This Distributor Agreement (the “Agreement”), dated as of this day of , 2020 (the “Execution Date”), is entered into by and between FOUNTAIN LIFE MANAGEMENT, LLC, a Delaware limited liability company, having an address of (“Supplier”), and [DISTRIBUTOR], a [STATE] [ENTITY], having an address of (“Distributor”, and together with Supplier, the “Parties”, and each, a “Party”).
WHEREAS, Supplier is in the business of selling the Products (as defined below); and
WHEREAS, pursuant to the terms of this Agreement, Supplier desires to engage Distributor, and Distributor desires to be engaged by Supplier, as an independent contractor of Supplier, for the purposes of soliciting orders for the Products and upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Definitions. Capitalized terms have the meanings set forth or referred to in this Section, or in the Section in which they first appear in this Agreement.
“Customer” means a purchaser that has acquired a Product through the sales efforts of Distributor under this Agreement.
“Intellectual Property Rights” means all: (a) patents; (b) trademarks; (c) internet domain names registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, and other specifications and documentation; (e) all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures; and (f) all other intellectual property and industrial property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, order, or other requirement or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any agency, organization, authority or instrumentality of such government or political subdivision, or any arbitrator, court, or tribunal of competent jurisdiction.
“Net Sales” or “Net Sales Price” means the net sales price (exclusive of sales tax and after applying any discounts, credits, or adjustments) of the Products sold pursuant to a Purchase Contract, as reflected on the invoice applicable to such sale, exclusive of any other amounts (if any) set forth on such invoice. For purposes of clarification, Net Sales Price does not include: (a) any payments that Supplier may receive under the Purchase Contract for services, technical assistance, technical data, or documentation that may be furnished to the Customer by Supplier; and (b) the cost of packing, crating, transportation, and insurance during such transportation if separately charged to Customer.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, or any other entity.
“Personnel” means agents, employees, or subcontractors engaged or appointed by Supplier or Distributor.
“Products” means those products that are identified on Exhibit “A”, as Supplier may amend in its sole discretion from time to time.
“Purchase Contract” means a contract entered into between the Supplier and a Customer for the sale of Products by Supplier to such Customer.
“Representatives” means a Party’s affiliates, employees, officers, directors, partners, managers, shareholders, members, agents, attorneys, third-party advisors, successors, and permitted assigns.
“Term” collectively means the Initial Term (as such term is defined herein) and any Renewal Term (as such term is defined herein).
- Appointment as Distributor.
2.1 Appointment. Supplier hereby appoints Distributor, and Distributor accepts such appointment, to act as an independent distributor of the Products to Customers during the Term, solely in accordance with the terms and conditions of this Agreement.
2.2 Status as Independent Contractor.
(a) Distributor is an independent contractor pursuant to this Agreement.
(b) Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties or an employee/employer relationship. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any Customer or other third party.
(c) The operations of the Distributor are subject to the sole control of Distributor. All Personnel of Distributor are employees or Representatives of the Distributor and not of Supplier. Without limitation of the foregoing, Distributor is solely responsible for, at its own expense:
(i) providing such office space and facilities, and such Distributor Personnel (and their training) as may be necessary to carry out its obligations under this Agreement;
(ii) compensating all Distributor Personnel for any services rendered in connection with the performance of its obligations under this Agreement;
(iii) covering all Personnel of Distributor under any applicable social benefit laws (including workers’ compensation); and
(iv) making any and all payroll deductions and contributions that may be required by Law or otherwise with respect to Distributor Personnel.
(d) Distributor shall be solely responsible for any and all costs or expenses that it may incur in the performance of its obligations hereunder.
- General Distributor Obligations.
3.1 Market the Products. Distributor shall at its own expense:
(a) participate in training during each month of the Term, as such training is provided and required by Supplier to sell the Products;
(b) market, advertise, promote, and solicit the sale of the Products to Customers consistent with good business practice, in each case using its commercially reasonable efforts to maximize Product sales volume;
(c) develop and execute a sales and marketing plan sufficient to fulfill its obligations under this Agreement;
(d) observe all reasonable directions and instructions given to it by Supplier in relation to the marketing, advertisement, and promotion of the Products;
(e) in any and all contact between Distributor and any Customer, identify Distributor’s full legal name, trade name, or both; and
(f) market, advertise, promote and solicit the sale of the Products and conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill, and reputation of Supplier.
