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11818 Clark St.
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11818 Clark St.
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Account Name: IKRUSHER INC.
Beneficiary Account Number: 2387441385
Bank Routing Number (Domestic Wires): 121000248
Bank Routing Number (Direct Deposits and ACH transactions): 121042882
Bank Swift code (International Wires): WFBIUS6S
Receiving Bank Name: Wells Fargo Bank, N.A.
Bank Address: 1200 S. Baldwin Ave, Arcadia, CA 91007
Sellers permit submission
NON-EXCLUSIVE DISTRIBUTION AGREEMENT
This Non-Exclusive Distribution Agreement (the “Agreement”) is made as of (the “Effective Date”), entered into by and betweenhaving its principal place of business at (the “Distributor”), and iKrusher, Inc. (“iKrusher” or the “Supplier”), a California corporation with offices located at 11818 Clark St., Suite #A, Arcadia, CA 91006. Supplier and Distributor are referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WITNESSETH:WHEREAS, Supplier is in the business of manufacturing and selling vapes, vaporizers, vape pens, disposables, vape pods, vape batteries, 510 cartridges, terpenes, electronic cigarettes (e-cigarettes or e-cigs), or other types of electronic nicotine delivery system;
WHEREAS, Distributor wishes to purchase certain Products (as defined in Section 1.2 below) from Supplier;
WHEREAS, Supplier desires to sell the Products to Distributor and appoint Distributor as a non-exclusive distributor under the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the covenants, terms, and conditions, as set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
1. AGREEMENT TO PURCHASE PRODUCTS
- Purchase and Sale of Products. Subject to the terms and conditions of this Agreement, during the Term (as defined in Section 6 below), Distributor shall Purchase Products from Supplier, and Supplier shall sell Products to Distributor, through the use of Purchase Orders (as defined in section 3.1 below).
- Products. The products Supplier shall make available for purchase are indicated on the product list set forth on Schedule 1 attached hereto (“Products”) which will be updated from time to time with the product list changes. Any new or additional products that are sold under this Agreement to the Distributor shall be incorporated into this definition of Distributor agrees to refrain from seeking counterfeits of Supplier’s Products from any other person or entity. If Supplier determines that Distributor has sought or is in any way using, selling, or distributing counterfeits of Supplier’s Products, Distributor shall be in material breach of this Agreement.
- Product Specifications. iKrusher shall supply all Products according to the Specifications listed on an Invoice (as defined in section 3.3 below) or as
otherwise agreed to in writing by the Parties. “Specifications” means, with respect to any Product, the design, branding, composition, dimensions, other physical characteristics, chemical characteristics, labeling, packaging, unit count, and trade dress of such a Product. Distributor agrees to sell, distribute, promote, and advertise
all Products according to the specifications set forth in the corresponding Invoice.
2. NON-EXCLUSIVE DISTRIBUTOR APPOINTMENT AND RESTRICTIONS
- Non-Exclusive Appointment. Supplier hereby appoints Distributor, and Distributor accepts the appointment, to act as a non-exclusive distributor of Products to customers during the Term solely in accordance with the terms and conditions of this Agreement. Supplier may in its sole discretion sell the Products to any other person, including distributors, retailers, and customers. By accepting this appointment, the Distributor agrees to conform to all quality standards established from time to time by the Supplier for its distributors. These quality standards are subject to change by Supplier on twelve (12) business days’ prior Notice (as defined below in Section 16.5) to
- Rights in Non-Exclusive Territories. Distributor is entitled to advertise, promote, market, distribute, and sell, or offer to distribute and sell the Products into non- exclusive
- Current Exclusivity Agreements. Distributor agrees to not advertise, promote, market, distribute and sell, or offer to distribute and sell any of the Products, including without limitation product SKU’s, in regions in which Supplier has an exclusive distribution agreement in place, including but not limited to any Products in the states of New York, Connecticut, New Jersey, Rhode Island, Virginia, and Florida. Updated copies of exclusive product list(s) for regions in which Supplier has exclusive distribution agreements in place will be provided to the Distributor by Supplier from time to time. Distributor agrees to not market, promote, sell, or distribute any product in any region associated with the exclusive product list(s).
- Future Exclusivity Agreements. Supplier retains the right to enter exclusive distribution agreements with regard to any regions that are non-exclusive. If Supplier enters into such an agreement, Supplier may provide written notice to Distributor instructing Distributor to not market, promote, sell, or distribute Products in the new exclusive region(s), and if so, Distributor agrees not to market, promote, sell, or distribute Products in said regions. If Distributor knows or reasonably should know that Supplier has entered an exclusive distribution
agreement for a region in which Distributor is selling, distributing, marketing or promoting the Products, Distributor shall immediately cease marketing, promoting, selling, or distributing Products in that region. If Distributor is determined by Supplier or any third party to be marketing, promoting, selling or distributing Products in said regions, Distributor shall have thirty (30) calendar days from the date of written notice, to cease such activity. If Distributor fails to do so, Distributor shall indemnify, defend, and hold harmless Supplier and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, the “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 attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Supplier, awarded against the Indemnified Party, arising out of or relating to any claim of a third party created by Distributor’s conduct.
- Right to Manufacture and Sell Competitive Products. This Agreement does not limit Supplier’s right to manufacture or sell, or preclude Supplier from manufacturing or selling, to any person or entity or affiliate thereof, or entering into any agreement with any other person or entity or affiliate thereof related to the manufacture or sale of, the Products and other goods or products that are similar to or competitive with the products.
