Revised Retailer General Terms Conditions 12.22.2023
These Retailer General Terms & Conditions (“General Terms”) govern the rights, restrictions, and obligations of authorized 4ocean retailers and/or wholesalers (collectively each, a “Retailer”) with respect to the purchase, advertising, display, and resale of all goods or products (“Products”) of 4ocean Public Benefit Corporation (“4ocean”).
- OFFER AND GOVERNING PROVISIONS
Retailer acknowledges and agrees that these General Terms and 4ocean’s Policy on Brand Image & Advertised Prices (“MAP Policy”) govern the relationship between 4ocean and Retailer (collectively “Retailer Agreement”). 4ocean shall have the right to modify these General Terms and the MAP Policy at any time in its sole discretion. While 4ocean will endeavor to provide reasonable notice of all changes to the General Terms and MAP Policy, 4ocean is not obligated to provide such notice and Retailer is obligated to periodically review the General Terms and MAP Policy, as necessary, to stay up to date on the applicable terms. Retailer further acknowledges and agrees that its right to purchase, advertise, display, and resell any Products is expressly conditioned upon Retailer’s assent and compliance with these General Terms and MAP Policy. 4ocean specifically objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided or made available by Retailer to 4ocean. No such additional or different terms will be of any force or effect.
Retailer accepts this appointment as a non-exclusive reseller and agrees to use its best efforts to maximize sales of the Products in its store or on Retailer’s own proprietary online website (“Territory”). Retailer shall not, at any time during the term, directly or indirectly market, sell, promote, or solicit orders for any of the Products for ultimate retail sale from any location other than the Territory.
The rights, duties, and obligations listed in these General Terms and Conditions and Retailor Agreement may not be assigned by Retailer, whether voluntarily or by operation of law, without the prior written consent of 4ocean. Any assignment made by Retailer without the written consent of 4ocean shall be void and be of no effect.
- RETAILER REQUIREMENTS
Retailer is an entity that has been qualified and approved by 4ocean to resell Products. Retailer account approval or renewal is determined by 4ocean in its sole discretion and is based on various factors, including, without limitation, proximity to other Retailers, type of retail outlet, distinct customer base, performance, projected sales volume, and numerous aspects of Retailer’s physical location. Approval by 4ocean to sell Products from a particular brick and mortar or online retail location (“Location”) of Retailer does not constitute approval to sell the Products from any other retail Location; each such Location must be specifically and expressly approved separately by 4ocean in its sole discretion. All approved Locations must be wholly owned or operated by Retailer, including its online retail locations. The designation as a Retailer is non-transferable and pertains only to an owner or operator in respect of a specific store Location, not to the owner or operator in general. Retailer shall maintain an active tax resale permit for each state in which such Retailer sells Products, and Retailer shall provide 4ocean with copies of each such tax resale permit. Retailer will also exercise its best efforts to sell the Products and to promote the goodwill of 4ocean and the market reputation of the Products. Retailer will conduct the aforementioned activities in a professional manner and in accordance with the reasonable policies and procedures of 4ocean and the terms of this Agreement and require that its agents and employees conform to such policies and standards. Retailer shall maintain at all times a sufficient stock of Products for sale in the ordinary course of business.
- PURCHASE ORDERS AND ORDER ACCEPTANCE | MINIMUM ORDERS
“Purchase Order” shall mean an oral or written offer, submitted by Retailer or on its behalf, to purchase Products sold by 4ocean. Retailer shall purchase Products only from 4ocean, unless otherwise authorized by 4ocean in writing. All Purchase Orders are subject to acceptance or rejection by 4ocean, in its sole discretion. Acceptance will be deemed to occur only upon execution by 4ocean of an invoice or other specific written confirmation of sale in respect of the Purchase Order in question. Any changes to a Purchase Order must be requested in writing by Retailer to 4ocean at least seven (7) calendar days prior to the requested shipment date. Acceptance of any requested changes will be deemed to occur only upon execution by 4ocean, in its sole discretion, of an invoice reflecting such changes or other specific written confirmation in respect of such changed Purchase Order. Purchase Orders may be submitted to 4ocean by emailing them to: email@example.com or submit to their field representative who can submit the order electronically or by calling (561) 270-0650.