3.2 Provide Limited Customer Support. Distributor shall:
(a) have sufficient knowledge of the industry and products competitive with such Product (including specifications, features, and benefits) so as to be able to explain to the Customers the differences between the Product and competing products;
(b) ensure that an adequate number of trained, capable, and qualified technical Distributor Personnel with sufficient knowledge of the Product are available to assist Customers; and
(c) respond to Customers with respect to the general operation and use of the Product, including:
(i) acting as a liaison between Customers and Supplier in matters requiring Supplier’s participation;
(ii) providing general Product information and configuration support on standard protocols and features; and
(iii) collecting relevant technical problem identification information.
3.3 Obtain Government Approval. Distributor shall at its own expense maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to its obligations under this Agreement.
3.4 Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Distributor nor Distributor Personnel shall directly or indirectly:
(a) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments:
(i) actually, apparently, or ostensibly on behalf of Supplier, or
(ii) to any Customer with respect to the Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Supplier to Customer;
(b) engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Products.
- Supplier Obligations.
4.1 During the Term, Supplier shall:
(a) provide any information and support in the normal course of business that Supplier usually makes available to its Distributors regarding the marketing, advertising, promotion, and sale of Products;
(b) allow Distributor to participate in any marketing, advertising, promotion, and sales programs that Supplier may make generally available to its authorized Distributors of Products, provided that Supplier, in Supplier’s sole and absolute discretion, shall have the right to alter or eliminate any such program at any time;
(c) approve or reject, in its reasonable discretion, any promotional information or material submitted by Distributor for Supplier’s approval within 10 days of receipt;
(d) keep accurate records of all sales of Products through Distributor hereunder and submit to Distributor monthly, within 15 business days after the close of the immediately preceding month, a report (“Monthly Report”) indicating its total sales through Distributor hereunder for the immediately preceding month and the amount of payments received by Supplier with respect to such sales for which Distributor is entitled to a Commission under Section 6.2(a). The Monthly Report issued to Distributor will also provide Distributor with its own referral code for the purpose of accurately recording sales of Products through Distributor.
- Customer Orders.
5.1 Solicitation of Customer Purchase Orders. All purchase orders solicited by Distributor from Customers are subject to approval, rejection or modification by Supplier pursuant to Section 5.2. Without limiting the generality of Section 2.2, Distributor shall have no authority to enter into any Purchase Contract on behalf of Supplier or to otherwise bind Supplier to sell or deliver any Products to Customer. Distributor shall promptly notify Supplier with respect to all sales prospects, including forwarding to Supplier all Customer purchase orders, requests for quotation and sales inquiries.
5.2 Supplier’s Discretion to Accept or Reject Customer Purchase Orders. Supplier reserves the right, in its sole discretion, to:
(a) accept, or decline to accept, any purchase order for Products received from any party whether or not solicited by Distributor;
(b) cancel, terminate, or modify any Purchase Contract previously accepted by Supplier; or
(c) negotiate any terms and conditions of the Purchase Contract with Customer, including modifying the purchase price or payment terms.
Distributor acknowledges that Supplier’s exercise of discretion may result in no Commission owed, or a reduction, or delay in the payment of Commission owed, to Distributor under this Agreement.
5.3 Availability of Products. Supplier may, in its sole discretion:
(a) discontinue the sale of the Products;
(b) reduce or allocate its inventory of Products; and
(c) effect changes to any of the Products or parts/accessories thereto (except where continued availability is required by Law).
6.1 Commission Rate. Subject to Section 6.2, Supplier shall pay Distributor a commission for its services for all Purchase Contracts originated through solicitation by Distributor pursuant to the terms of this Agreement, in the amount equal to thirty percent (30%) of the Net Sales Price of such sale under the applicable Purchase Contract for the Products (the “Commission”). Distributor shall also receive a forty percent (40%) discount off the retail price of any Products if Distributor purchases any such Products for its own use, but such purchase by Distributor of the Products for its own use shall not entitle the Distributor to receive Commission on such sales, as set forth above. Notwithstanding the foregoing, the Distributor shall be required to meet a monthly sales objectives for sale of the Products of a Net Sales Price equal to $500.00 per month, which shall include any Products purchased by Distributor for its own use (the “Monthly Sales Objective”), and if such Distributor does not meet such Monthly Sales Objective for three consecutive months of the Term, this Agreement shall terminate automatically, with no further notice to Distributor.
6.2 Commission Payment Terms.
(a) Commissions become payable to Distributor only at such times and only to the extent that Supplier actually receives unconditional payment from Customer under the corresponding Purchase Contract. If Customer makes payments to Supplier in increments or installments, Supplier shall pay Distributor pro rata Commission corresponding to the incremental or installment payments of the Net Sales Price.
(b) Supplier shall pay Distributor the Commission owed within 15 days of it issuing the Monthly Report for the immediately preceding month.
(c) Supplier shall make all Commission payments in US dollars by check.