- Non-Circumvention. Distributor shall not, directly or indirectly, except in collaboration with or with the prior express written consent of Supplier:
- enter into any transaction with any person or entity or affiliate thereof introduced to Distributor by Supplier or its representatives (the “Introduced Party”), similar to, in competition with, or which otherwise would have the effect of preventing Supplier from receiving the full benefit of, the transactions contemplated by this Agreement;
- solicit the Introduced Party to enter into any such transaction; or
- induce, solicit, procure, or otherwise encourage its representatives or any third party, or respond to any solicitation from any of the same, to enter into any such
3. ORDERING PROCEDURE
- Purchase Orders. Distributor shall issue a request for Products (“Purchase Order”) to Supplier in written or electronic form via facsimile, e-mail or US mail, and cause all Purchase Orders to contain (a) a list of Products to be purchased; (b) quantities ordered; (c) requested delivery date; and (d) delivery point (collectively, the “Purchase Order Transaction Terms”). By placing a Purchase Order, Distributor makes an offer to purchase Products under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Except regarding the Purchase Order Transaction Terms, any variations made to the terms and conditions of this Agreement by Distributor in any Purchase Order is void and has no effect.
- Supplier’s Right to Accept or Reject Purchase Order. Supplier has the right, in its sole discretion, to accept or reject any Purchase Supplier may accept any Purchase Order by confirming the order in a written invoice as described in Section 3.3) or by delivering such Products, whichever occurs first. No Purchase Order is binding on Supplier unless accepted by Supplier as provided in this Agreement.
- Invoice. The Distributor shall furnish to the Supplier a Purchase If Supplier accepts the Purchase Order, Supplier shall create and furnish an invoice based on the Purchase Order (the “Invoice”). Supplier shall deliver the Products in accordance with the terms of the Purchase Order, the Invoice, and this Agreement. The Distributor shall acknowledge in writing the receipt of such Invoice. Distributor will be deemed to have approved the Invoice unless Distributor rejects the Invoice within five (5) business days from receipt of the Invoice. Each such Invoice shall designate the quantity, specifications, total price, price per unit of Products and delivery terms of the Products ordered. Distributor will be deemed to have accepted all Invoices for which Supplier does not receive timely Notice of disputes, and shall pay all amounts due under these invoices within the period set out in this Agreement. The Parties shall seek to resolve all disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Distributor shall continue performing its obligations under this Agreement during any dispute, including, without limitation, Distributor’s obligation to pay all due invoice amounts in accordance with the terms and conditions of this Agreement.
- Invoice Disputes. Distributor shall notify Supplier in writing of any dispute with any Invoice (along with a reasonably detailed dispute description) within five (5) business days from the Distributor’s receipt of the Invoice. A failure by Distributor to timely notify Supplier of any dispute with the Invoice shall be considered a waiver of Distributor’s right to dispute said Invoice and a waiver of Distributor’s remedies including but not limited to those under 4.8, 4.9 and 4.10.
- Cancellation of Purchase Orders. Supplier may, in its sole discretion, without liability or penalty, cancel any Purchase Order placed by Distributor and accepted by Supplier, in whole or in part, if: (a) Supplier determines that Distributor is in violation of its payment obligations or is in material breach of this Agreement; (b) Supplier discontinues its sale of Products or reduces or allocates its inventory of Products, or (c) pursuant to Supplier’s rights under any provision of this Agreement.
- Unsatisfactory Credit Status. Each issuance of a Purchase Order to Supplier constitutes Distributor’s representation and warranty that Distributor can pay for the Products identified in the Purchase Order in accordance with the terms of this Agreement. Distributor shall furnish Supplier with such statements accurately and fairly evidencing Distributor’s financial condition as Supplier may, from time to time, reasonable request. Throughout the term, Distributor shall be in compliance with all loan covenants and other obligations to its lenders. Distributor shall Notify Supplier immediately of any and all events that have had or may have a material adverse effect on Distributor’s business or financial condition, including any change in management, sale, lease, or exchange of a material portion of Distributor’s assets, a Change of Control (as defined in Section 15.2) or ownership, or breach of any loan covenants, or other material obligations of the Distributor to its lenders. If, at any time, Supplier determines in its sole discretion that Distributor’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Supplier’s other rights under this Agreement, at law, or in equity, Supplier may without liability or penalty, take any of the following actions:
- reject any Purchase Order received from Distributor;
- cancel any previously accepted Purchase Orders;
- delay any further shipment of Products to Distributor;
- stop delivery of any Products in transit in the possession of a common carrier or bailee and cause the Products in transit to be returned to Supplier;
- terminate this Agreement; or
- accelerate the due date of all amounts owing by the Distributor to the
- Guaranty. As a material inducement to the Supplier to enter into this Agreement, contemporaneously with the execution of this Agreement, Distributor shall deposit five thousand dollars ($5,000 USD) in immediately available funds via wire transfer to an account designated by the Supplier (the “Guaranty Amount”) as indicated This Guaranty Amount is not applicable to be credited to any Purchase Order except the very last one towards the termination of this Agreement.
Account Name: IKRUSHER INC.
Beneficiary Account Number: 2387441385
Bank Routing Number (Domestic Wires): 121000248
Bank Routing Number (Direct Deposits and ACH transactions): 121042882 Bank Swift code (International Wires): WFBIUS6S
Receiving Bank Name: Wells Fargo Bank, N.A.
Bank Address: 1200 S. Baldwin Ave, Arcadia, CA 91007
- Order Forecast. Distributor agrees to provide an order forecast of one hundred thousand dollars ($100,000 USD) with Supplier on a monthly basis by issuing a Purchase Order for the forecasted Products and Supplier agrees to stock inventories for the forecasted Products accordingly.