- Shipment | Risk of Loss | Title. 4ocean uses a ground shipping carrier of its choice. Subject to these General Terms, unless otherwise agreed by Retailer and 4ocean, all orders will be shipped on 4ocean’s account with the applicable carrier. The Retailer is responsible, and shall pay or reimburse 4ocean, for all freight charges, unless otherwise agreed. Unless otherwise agreed in a writing signed by both 4ocean and Retailer, all Product orders are shipped F.O.B. 4ocean’s loading dock (as the term F.O.B., is used in the Uniform Commercial Code) or, for ultimate destinations outside of the United States, EXW 4ocean’s loading dock (Incoterms 2010). Title to the Products and risk of loss or damage transfer to Retailer upon delivery to the carrier at 4ocean’s loading dock.
- Delivery Dates | Delays. 4ocean will ship Products as promptly as reasonably possible in accordance with the shipment date requested in the accepted Purchase Order. However, all delivery dates are approximate. 4ocean will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond 4ocean’s reasonable control, including but not limited to any act of God, act of Retailer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, pandemic, delay in transportation, theft, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay. Retailer’s exclusive remedy for any other delays, and for 4ocean’s inability to deliver for any reason, will be rescission of Retailer’s agreement to purchase the delayed Products.
- Installments. All orders shall be shipped to a single Retailer location, provided that 4ocean reserves the right to make delivery in installments; all such installments shall be separately invoiced and paid for by Retailer when due per the applicable invoice, without regard to subsequent deliveries.
- PRICES | PAYMENT TERMS | LATE FEES
The prices for Products will be 4ocean’s applicable retailer list prices for Products in effect on the date of shipment of such Products. Such retailer list prices may be modified by 4ocean from time to time. All initial stocking orders must be purchased by Retailer via credit card (Visa, Master Card, American Express, or Discover), on credit terms after credit approval, or cash-in-advance. Orders may be made on other terms only after Retailer returns a completed credit application to 4ocean and obtains written approval from 4ocean, in its discretion.
If approved, the terms of payment hereunder are net cash thirty (30) calendar days from the date of the invoice without deduction or setoff of any kind other than qualifying freight discounts, if applicable. 4ocean may issue its invoice to Retailer at any time after the Product is shipped by 4ocean. 4ocean may revoke freight discounts to Retailer on Retailer’s past due invoices and 4ocean will not ship Product to and may cancel orders placed by any Retailer with a past due account.
For any past due invoices, Retailer will be charged a delinquency and service fee of 1.5% per month or the highest rate permitted under applicable law, on amounts due to 4ocean while payment remains in arrears. Any Retailer payment rejected by the financial institution from which it is drawn for any reason, including, but not limited to, insufficient funds or closing of account, are subject to a $50.00 processing fee due to 4ocean plus any other fees due to third-party servicers in accordance with the payment terms described herein. Retailer shall pay or reimburse 4ocean for any and all costs and expenses incurred by 4ocean in the collection of any amounts due hereunder including, without limitation, the costs of any court proceedings and arbitration and attorneys’ fees and expenses.
- TAXES AND OTHER CHARGES
Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transactions between 4ocean and Retailer will be paid by Retailer in addition to the prices quoted or invoiced. In the event 4ocean is required to pay any such taxes or other charges, Retailer will reimburse 4ocean therefor on demand.
- TRADEMARKS | MARKETING MATERIALS | MODIFICATIONS
- Trademarks. All trademarks, service marks, trade dress, trade names, slogans, and logos of 4ocean or that identify Products, including without limitation the licensed marks listed on Schedule A (collectively, the “Trademarks”), and all patents, copyrights, trade secrets, and moral rights of 4ocean, are and shall remain the sole and exclusive property of 4ocean. 4ocean grants to Retailer a limited, revocable, nonexclusive, nontransferable license to use the Trademarks while Retailer’s account is active and in good standing as determined by 4ocean in its sole discretion; provided, however, that (a) the Trademarks are used solely in connection with the advertisement, promotion, and sale of the Products; and (b) Retailer uses the Trademarks in accordance with all applicable laws, rules, and regulations pertaining to trademarks in force at any time, including all applicable policies, instructions, and guidelines provided by 4ocean from time to time. All benefits from use of the Trademarks by Retailer, including without limitation the goodwill associated therewith, shall inure to the exclusive benefit of 4ocean. Retailer shall not, at any time, adopt or use without 4ocean’s prior written consent, any word or mark which is similar to, or is likely to cause confusion with respect to, any of the Trademarks. Except for the foregoing limited license to use the Trademarks, nothing in these General Terms shall be construed as granting to Retailer any license or other right under any patent, patent application, copyright, trade secret, or any other intellectual property right owned by 4ocean or any of its affiliates. Retailer shall not use any of the Trademarks as part of Retailer’s trade or business name, or in any other way that 4ocean considers misleading or objectionable. The Trademarks shall not be distorted, modified, manipulated, or altered in any way, or used in any Marketing Materials or campaigns without the prior written consent of 4ocean.
