANY. The COMPANY makes no representation or warranty as to the validity or enforceability of the trademark, nor as to whether the same infringes on any intellectual property rights of third parties in the Territories.
The Products shall be sold under the COMPANY’s trademark and on all Products, containers, and advertisements for the Products as may be prescribed by the COMPANY. All representations of such trademark which the Reseller intends to use shall first be submitted to the COMPANY for approval.
After termination of this Policy, the Reseller shall immediately cease all use of COMPANY’s name or any of COMPANY’s trademarks in any manner whatsoever.
The Reseller may not put any trademark of his own on any Products or Product’s documentation material (including without limitation any inserts), without the COMPANY’s permission in writing in advance. Such authorization shall not be unreasonably withheld as long as regulatory requirements are met.
The Reseller shall not, without the prior written consent of the COMPANY, alter or make any addition to the labeling or packaging of the Products displaying the aforementioned COMPANY’s trademarks, and shall not alter, deface or remove in any manner any reference to such trademarks, any reference to the COMPANY or any other name attached or affixed to the Products or their packaging or labeling.
Both COMPANY and the Reseller shall promptly inform each other of any situation, where it has a reason to believe that trademark rights may be infringed or challenged by third parties. The Reseller shall not do or omit to do anything in its use of the COMPANY’s trademarks that may or would adversely affect their validity.
The COMPANY agrees to and at its own expense to take appropriate action (in its sole discretion) to protect its trademark and other intellectual property rights. The Reseller agrees at the request and expense of the COMPANY to provide all reasonable assistance in connection with any action to be taken by the COMPANY.
The Reseller shall with due diligence keep the COMPANY informed of market conditions, and state of competition and shall supply a general report as frequently as may be required, but in no event less than once every quarter.
The COMPANY shall report to the Reseller all relevant product documentation and any changes or improvements in the Products, which the COMPANY intends to make commercially available. The COMPANY shall not implement any such changes or improvements commercially, if not approved by the appropriate regulatory authorities.
During the term of this Policy, the COMPANY shall supply the Reseller with Products as ordered by the Reseller under this Policy for distribution in the Territories.
The Reseller shall provide an initial non-binding written twelve (12) month forecast upon execution of this Policy and every six (6) months thereafter of the Reseller’s expected requirements for Products.
The Reseller shall place a binding order for Products, in the form agreed to by the parties, every quarter by written or electronic purchase order (or by any other means agreed to by the parties) to the COMPANY, which shall be placed at least sixty (60) days prior to the desired date or delivery. In no event shall the Reseller be obligated to purchase Products except using the aforementioned binding purchase order.
The Reseller agrees to purchase each year from the COMPANY a minimum quantity of Products in each Territory agreed by the Parties. The Reseller shall make purchases for the Territories directly from the COMPANY. The Reseller is obliged to provide a report to the COMPANY every calendar Quarter (3 months period) summarizing the number of Products sold within the Territories and any other information relating to the performance of its obligations under this Policy the COMPANY may reasonably require from time to time. Should the Reseller fail, in any Territory, to purchase the minimum quantity as agreed upon then the COMPANY has the right (in its sole discretion), subject to three (3) months’ notice in writing, to terminate this program for that Territory.
The Reseller shall make a pre-payment (the “Pre-payment”) to the COMPANY amounting to minimum quantities of Product in each Territory for the first six (6) months following the execution of the program. The Pre-payment will be made to the COMPANY no later than one month following execution of the Policy.
The COMPANY shall without delay submit to the Reseller an acknowledgment in writing of each order placed by the Reseller.
The COMPANY shall use all best efforts to deliver the Products ordered in Reseller’s purchase orders within sixty (60) days after receipt of any such order or such longer period as may be specified in such order.
The COMPANY shall have the right to reject any purchase order because the Reseller has changed to an unreasonable extent its previously estimated requirements as to the quality or quantity of the Products.
The Products shall be delivered by the COMPANY to the Reseller. For the avoidance of doubt, the Reseller shall be responsible for obtaining any necessary import or export licenses or permissions about and any customs duties, clearance charges, taxes, brokers’ fees, and other amounts which may be payable in connection with the import, export, purchase, and delivery of the Products.
The prices charged by the COMPANY to the Reseller are the ones set forth on the website.
The Reseller shall provide payment to the COMPANY for each respective order of Products in full in advance of the agreed shipping date.
If not otherwise agreed to between the Parties the payment shall be made in US dollars. Payment may be made by international bank transfer to the account nominated by the COMPANY from time to time. The Reseller shall not be entitled because of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to the COMPANY.
COMPANY and Reseller shall meet and review prices on an annual basis. Any changes in prices shall take into account changes in raw material costs, changes in manufacturing costs and costs related to changes in state and municipal laws, rules or regulations. In addition, changes in exchange rates between applicable currencies shall be taken into account.
The Reseller shall maintain product liability insurance with a reputable insurer for the duration of the program in respect of a claim that the Products are faulty or defective (in all Territories) and shall provide a copy of the insurance policy and proof of payment of the current premium to the COMPANY on written request.
The Reseller undertakes to keep adequate, up-to-date and accurate records to enable the immediate recall of any lot of the Products or any of them from retail or wholesale markets. These records shall include records of deliveries to customers (including details of batch numbers, date of delivery, customer name and address, and telephone number and facsimile or telex number, if available). The Reseller shall, at the Supplier's expense, provide such assistance as COMPANY may reasonably require in order to urgently recall any quantity of the Products or any of them from the retail or wholesale market.