- Recordkeeping. On request, during the Term and within one year after the expiration or earlier termination of this Agreement, Supplier may request, and Distributor shall promptly produce, Distributor’s files, records, and all pertinent information relating to its sales, marketing, and inventory of the Products, and relating to this Agreement.
4. SHIPMENT, DELIVERY, ACCEPTANCE, AND INSPECTION
- Shipment and Delivery Requirements. Supplier will provide the Distributor with an estimated shipping date for each Purchase Order as soon as the Distributor accepts the Invoice. For each Purchase Order, upon the receipt of the full payment of the Invoice, the Products will be shipped in the manner as specified by Supplier, and no later than the estimated shipping date provided by the Supplier shall ship Products to the delivery locations, specified in this Agreement or as otherwise agreed to by the Parties. Within fourteen (7) business days of Supplier’s receipt of the required payment toward the Products in any Purchase Order, Supplier shall notify Distributor of the projected shipping date for such Products. Unless expressly agreed to by the Parties in writing, Supplier shall select the method of shipment of and the carrier for the Products. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of Products to Distributor. Each shipment constitutes a separate sale, and Distributor shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order. Unless expressly agreed to by the Parties, Supplier shall deliver the Products to the delivery location, using Supplier’s standard methods for packaging and shipping the Products.
- Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that Supplier shall use commercially reasonable efforts to deliver all Products on or before the projected delivery date. Supplier is not liable for any loss or damage arising from any delay in filing any order, failure to deliver, or delay in No delay in the shipment or delivery of any Product relieves Distributor of its obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Products.
- Transfer of Title and Risk of Loss.
- Title. Title to the Products shipped under any Purchase Order passes to the Distributor upon the delivery of Products to the Distributor and only after the Distributor has made full payment for such
- Risk of Loss. Notwithstanding any agreement between Distributor and Supplier concerning transfer of title or responsibility for shipping costs, risk of loss to Products shipped under any Purchase Order passes to Distributor upon delivery of the Products, whether a partial or complete fulfillment of a Purchase Order, and Distributor will bear all risk of loss or damage with respect to the producs.
- Packaging and Labeling. Supplier will properly pack, label, and ship Products as in accordance with applicable law and industry standards, and shall provide Distributor with shipment
- Inspection. Distributor shall inspect the shipment of Products within seven (7) days of receipt (the “Inspection Period”), per the written inspection criteria agreed upon by both Parties, to verify such shipment’s conformity to the relevant Invoice as of the time the Products were delivered to the Distributor will be deemed to have accepted the Products unless it notifies Supplier in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by the Supplier. “Nonconforming Products” means: (i) any Product that is shipped and is different than the Product identified in the corresponding Invoice or Purchase Order; (ii) the Product’s label or packaging incorrectly identifies its contents. If Distributor notifies Supplier within the Inspection Period of any Nonconforming Products, and Supplier does not dispute Distributor’s Notice of said Nonconforming Products within ten (10) days of its receipt of said Notice, Supplier shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit the Price for such Nonconforming Products.
- Distributors Remedies Nonconforming Products. THE REMEDIES SET FORTH IN SECTION 4.6 ARE DISTRIBUTOR’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NON-CONFORMING PRODUCTS.
- Limited Right of Return. Except as otherwise provided under this Agreement, all sales of Products to Distributor under this Agreement are made on a one-way basis and Distributor has no right to return Products purchased under this Agreement.
- Distributor’s Insurance Obligations. During the Term, Distributor shall, at its own expense, maintain and carry in full force and effect any and all required insurance policies, including without limitation commercial general liability insurance. All insurance policies maintained by Distributor must be provided by financially sound and reputable insurers.
5. PRICE AND PAYMENT
- Price. During the Term of this Agreement, Distributor shall purchase the Products from the Supplier at the prices set forth on Schedule 1 attached hereto (“Prices”) for generic inventories, on condition that the Distributor fulfills the monthly order forecast as indicated in 3.8. The Price will be subject to adjustment if the Distributor fails to fulfill the monthly order forecast as indicated in 3.8. The Price for the Products with custom specifications will be evaluated and quoted by the Supplier case by case.
- Payment Terms. During the Term of this Agreement, Distributor shall pay amounts due to each Invoice pursuant to this Agreement as follows:
- (a) For the Products that are generic inventories to the Supplier, full payment prior to the shipment being dispatched from the Supplier’s facility. Distributor shall make all payments in US dollars by check or wire transfer.
- (b) For the Products that are customized specifications, 50% deposit prior to mass production and 50% balance before shipment being dispatched from the Supplier’s facility. Distributor shall make all payments in US dollars by check or wire transfer.
- For the Products that the Supplier doesn’t have on-hand in its inventory when ordered, 30% deposit after acceptance of an Invoice before starting production and 70% prior to the shipment after the Products are produced. Supplier agrees to ship the Products from the factory to its warehouse upon the production completion without collecting the corresponding full payment indicated on the Invoice from Distributor, Distributor is allowed to pick up the needed quantity of Products by batches at Supplier’s Denver warehouse by paying them in full amounts without allocating the 30% deposit. The 30% deposit will be credited to finalize the Invoice in its Distributor shall make all payments in US dollars by check or wire transfer.
- No Set-Off Right. Distributor shall not, and acknowledges that it will have no right, under this Agreement, any Purchase Order, any other agreement, document or law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Supplier or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Supplier or Supplier’s affiliates, whether relating to Supplier’s or its affiliates’ breach or non-performance of this Agreement, any Purchase Order, any other agreement between (a) Distributor or any of its affiliates and (b) Supplier or any of its affiliates, or otherwise.