- Marketing Materials | Advertisements. Only marketing materials which include, but are not limited to, copy, print, brand statements, Advertisements, licensed materials, web product images, and Trademarks (collectively, “Marketing Materials”), which have been provided by 4ocean to Retailer or that are approved in writing by 4ocean, may be used for displaying, advertising, or marketing the Products. The term “Advertisements” shall mean all materials that promote or advertise the Products, including, without limitation, print or digital ads, news releases, brochures, pamphlets, videos, photographs, web pages, signs, tags, labels, packaging, contracts, letterhead, invoices, and manuals. Retailer may use the approved product description copy provided to it by 4ocean. Retailer is not allowed to copy content directly from the 4ocean website, including, without limitation, Product descriptions, articles, or testimonials. Retailer shall not: (a) use, advertise, or promote the Products in any manner that is illegal or deceptive; or (b) sell products that are or may be seen as counterfeit Products or imitations of Products.
- E-COMMERCE | ONLINE SALES
Each website offering the Products for sale must be specifically approved in writing by 4ocean prior to the sale of any Products on such website. Marketing and/or resale of Products by a Retailer, whether directly or indirectly, at any website that is not owned or operated by Retailer is strictly prohibited. Retailer is not allowed to advertise Products for sale or sell Products, directly or indirectly, on any third-party e-commerce websites, internet forums, discount websites, or online auction sites, including, but not limited to, Amazon, Ebay, Etsy, or similar sites. A Retailer shall not contract with or otherwise agree to sell the Products to any third party who intends to sell the Products on a third-party sales or retail site. A Retailer approved by 4ocean to sell Products online must follow the guidelines for advertising Products as set forth in the General Terms and MAP Policy, as may be modified by 4ocean from time to time, including use of Trademarks, Product names, descriptions, and images. Any images containing the Products used on Retailer’s website must be approved in advance in writing by 4ocean. A Retailer selling Products online must make sure that any approved images on the Retailer’s website are up-to-date at all times.
- RESALE | TRANSFER OF PRODUCTS
Retailer shall sell, resell, transfer, distribute or otherwise give possession of any Products only directly to end-user retail customers. Retailer shall not sell, resell, transfer, distribute, or otherwise give possession of any Products to any distributor, retailer, franchisee, wholesaler, or any person or entity other than end-user retail customers without 4ocean’s specific, prior written authorization. Retailer shall not sell any Products at flea markets or similar venues, or on any third-party owned or operated website. Resale of any Products without prior written approval by 4ocean at any store or on any website is strictly prohibited and may result in termination of a Retailer’s account. Upon request by 4ocean, Retailer shall make its sell-through information by channel and SKU available to 4ocean in a format specified by 4ocean to ensure compliance with this section.
- EXPORT SALES
All sales will be invoiced and payable in US dollars. Unless otherwise agreed in a writing signed by both 4ocean and Retailer, 4ocean will not be the importer of record for any shipments outside the United States and will not be responsible for any compliance or customs broker fees, freight forwarder fees, freight expenses, customs duties, import fees, goods, services, or goods and services taxes (GST) or other value added taxes (collectively, “Import Costs and Fees”) associated with shipments outside the United States. Unless otherwise agreed in a writing signed by both 4ocean and Retailer, in case of any such export sales, Retailer shall be the importer of record in the destination country and shall be solely responsible, at its sole expense, for satisfying all formalities that may be required to import the orders into the applicable jurisdiction and for complying with applicable import laws and regulations, including, but not limited to, labeling requirements and applicable related product regulatory laws and regulations. Unless otherwise agreed in a writing signed by both 4ocean and Retailer, Retailer shall also be solely responsible for all Import Costs and Fees.