The COMPANY and the Reseller shall in no case have any liability to each other for loss of use and other special, indirect, or consequential losses or damages. However, the Reseller shall be liable to the COMPANY for loss of profit.
11.1 Each Party agrees and undertakes that during the term of the program and thereafter it shall keep confidential and shall not use for its own purposes all information of a confidential nature (including, without limitation, information relating to a Party’s business, know-how, processes, product information and trade secrets) which may become known to that Party from the other Party (“Confidential Information”) unless the information is public knowledge or already known to that Party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Policy or subsequently comes lawfully into the possession of that Party from a third party.
11.2 Either Party’s Confidential Information shall be maintained in strictest confidence by the other Party and shall be treated as the other Party would treat its own Confidential Information. It may only be used for the sole purpose of assisting that other Party in adequately discharging its obligations hereunder. Such Confidential Information shall not be disclosed to any third party, unless with prior written approval from the other Party or unless required by local law. This obligation shall survive the termination of this Policy for seven (7) years from the end of the relationship.
Both Reseller and COMPANY shall inform the other party of all acts of unfair competition, breach of confidence, and of all infringements of patent or similar rights or other intellectual property rights of the COMPANY or the Reseller, which come to their notice.
The Reseller shall, at the request of the COMPANY, assist the COMPANY to the best of its ability to protect the COMPANY against such acts and infringements. The COMPANY shall compensate the Reseller for reasonable external expenses incurred in this regard.
This program obligation may not be assigned by either Party without the prior written consent of the other. Subject to the foregoing, this Policy shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
Changes or additions to this Policy shall be valid by their posting date on the COMPANY’s website.
In case one or more provisions of this Policy are invalid, the validity of the remaining provisions of the Policy shall not be affected thereby.
This Policy shall come into effect on the date last posted on the website and shall continue in force for one (1) year after the program’s termination.
Without prejudice to any remedy either Party may have against the other for breach or non-performance of this Policy, both Parties shall have the right to terminate their commercial relationship with immediate effect by giving the other Party written notice: (i) if the other Party commits any material breach of any of the terms of this Policy and (is such breach is remediable) fails to remedy that breach within 30 days of that Party being notified of the; or (ii) an order is made or a resolution is passed for the winding up of the other Party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party, or such an administrator is appointed, or documents are filed with the Court for the appointment of an administrator, or notice of intention to appoint an administrator is given, or a receiver is appointed of any of the other Party's assets or undertaking, or circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order, or the other Party takes or suffers any similar or analogous action in consequence of debt anywhere in the world, or an arrangement or composition is made by the other Party with its creditors or an application to a court for protection from its creditors is made by the other Party.
If the Reseller has not fulfilled any payment within thirty (30) days after having fallen due and if the Reseller still has not made the payment of such amount after two (2) reminders from the COMPANY within at least fourteen (14) days between each reminder concerning this Clause, the COMPANY is entitled to terminate their program immediately on giving written notice.
The COMPANY is entitled to terminate the program by giving three (3) months prior written notice to the Reseller.
The parties are entitled to terminate the program under any of the following change of control events (“Change of Control”) arising at either the COMPANY or the Reseller:
Termination of the program shall not release either Party from any obligation or liability incurred before the effective date of such termination.
The Reseller shall, at his sole cost and expense, promptly return to the COMPANY all advertising materials, Confidential Information, and all other property or equipment of the COMPANY in possession of the Reseller.
In the event of business transactions between the Parties after the serving of notice of, or after the date of, Termination of this Policy, such relations shall not constitute a renewal of the Policy or a waiver of Termination, but all such transactions shall be governed by terms identical to the applicable provisions of this Policy, unless the Parties execute a new Policy superseding this Policy.
The termination of the program shall not of itself give rise to any liability on the part of the COMPANY to pay any compensation to the Reseller, including but not limited to, for loss of profits or goodwill.
This Policy shall replace all other verbal or written Policies between the Parties concerning the Reseller’s right and license to promote and distribute the Products within the Territories.
This document constitutes the entire Policy of the Parties on the subject matter hereof and may not be modified or altered except by a written document duly executed by both Parties.
If either Party is prevented from performing any of its obligations hereunder due to any cause which is beyond the non-performing Party’s reasonable control, including but not limited to fire, explosion, flood, or other acts of God; acts, regulations, or laws of any government; strike, lock-out or labor disturbances; or unavailability or shortage of power, labor or transportation; war, rebellion or civil disorder (collectively, “Force Majeure Event”), such non-performing Party shall not be liable for breach of this Policy concerning such non-performance to the extent any such non-performance is due to a Force Majeure Event.
Such non-performance shall be excused for six (6) months or until the termination of such event (whichever occurs sooner), provided that the non-performing Party gives written notice to the other Party of the Force Majeure Event no later than thirty (30) days after becoming aware that the Force Majeure Event shall prevent timely performance.
A Force Majeure Event affecting either party does not excuse non-payment of amounts due for accepted goods ordered and delivered to the Reseller or for defective or recalled goods returned to the COMPANY.
This Policy shall be governed by, and construed by the law of Mexico. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Mexico for determining any dispute, claim or difference concerning their commercial relationship or any matter arising therefrom.
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