- Security Interest. To secure Distributor’s prompt and complete payment and performance of any and all present and future indebtedness, obligations, and liabilities of Distributor to Supplier, Distributor hereby grants Supplier a first-priority security interest, with priority over all other liens, claims, and encumbrances, in all inventory of Products purchased under this Agreement as security interest for the Distributor’s obligations under this Agreement. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code. Distributor authorizes and consents to Supplier filing UCC-1 financing statements with any and all appropriate regulatory bodies or government agencies and Distributor shall execute such statements or other documentation necessary to perfect Supplier’s security interest in such assets. Distributor also authorizes Supplier to execute, on Distributor’s behalf, such statements or other documentation necessary to perfect the Supplier’s security interest in such assets. Supplier shall be entitled to all applicable rights and remedies of a secured party under applicable law.
6. TERM; TERMINATION
- Initial Term. The term of this Agreement commences on the Effective Date and continues for a period of two (2) years unless it is terminated earlier pursuant to the terms of this Agreement or applicable law (the “Initial Term“).
- Renewal Term. Upon expiration of the Initial Term, the term of this Agreement will renew upon a written Notice of a renewal 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“) issued by either Party and mutually agreed by the Parties, the duration of the Renewal Term will be determined by the Parties collectively at the time when the Parties decided to exercise the renewal. If the Initial Term or any Renewal Term is renewed for any Renewal Term(s) pursuant to this Section 6.2, the terms and conditions of this Agreement during each such Renewal Term will be 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.
- Additional Charges. Except as expressly provided in this Agreement, Supplier will not be liable for and will not be required to make payments to Distributor, directly or on account of claims by Distributor’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims and general and administrative burden charges.
- Supplier’s Right to Terminate for Cause. Supplier may terminate this Agreement, by providing written Notice to Distributor:
- if Distributor repudiates or threatens to repudiate, any of its obligations under this Agreement;
- except as otherwise specifically provided under this 6.4, if Distributor is in material breach of, or threatens to breach, any representation, warranty or covenant of Supplier under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Distributor within a commercially reasonable period of time under the circumstances, in no case exceeding fourteen (14) days following Distributor’s receipt of written Notice of such breach;
- notwithstanding (b), if Distributor fails to, or threatens not to, timely Products pay for the Products conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Agreement;
- if Distributor (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
- if Distributor fails to provide Supplier, within a commercially reasonable time after Distributor’s request (but in no case exceeding five (5) days after such request) with adequate and reasonable assurance of Supplier’s financial and operational capability to perform timely any of Supplier’s obligations under this Agreement; or
- upon the occurrence of any other event constituting grounds for termination set forth in any other sections of this Agreement (including 17).
- Effective Termination. Any termination under this 6.5 will be effective on Distributor’s receipt of Supplier’s written Notice of termination or such later date
(if any) set forth in such termination Notice. Upon the occurrence of any of the events described under this 6.5, Supplier may, in addition to any of its other rights to suspend performance under this Agreement or applicable law, immediately suspend its performance under all or any part of this Agreement, without any liability of Supplier to Distributor, and, notwithstanding anything to the contrary contained in this Agreement.
7. COMPLIANCE WITH LAWS
- Compliance. Distributor represents and warrants to Supplier that it is in material compliance with all laws applicable to this Agreement, Distributor’s operation of its business and the exercise of its rights and performance of its obligations Distributor shall immediately cease distribution of any of the Products and any other activity under this Agreement with respect thereto upon written notice by Supplier to the extent reasonably required in Distributor’s reasonable discretion in connection with Distributor’s efforts to cooperate or comply with any actual or potential government action relevant to the Products.
- Permits, Licenses, and Authorizations. Distributor shall obtain and maintain all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained or required to be obtained, from any governmental authority (collectively “Permits”) necessary for the exercise of its rights and performance of Distributor’s obligations under this
- Illegal Activity. In the event of any state or federal law making Supplier’s or Distributor’s continued performance under this Agreement illegal, or if Supplier’s or Distributor’s continued performance would expose Supplier, or its agents or affiliates, to any form of liability, Supplier may terminate this Agreement and will not be obligated to continue performance. Supplier may provide Distributor with a written notice giving Distributor thirty (30) calendar days to cease any illegal activity that the Supplier becomes aware of. If Distributor fails to cease such activity within thirty (30) calendar days, Distributor shall indemnify, defend, and hold harmless Supplier and its Indemnified Parties 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’s fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Supplier, awarded against the Indemnified Party, arising out of or relating to any claim of a third party created by Distributor’s conduct.
8. REPRESENTATIONS AND WARRANTIES; PRODUCT WARRANTY
- Distributor’s Representations and Warranties. Distributor represents and warrants to Supplier that:
- it is a registered corporate entity, duly organized, validly existing and in good standing under the laws of its formation;
- it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
- the execution, delivery, and performance of this Agreement will not violate, conflict with, require consent under or result in any breach or default;
- Distributor will not make any false claims in any packaging, labeling, advertising, or promotional material regarding the Products
- Distributor has all necessary corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and The execution and delivery by Distributor of this Agreement, the performance by Distributor of its obligations hereunder and thereunder and the consummation by Distributor of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Distributor; and this Agreement constitutes a legal, valid and binding obligation of Distributor, enforceable against Distributor in accordance with the Agreement’s terms;
- it has obtained, or if it has not, shall obtain all material licenses, authorizations, approvals, consents or permits required by applicable laws to conduct its business generally and to exercise its rights and perform its obligations under this Agreement;
- it is not insolvent and is paying all of its debts as they become due;
- Distributor has for the last twelve months complied and will comply with all material Laws applicable to the Products. “Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any governmental entity, but does not include any United States federal law concerning cannabis, including the Controlled Substances Act, 21 U.S.C. §§ 801, et. ; and
- Distributor acknowledges that it is, as of the date of the Agreement, and will use reasonable efforts to continue to be familiar with the Products, including information manuals, technical specifications and sales sheets (“Documentation”). Distributor agrees and warrants to Supplier that it will use the Products in conformity with and in compliance with the Documentation. The Distributor understands that the Supplier will not provide any return or exchange for the Products not used or handled in conformity with the Documentation. Finally, Distributor understands that Supplier disclaims all responsibility for any direct or indirect consequences of Distributor using or handling the Products in a manner not in compliance with the
- Product Warranty. Supplier warrants to the Distributor and any end users of the Products that (the “Product Warranty“) for a period of six (6) months after the purchase of the Products by the end user, the Products will conform, in all respects, to the specifications, standards, drawings, samples, descriptions, quality requirements, performance requirements, statements of work, and fit, form and function requirements furnished, specified or approved by Distributor for the Products.