If 4ocean cannot completely fill a Purchase Order, the out-of-stock Products will be placed on backorder and shipped when next available. If more than half of a Purchase Order cannot ship due to backorders, the entire Purchase Order may be held by 4ocean until the entire Purchase Order can be shipped complete. Retailer will not be charged for the back-ordered items until such Products are shipped, and any freight discounts applicable to the original Purchase Order will also apply to the back-ordered Products when shipped.
- SHORTAGE | DAMAGED ITEMS | RETURNS
Any claim for damaged Products with respect to a shipment must be made within seventy-two (72) hours of Retailer’s receipt of the shipment by providing written notice thereof to 4ocean. Claims for damage or loss occurring during shipment must be made to the carrier, and not to 4ocean. Any claims for shortage or nonconforming Products must be made within fourteen (14) calendar days of Retailer’s receipt of the shipment by providing written notice thereof to 4ocean. Products may not be returned without prior written authorization from 4ocean and after Retailer has obtained a Return Material Authorization number (RMA #). Freight charges shall be pre-paid and borne by Retailer. Retailer bears the risk of loss or damage during shipment of the returned Products until the Products are received at 4ocean’s loading dock.
- PRODUCT SPECIFICATIONS
4ocean reserves the right to change Product specifications without notice. 4ocean is not obligated to replace, modify, or change any Products previously sold, nor is it required to send Products with the exact same specifications on each Purchase Order even when Retailer orders multiple quantities of the same Product.
- 4OCEAN FIXTURES AND DISPLAY MATERIALS
4ocean may, at its discretion, provide displays, signage, in-store fixtures, and/or other tangible material or equipment to Retailer for use in Retailer’s retail Locations in connection with the display, promotion, or presentation of Products (collectively, “Fixtures”). In the event that 4ocean provides such Fixtures, Retailer agrees that only 4ocean Products shall be placed on or in such Fixtures. 4ocean may require Retailer to transfer ownership of the Fixtures back to 4ocean upon reasonable notice to Retailer or upon termination. Upon such notice or within thirty (30) days of such termination, Retailer shall sell all Fixtures back to 4ocean for one dollar ($1). At 4ocean’s discretion, Retailer shall ship all Fixtures back to 4ocean, allow 4ocean to pick up Fixtures, or provide certification Retailer has destroyed Fixtures. Retailer shall keep the Fixtures free from all liens, security interests, and encumbrances. Retailer shall not sell or transfer the Fixtures to any third party. The Retailer shall be responsible for setting up the Fixtures, and shall indemnify 4ocean for any and all damages to person or property as a result of the Fixtures.
- TERM; TERMINATION; EFFECT OF TERMINATION OR EXPIRATION.
Term. This Retailer Agreement will be effective for an initial term of 60 calendar days commencing on the effective date hereof and shall automatically renew for successive periods of 60 calendar days, unless either party gives the other written notice to the contrary at least 30 calendar days prior to the scheduled date of renewal or unless sooner terminated in accordance with the provisions this Section. Notwithstanding, either party may terminate this Retailer Agreement without cause at any time by giving the other party 30 calendar day’s written notice.