(d) Upon expiration of the Term, or the earlier termination of the Agreement, Supplier will pay Distributor for any Purchase Contract generated by Distributor prior to the expiration of the Term, or the earlier termination of the Agreement, for which Supplier has not received unconditional payment, upon Supplier’s receipt of unconditional payment in accordance with the corresponding Purchase Contract and in accordance with the terms of subsections (a) through (c) of this Section 6.2 of this Agreement, and
6.3 Disputes. Distributor shall notify Supplier in writing of any dispute regarding any Monthly Report (along with substantiating documentation) within 10 calendar days from the Distributor’s receipt of such Monthly Report. Distributor will be deemed to have accepted all Monthly Reports for which Supplier does not receive timely notification of disputes. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Distributor shall continue performing its obligations under this Agreement during any such dispute.
6.4 Setoff Right. Supplier may withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Distributor, whether relating to Distributor’s breach, bankruptcy or otherwise.
6.5 Bonus Commission. Supplier may provide Distributor, in Supplier’s sole discretion, with additional bonus commission, pursuant to the terms described on Exhibit “B” attached hereto.
- Intellectual Property Rights.
7.1 Ownership. Distributor acknowledges and agrees that:
(a) any and all Supplier’s Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors;
(b) Distributor shall not acquire any ownership interest in any of Supplier’s Intellectual Property Rights pursuant to this Agreement;
(c) any goodwill derived from the use by Distributor of Supplier’s Intellectual Property Rights inures solely to the benefit of Supplier or its licensors, as the case may be;
(d) if Distributor acquires any Intellectual Property Rights in or relating to any Product purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either of the Parties; and
(e) Distributor shall use Supplier’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Supplier.
7.2 Supplier’s Trademark License Grant. Subject to the terms and conditions of this Agreement, Supplier hereby grants to Distributor a non-exclusive, non-transferable, and non-sublicensable license to use Supplier’s Trademarks during the Term solely on or in connection with the marketing, promotion, advertising, and sale of the Products. Distributor will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with regard to the Products when requested by Supplier.
7.3 No Continuing Rights. On expiration or earlier termination of this Agreement, Distributor will immediately cease all display, advertising, promotion, and use of all of Supplier’s Trademarks and will not thereafter use, advertise, promote or display any Trademark or any part thereof that is similar to or confusing with Supplier’s Trademarks or with any Trademark associated with Supplier or any Product.
- Term; Termination.
8.1 Initial Term. The term of this Agreement commences effective as of and terminates on , unless and until terminated as provided under this Agreement (the “ Initial Term”).
8.2 Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive 12 month terms unless and until either Party provides written Notice of nonrenewal at least 30 days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”), or unless and until sooner terminated as provided pursuant to this Agreement. If the Term is renewed for any Renewal Term(s) pursuant to this Section 8.2, the terms and conditions of this Agreement during each such Renewal Term are the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely Notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable.
8.3 Termination. Either Party may terminate this Agreement:
(a) at any time for any or no reason by providing written Notice to the other Party at least 30 days prior to the effective date of termination.
(b) immediately if the other Party breaches any provision of this Agreement, and either the breach cannot be cured or, if the breach can be cured, it is not cured within 30 days after the Party’s receipt of written Notice of such breach.
(c) immediately if the other Party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due.
Any termination under this Section 8.3 will be effective on the other Party’s receipt of the written Notice of termination or such later date (if any) set forth in such Notice.
8.4 Effect of Expiration or Termination.
(a) Upon the expiration or earlier termination of this Agreement, Distributor shall promptly:
(i) cease to represent itself as Supplier’s authorized Distributor with respect to the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Distributor is authorized by Supplier to market, promote or solicit sales of the Products;
(ii) return to Supplier all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Supplier’s Confidential Information;
(iii) permanently erase all of Supplier’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Distributor shall destroy any such copies upon the normal expiration of its backup files; and
(iv) certify in writing to Supplier that it has complied with the requirements of this clause.
9.1 Scope of Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, forecasts, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure:
(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9.1 by the Receiving Party or any of its Representatives;
(b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
(c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;
(d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or
(e) is required to be disclosed pursuant to applicable Law.
9.2 Protection of Confidential Information. The Receiving Party shall:
(a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
(c) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 8.4(a), promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
- Representations and Warranties.