- Third Party Products. Distributor acknowledges and agrees that Products purchased by Distributor under this Agreement may contain, be contained in, incorporated into, attached to, or packaged together with the products manufactured by a third party (“Third Party Products“). Third Party Products, to the extent any are used, are not covered by the Product For the avoidance of doubt, Supplier makes no representations or warranties regarding any Third Party Products.
- Warranty Limitations. Product Warranties do not apply where the Product:
- has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Supplier;
- has been reconstructed, repaired, or altered by persons other than Supplier or its authorized representative(s); or
- has been used with any other product, hardware, good, or thing that has not been previously approved in writing by the
- Prohibited Acts. Distributor represents, warrants, and agrees that it will refrain from any and all of the prohibited acts listed in (a)-(h) below and that any violation of this Section 8.5 constitutes a Breach of this Agreement. Distributor
shall not engage in the following prohibited acts:
- engage in any unfair, competitive, misleading, or deceptive practices, including without limitation those respecting Supplier, Supplier’s Trademarks, or the Product, including any product disparagement, false advertising, or “bait-and-switch” practices;
- Separate any Product or accessories sold, bundled, or packaged with any Product from the Product or sell, license, or distribute or remove, translate, or modify the contents or documentation of or related to the Product or accessories, including without limitation any end user license agreements or warranty statements;
- market or distribute the Product other than in the form and packaging as delivered by the Supplier to Distributor under this Agreement, without the express written consent of the Supplier;
- sell, advertise, promote, distribute, or offer to sell or distribute any of the Products in a region that is subject to Supplier’s exclusivity agreement with another party as discussed in Section 2;
- during the Term cease to function actively as a full-service distributor;
- violate any distribution contracts applicable to, related to, or contemplated by this Agreement, and the operation of Distributor’s business;
- violate any laws applicable to or related to the Products or the operation of Distributor’s business;
- make any representations, warranties, guarantees, indemnities, similar claims or other commitments:
- actually, apparently or ostensibly on behalf of Supplier; or
- to any customer or other person with respect to the Products, which 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
- Definition. “Liability” means, with respect to any person, any and all losses, claims, charges, debts, demands, actions, causes of action, suits, damages, obligations, payments, costs and expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities and similar obligations, exoneration covenants, obligations under contracts, guarantees, make whole Agreements and similar obligations, and other liabilities and requirements, including all contractual obligations, whether absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, joint or several, whenever arising, and including those arising under applicable laws, action, threatened or contemplated action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all costs and expenses, whatsoever reasonably incurred in investigating, preparing or defending against any such actions or threatened or contemplated actions) or order of any governmental entity or any award of any arbitrator or mediator of any kind, including any Liability for
- Supplier Indemnification. Supplier shall defend, indemnify and hold Distributor and its officers, directors, employees, agents, successors, and permitted assigns harmless from and against any Liability, including reasonable attorney’s fees and disbursements arising out of Supplier’s material breach of this Agreement. The Supplier shall not enter into any settlement without the Distributor’s written consent. Notwithstanding anything to the contrary in this Agreement, Supplier is not obligated to indemnify or defend Distributor or Indemnified Parties against any claim, whether direct or indirect, under Section 8 if the claim or corresponding Liability arises out of or result from: (a) Distributor’s marketing, advertising, promotion, or sale of Products purchased under this Agreement in any manner not otherwise authorized under this Agreement; (b) use of a Product purchased under this Agreement in combination with any products, materials, or equipment supplied to the customer by a person other than Supplier, Distributor, or either of their authorized representatives; or (c) any modifications or changes made to the Products by or on behalf of any person other than the Supplier or its representatives.
- Distributor Indemnification. Distributor shall defend, indemnify and hold harmless Supplier and its parents, officers, directors, partners, members, shareholders, employees, agents, successors, and permitted assigns from and against any Liability, including reasonable attorneys’ fees and disbursements, for claims arising out of Distributor’s breach of this Agreement, negligence, or willful misconduct, and claims including but not limited to, those arising out of:
- a breach or non-fulfillment of any representation, warranty or covenant of this Agreement by Distributor or its personnel; or
- a breach or non-fulfillment of any representation, warranty, or covenant of any agreement between distributor and a third party; or
- any negligent or more culpable act or omission of Distributor or its personnel (including any recklessness or willful misconduct) in connection with the performance of this Agreement; or
- any bodily injury, death of any person or damage to real or tangible personal property caused by the acts or omissions of Distributor or its personnel; or
- any failure by Distributor or its personnel to comply with any applicable laws; or
- any failure by Distributor arising out of or relating to any packaging or labeling issues.
- Settlement of Indemnity Claims. For any claim for which Supplier is entitled to be indemnified, Distributor shall not enter into any settlement without Supplier’s written
- Notification of Liability and Process. Any Party seeking indemnification pursuant to this Section 9 shall promptly notify the other Party of the claim as to which indemnification is sought, shall afford the other Party, at the other Party’s sole expense, the opportunity to defend or settle the claim and shall cooperate to the extent reasonably requested by the other Party in the investigation and defense of such a
- Duration of Indemnification. The foregoing indemnification obligations shall survive any termination or expiration of this Agreement, in whole or in part, or the expiration or termination of the
- Limitation of Indemnification. In no event shall Supplier be liable for any special, consequential, indirect, collateral, incidental or punitive damages or lost profits or failure to realize expected savings or other commercial or economic loss of any kind, arising out of or relating to any breach of this Agreement, or any other obligations of Supplier herein, or any use of the Products, and Distributor hereby knowingly and expressly waives any claims or rights with respect thereto. The foregoing limitations apply even if they limit or are inconsistent with the Distributor’s remedies under other provisions of this Agreement.
10. CONFIDENTIALITY; NON-SOLICITATION
- Confidential Information Definition. “Confidential Information” means any information disclosed by a Party’s representatives (including said Party’s directors, officers, employees, contractors, representatives, agents and professional advisers of the Party, its parent company, its subsidiaries, and their affiliated companies) to the other Party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, plant, and equipment), that is designated as “Confidential,” “Proprietary,” or some similar designation or that, due to its nature or the circumstances under which it is disclosed to a Party, ought to be treated as confidential. Confidential Information shall include without limitation information regarding Supplier’s trade secrets, patents, pending patents, product manufacturing techniques, customer lists, the pricing on the Products contained in Schedule 1 of this Agreement, and any and all proprietary and Confidential Information. Confidential Information may also include information disclosed to the disclosing Party by third parties, including its Confidential Information will not, however, include any information that the receiving Party can document to the reasonable satisfaction of the disclosing Party (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) was publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) was already in the possession of the receiving Party at the time of disclosure by the disclosing party;(iv) was obtained by the receiving Party from a third party without a breach of any Party’s obligations of confidentiality; or (v) was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
- Confidentiality Agreement.
- Ownership of Confidential Information; No Disclosure or Use of Confidential Information. All Confidential Information which either Party creates or otherwise develops or which comes into either Party’s possession or that previously came into a Party’s possession shall be and remain the exclusive property of whichever Party it originally belonged to. Unless otherwise authorized in writing by the other Party, the Party that was not the original owner of the Confidential Information will maintain all Confidential Information in confidence and, except as necessary in conjunction with Party’s work in the course of this Agreement, will not copy or make notes of, divulge to anyone outside the Party that was the original owner of that Confidential Information or use any of the Confidential Information for Party’s own or another’s benefit, either during or after the Term of this Agreement. Each Party agrees that they will promptly disclose to each other all Confidential Information obtained from the other Party in the course and scope of their mutual relationship. Each Party will abide by any policies and procedures adopted from time-to-time by the Parties during the Agreement to facilitate such disclosures.
- Returning Documents and Tangible Property. Upon request of the either Party and, in any event, upon termination of this Agreement, each Party will promptly surrender and deliver to the other (and will not keep in Party’s possession or deliver to anyone else) and agree not to use, whether directly or indirectly, any Confidential Information, records, data, notes, reports, proposals, lists, correspondence, computer code, specifications, drawings, blueprints, sketches, flow diagrams, materials, equipment, devices or any other documents or property (including photocopies or other reproductions of any of the aforesaid items) of the other
- Confidential Information of Third Parties. During the course of this Agreement, either Party may receive, under nondisclosure agreements agreed to by authorized representatives of the Parties, information claimed by third parties to be their Confidential Information. Each Party agrees that they will respect such agreements and will not disclose such information to any person or organization, except as is necessary in carrying out Party’s work pursuant to this Agreement so long as that Party’s disclosure is consistent with the other Party’s agreement with such third parties. At the request of either Party and, in any event, upon the termination of this Agreement, each Party will promptly surrender to the other Party any such
- Use of Company Logo and Confidential Information. Aside from the express permission granted herein, use of the company logo and other Confidential Information is prohibited. If permission is granted, use of the company logo and other Confidential Information is limited to activities associated with this Agreement Logos and other Confidential Information must not be used for activities that are not directly associated with this Agreement and any such use will be considered a Breach (as defined in Section 14 below). Further uses and permission may be granted only by the express written consent of the Supplier. If permission is granted, logos and Confidential Information must not be used for activities that are beyond the scope of that permission and any use beyond the scope constitutes a Breach.
- Non Solicitation. As a material inducement to Supplier to enter into this Agreement, consideration of the compensation payable hereunder, and for other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, as well as in recognition of the fact that the value of Supplier’sbusiness, including the goodwill, would be diminished substantially if Distributor or any affiliate of Distributor were to engage in any business or activities in competition with Supplier, Distributor covenants and agrees that, except as required in the performance of the duties set forth in this Agreement, Distributor shall not directly or indirectly solicit, induce or encourage any persons or entities Distributor knows or reasonably should know to be Supplier’s existing or forthcoming clients, customers, business affiliates, or agents to curtail, modify, interfere, disrupt, terminate, or alter in any way its relationship with the Supplier.