10.1 Distributor’s Representations and Warranties. Distributor represents and warrants to Supplier that:
(a) it is a [ENTITY TYPE] duly organized, validly existing, and in good standing in the jurisdiction of its organization;
(b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement;
(c) it has the full right, corporate power and authority to enter into this Agreement and to perform its obligations under this Agreement;
(d) the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of Distributor; and
(e) when executed and delivered by each of Supplier and Distributor, this Agreement will constitute the legal, valid, and binding obligation of Distributor, enforceable against Distributor in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally or the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
10.2 Supplier’s Representations and Warranties. Supplier represents and warrants to Distributor that:
(a) it is a limited liability company duly organized, validly existing, and in good standing in the jurisdiction of its organization;
(b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement;
(c) it has the full right, corporate power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(d) the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of Supplier; and
(e) when executed and delivered by each of Supplier and Distributor, this Agreement will constitute the legal, valid, and binding obligation of Supplier, enforceable against Supplier in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally or the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
11.1 Indemnification. Subject to the terms and conditions set forth in Section 11.2, each Party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other Party and its officers, directors, managers, shareholders, members, partners, employees, agents, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out of or resulting from any third-party Claim alleging:
(a) material breach or non-fulfillment of any material representation, warranty, or covenant of this Agreement by Indemnifying Party or Indemnifying Party’s Personnel;
(b) any negligent act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or
(c) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its Personnel.
Notwithstanding anything to the contrary in this Agreement, this Section 11 does not apply to any claim for which a sole or exclusive remedy is provided under another section of this Agreement.
11.2 Exceptions and Limitations on General Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, or hold harmless, or defend Indemnified Party against any third-party Claim if such third-party Claim or corresponding Losses arise out of or result from Indemnified Party’s or its Personnel’s:
(a) negligent act or omission (including recklessness or willful misconduct); or
(b) bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
12.1 Non-solicitation – Distributor. During the Term and for a period of 24 months thereafter, Distributor shall not, and shall not permit its Representatives to, directly or indirectly, in any manner make any solicitation to employ the Supplier’s personnel without written consent of Supplier to be given or withheld in Supplier’s sole discretion. For the purposes of this paragraph, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto is not a breach of this paragraph.
12.2 Non-solicitation – Supplier. During the Term and for a period of 24 months thereafter, Supplier shall not, and shall not permit its Representatives to, directly or indirectly, in any manner make any solicitation to employ the Distributor’s personnel without written consent of Distributor to be given or withheld in Distributor’s sole discretion. For the purposes of this paragraph, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto is not a breach of this paragraph.
13.1 Insurance Obligations. Each Party shall, at its own expense, maintain and carry in full force and effect, all types and amounts of insurance required by applicable Law and all such insurance as is necessary to protect the Indemnified Party from and against any Third Party claims, including commercial general liability (including product liability) in a sum no less than $1,000,000.00 per occurrence, $1,000,000.00 personal and advertising injury and $2,000,000.00 aggregate with financially sound and reputable insurers. Each Party shall provide the other Party with a certificate of insurance from the insured Party’s insurer evidencing the insurance coverage specified in this Agreement. Each Party shall cause the certificate of insurance to name the other Party as an additional insured. Each Party shall provide the other Party with 30 days’ advance written Notice in the event of a cancellation or material change in its insurance policy. Except where prohibited by Law, each Party shall require its insurer to waive all rights of subrogation against the other Party and its insurers.
14.1 Further Assurances. Upon Supplier’s reasonable request, Distributor shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
14.2 Entire Agreement. This Agreement, including and together with all exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
14.3 Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at its address set forth in the preamble above (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
14.4 Interpretation. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
14.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.6 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.7 Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by each Party.
(a) No waiver under this Agreement is effective unless it is in writing, and signed by the Party waiving its right.
(b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
(ii) any act, omission or course of dealing between the Parties.
14.9 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
14.10 Equitable Remedies. Distributor acknowledges and agrees that (a) a breach or threatened breach by Distributor of any of its obligations under Section 9 would give rise to irreparable harm to Supplier for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Distributor of any such obligations, Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at law, in equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
14.11 Assignment. Distributor may not assign any of its rights or delegate any of its obligations pursuant to this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Supplier may assign any of its rights or delegate any of its obligations to any affiliate or to any Person acquiring all or substantially all of Supplier’s assets.
14.12 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
14.13 Non-Disparagement. The Parties agree that during the Term of this Agreement, and after termination of this Agreement, to refrain from all conduct, verbal or otherwise, that disparages or damages or could reasonably be expected to disparage or damage the reputation, goodwill or standing in the community of the Parties, as applicable.
14.14 Choice of Law; Venue. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the Commonwealth of Pennsylvania, without regard to the conflict of laws provisions thereof. Any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement shall be heard solely in the state or federal courts of Allegheny County, Pennsylvania.
14.15 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Execution Date.
FOUNTAIN LIFE MANAGEMENT, LLC