- Confidentiality of Pricing and Content. Distributor shall not disclose or share, in any manner whatsoever, the contents of this Agreement, including but not limited to any of the pricing set forth in Schedule 1 attached hereto, to any third person or entity or affiliates
11. INTELLECTUAL PROPERTY RIGHTS
- Ownership; Authorized Use. Nothing contained in this Agreement will be deemed or construed as a transfer, assignment or license to Distributor of any patent, copyright, trade secret, trademark or service mark or other intellectual property right (collectively “Intellectual Property”) in any of the Products, and Distributor expressly acknowledges and agrees that all Supplier’s rights, title and interest in all of the foregoing remain vested in Supplier, as Supplier’s sole and exclusive Distributor will not take or permit any action that will infringe, diminish or interfere with any of the Supplier’s rights in any of the Products. Distributor acknowledges and agrees that Distributor shall not acquire any ownership interest in or rights to Supplier’s Intellectual Property under this Agreement. Distributor expressly authorizes, agrees, and consents to Supplier’s use of Distributor’s Intellectual Property for purposes related to this Agreement. Supplier acknowledges and agrees that all rights, title and interest in Distributor’s Intellectual Property remains vested in the Distributor.
- Alteration of Notices. Supplier and Distributor shall not alter, remove, modify, or obscure any Intellectual Property notices that appear on any of the Products, unless otherwise required pursuant to applicable law.
- Infringement. Upon becoming aware of any infringement of Supplier’s Intellectual Property Distributor will promptly provide written Notice to Supplier describing in reasonable detail the facts surrounding the infringement.
- Use of the Name “iKrusher” by Distributor. Subject to Section 1.3, Distributor is authorized to sell products branded by “iKrusher”, promote the “iKrusher” brand, and refer to and advertise itself as an authorized distributor of the Any use of the name “iKrusher” by Distributor in connection with its distribution and sale of the Products or advertising of the name “iKrusher” is at Distributor’s sole cost and expense. Distributor shall not use the name “iKrusher” or any trademark: (i) on, directly, or indirectly in connection with, any place of business or other facilities that is not used for, or directly related to, the marketing of the Products; (ii) in any way not used for, or directly related to the marketing of the Products; (iii) on, or directly or indirectly in connection with signs, letterheads, advertising, or other promotional materials, or otherwise, in a manner not related to the sale of the Products; or (iv) in, or directly or indirectly as a part of, the trade, corporate, or firm name or style of Distributor or of any division, subsidiary, or affiliate thereof.
- Prohibited Acts. Distributor shall not: (i) take any action that may interfere with any of Supplier’s rights in or to Supplier’s Intellectual Property, including Supplier’s ownership or exercise thereof; (ii) challenge any right, title, or interest of Supplier in or to Supplier’s Intellectual Property; (iii) make any claim or take any action adverse to Supplier’s ownership of Supplier’s Intellectual Property; (iv) use any mark, anywhere, that is confusingly similar to Supplier’s trademark(s); or (v) engage in any action that disparages, dilutes the value of, or reflects negatively on the Products purchased under this Agreement.
12. FORCE MAJEURE
- Suspension of Obligations. If by reason of “Force Majeure”, which shall mean, for purposes of this Agreement: (a) acts of God, war, riots, civil unrest, acts of the public enemy, fires, earthquakes, severe weather or storms; or (b) to the extent beyond the reasonable control of the affected Party, strikes, labor disputes, labor shortages, product transportation interruptions or shortages, accidents, unavailability of raw materials or supplies, or any act in consequence of compliance with any order of any government or governmental authority, and, in the case of either (a) or (b), the affected Party is delayed or prevented from complying with its obligations under this Agreement, such affected Party shall give Notice within seven (7) calendar days of the Force Majeure Event to the other Party, stating an estimated date by which the contingency will be removed. The affected Party shall use diligent efforts to end the contingency and mitigate any interruption to business to ensure the effects of the Force Majeure are minimized. The affected Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
- Termination. To the extent that a Party is or has been delayed or prevented by Force Majeure from complying with its obligations under this Agreement, the other Party may suspend the performance of its obligations until the contingency is removed. If the Party that is delayed or prevented from complying with its obligations under this Agreement cannot permanently remove the contingency, or if the contingency affecting such Party results in a delay extending beyond forty-five (45) days, the other Party (upon Notice) shall have a right to terminate this Agreement.
13. PUBLIC STATEMENTS; RECALLS
- Public Statements. Absent prior written approval by the other Party, neither Party shall use, or authorize others to use, the name, symbols, or marks of the other in any advertising or publicity material or make any form of representation or statement using the other’s name, symbol, mark, or Intellectual Nor shall any Party use, or authorize others to use, the name, symbol, mark, or Intellectual Property, of the other, in any manner which would constitute an express or implied endorsement by such other of any commercial product or service without the other’s prior written approval.
- Recalls. Distributor shall not issue a recall for any of the Products without the prior written consent of the
- Breach. Each Party acknowledges that any violation of this Agreement including but not limited to failure to perform, default, failure to act in good faith and fair dealing, failure to use best efforts to fulfill obligations (collectively “Breach”) may result in immediate termination of this Agreement and may subject the breaching Party to a civil action by the other Party for any and all losses sustained as a result of the Breach
- Remedies. Remedies for Breach of this Agreement shall include, but not be limited to money damages, equitable relief, and any other remedies available under the laws of the State of
- Equitable Remedies. Distributor acknowledges and agrees that: (a) a Breach or threatened Breach by such Party of any of its obligations would give rise to irreparable harm to the 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 of these obligations, Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at law, at equity, or otherwise in respect of this Breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, restitution, rescission, specific performance, and any other relief that may be available from a court or tribunal of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or to prove that monetary damages do not afford adequate Distributor agrees that Distributor will not oppose or otherwise challenge the appropriateness of equitable relief, or the entry by a court of competent jurisdiction of an order granting equitable relief.
15. ASSIGNMENT; SUCCESSORS
- Assignees and Successors. Neither Party may assign any of its rights or delegate any of its obligations to a third party under this Agreement. However, either Party may assign or have a succession to said rights upon receipt of written consent by the other Any attempted assignment in contravention of the foregoing shall be null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Subject to the terms of this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Change of Control. In the event of a Change in Control of either Party, the Agreement shall continue in force and effect and both Parties shall be subject to the terms, covenants, and provisions in the Agreement. However, the Party not undergoing the Change of Control shall have the right to terminate this Agreement upon thirty (30) days’ written Notice. A “Change of Control” shall mean a change in control of either Party (and not any person or entity that hereafter becomes a successor to all or substantially all of the business or assets of such Party by reason of a Change of Control) and shall be deemed to have taken place if: (i) a third person becomes the beneficial owner of shares of the capital stock of either Party having more than 50% of the total number of votes that may be cast for the election of directors of the entity; (ii) the sale or other disposition (excluding mortgage or pledge) of all or substantially all of the assets of the Party; or (iii) the merger or other business combination of the Party with or into another corporation or entity pursuant to which the Party will not survive or will survive only as a subsidiary of another corporation or entity, in either case with the stockholders of the Party prior to the merger or other business combination holding less than 50% of the voting shares of the merged or combined companies or entities after such merger or other business combination.
- 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.
- Relationship of the Parties. The Parties to this Agreement are independent contractors and nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship, or the formation of a legal entity of any type between Supplier and Neither Party, by virtue of this Agreement, shall have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, compliance with any and all applicable state or federal laws, or the manner and means through which the work under this Agreement will be accomplished. The relationship created hereby between the Parties is solely that of Supplier and Distributor.
- Entire Agreement. This Agreement, including and together with any related exhibits, schedules and the applicable terms of any Purchase Orders, 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
- Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of Supplier contained herein will survive the expiration or earlier termination of this Agreement and any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this
- Notice. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice“) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered 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.
|Notice to Supplier:||iKrusher, Inc. 11818 Clark Street
Arcadia, CA 91006 Attention: Yoyo Yu
Email: [email protected]
|Notice to Distributor:|
- Headings. The headings in this Agreement are for reference and convenience only and shall not affect the meaning or interpretation of this Agreement in any For purposes of this Agreement: (a) the words denoting the singular shall include the plural and vice versa; (b) the words denoting any gender shall include all genders; and (c) words denoting persons shall include entities and individuals, and vice versa.
- Severability. If any term, provision, covenant, or restriction of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
- Amendment and Modification. This Agreement may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both Parties
- Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute“), shall be submitted for negotiation and resolution to the Supplier (or to such other person of equivalent or superior position designated by Supplier in a written Notice to Distributor) and the Distributor (or to such other person of equivalent or superior position designated by Distributor in a written Notice to Supplier), by delivery of written Notice (each, a “Dispute Notice“) from either of the Parties to the other Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, either Party may submit to Arbitration (as discussed in Section 17 below).
- No Waiver. The failure of either Party to enforce any condition, obligation, or term of this Agreement at any time shall not be construed as a waiver of that condition or part, nor shall it forfeit any rights to future enforcement No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
- Governing Law. This Agreement, including any attachments hereto, is governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to any conflict or choice of law provision that would result in imposition of another state’s laws. THE PARTIES ACKNOWLEDGE THAT (A) CALIFORNIA HAS ENACTED CERTAIN LEGISLATION TO GOVERN THE MARIJUANA AND HEMP INDUSTRIES AND (B) THE POSSESSION, SALE, MANUFACTURE, AND CULTIVATION OF MARIJUANA, HEMP, OR THE PRODUCTS DERIVED FROM MARIJUANA OR HEMP IS ILLEGAL UNDER FEDERAL LAW. THE PARTIES WAIVE ANY DEFENSES BASED UPON INVALIDITY OF CONTRACTS FOR PUBLIC POLICY REASONS AND/OR THE SUBSTANCE OF THE CONTRACT VIOLATING FEDERAL LAW.
- Choice of Forum. Subject to the Arbitration provision below, each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party, in any forum other than the United States District Court for the Central District of California if brought in federal court, or in the Superior Court of California, County of Los Angeles, if brought in state court. Each Party irrevocably and unconditionally submit to the exclusive jurisdiction of said courts. Each Party agrees that a final judgment in any action, litigation or proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to 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, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is 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.
- Arbitration. In the event of any Dispute arising out of or relating to this Agreement, including the determination of the scope or applicability of this Section, except as otherwise specifically provided herein, will be determined exclusively by arbitration held in California. The Parties hereto agree that in case of any Dispute arising out of or relating to this Agreement, the Dispute shall be determined by arbitration as follows. Such arbitration shall take place before a neutral arbitrator in Los Angeles County, California for determination in accordance with the JAMS Comprehensive Arbitration Rules and Procedures, including any subsequent modifications or amendments to such Rules, as the exclusive remedy for such controversy, claims or disputes. Any arbitration award shall be based upon and accompanied by a written opinion containing findings of fact and conclusions of law. The determination of the arbitrator(s) shall be conclusive and binding on the Parties hereto, and any judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
- Jurisdiction. The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in Los Angeles, California, with respect to this Section to compel arbitration, to confirm an arbitration award or order, or to handle court functions. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any California state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.
- Removal; Waiver. The Parties waive: (i) any right of removal to the United States federal courts; and (ii) any right in the United States federal courts to compel arbitration, to confirm any arbitration award or order, or to seek any aid or assistance of any kind.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set forth above.