Termination for Cause by 4ocean. 4ocean may terminate this Retailer Agreement at any time for cause upon written notice of termination to Retailer. Termination for cause shall be effective upon Retailer’s receipt of such notice of termination. The occurrence of any the following events constitutes cause for termination:
(i) any material misrepresentation made by Retailer to 4ocean in seeking appointment as a Retailer or in obtaining credit for purchases from 4ocean;
(ii) the material falsification of a record by Retailer;
(iii) transfer of a controlling ownership interest in Retailer without 4ocean’s prior written consent;
(iv) Retailer’s failure to comply with applicable laws, rules, or regulations pertaining to the sale or service of the Products or the operation of Retailer’s business;
(v) the insolvency of Retailer or inability of Retailer to meet debts as they mature; Retailer’s filing of a voluntary petition in bankruptcy, or the filing of an involuntary petition in bankruptcy against Retailer that has not been discharged within 60 calendar days; appointment of a receiver or trustee for all or a substantial portion of Retailer’s assets; or execution of any assignment by Retailer for the benefit of creditors;
(vi) failure by Retailer to operate in the normal course of business for 10 consecutive business days, or termination of its business;
(vii) closeout or sale of a substantial part of Retailer’s business related to the Products or the commencement of dissolution or liquidation of Retailer;
(viii) participation by Retailer in conduct that is injurious or detrimental to Retailer’s customers, the public welfare, or 4ocean;
(ix) 4ocean finds that sales activity by Retailer falls below the acceptable level to continue as an authorized 4ocean Retailer;
(x) Retailer’s failure to comply with 4ocean’s merchandising requirements as provided by 4ocean from time to time for more than ten (10) days after receiving notice of such non-compliance;
(xi) 4ocean finds that Retailer or personnel of Retailer behave in an unprofessional manner towards a customer, another retailer or 4ocean employee; and
(xii) any other breach by Retailer of this Retailer Agreement (including any breach of any of the General Terms) that is not capable of being cured or that, if capable of being cured, is not cured within 10 calendar days after Retailer’s receipt of written notice of the breach.
Termination by Either Party. Either party may terminate this Retailer Agreement at any time upon 30 calendar days’ prior written notice to the other party.
Effect of Termination or Expiration. Upon termination of this Retailer Agreement:
(a) Any and all balances owed by Retailer to 4ocean that are then outstanding shall become immediately due and payable without further notice or demand, which is hereby expressly waived by Retailer, and 4ocean shall be entitled to reimbursement for any reasonable attorneys’ fees and legal expenses that it may incur in collecting or enforcing payment of such obligations;
(b) Neither party shall be entitled to any compensation or reimbursement for inability to recoup any investment made in connection with performance under this Retailer Agreement, loss of prospective profits or anticipated sales or other losses occasioned by expiration or termination of this Retailer Agreement;
(c) At 4ocean’s sole discretion, 4ocean may, but is not required to, repurchase from Retailer at its original purchase price, free and clear of all liens, claims, and encumbrances, Retailer’s remaining inventory of Products that are in their original packaging and that 4ocean determines is in saleable condition (such repurchase price to be reduced in proportion to any damage to the Product);
(d) Any Products or fixtures bearing 4ocean trademarks that were not provided directly by 4ocean shall be forfeited and returned to 4ocean without compensation.
(e) Retailer shall return all records, books, customer, prospect or price lists, drawings, instruction sheets, advertising and promotional materials, including Fixtures, and all of 4ocean’s supplies of every kind and character, and all other documents relating to the business of 4ocean, which may be in the possession or under the control of Retailer, including without limitation any and all Confidential Information; in addition, upon expiration or termination of this Retailer Agreement, Retailer shall immediately cease any and all use of 4ocean’s intellectual property, including any trademarks, service marks, copyrights, tradenames, trademarked keywords and other proprietary rights in and with respect to 4ocean or the Products that were granted to Retailer in connection with this Retailer Agreement, unless otherwise agreed in writing; and;
(f) The provisions of this Retailer Agreement that by their nature or express terms are intended to survive its expiration or termination (including, without limitation, indemnification and confidentiality provisions), and any and all rights and obligations that arise or are incurred prior to expiration or termination, shall survive expiration or termination of this Retailer Agreement.
- WARRANTY | DISCLAIMER
Retailer shall pass on to its customers, or refer them to, 4ocean’s standard limited warranties for the Products that are in effect as of the date such Products are purchased by the customer (“Product Warranty”), as such Product Warranty may be amended from time to time by 4ocean. A copy of the current Product Warranty in effect may be requested from 4ocean by the Retailer. 4OCEAN HEREBY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES TO RETAILER, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. FOR THE AVOIDANCE OF DOUBT, 4ocean MAKES NO WARRANTY OR REPRESENTATION TO RETAILER WHATSOEVER WITH RESPECT TO THE PRODUCTS. Retailer shall extend to each end-user the applicable Product Warranty and shall not extend or make any other warranty or representation with respect to Products. Retailer shall be responsible for any and all representations, warranties and statements made by Retailer or its employees or agents that were not specifically authorized in writing by 4ocean, and Retailer shall defend, indemnify, and hold harmless 4ocean, its parent, subsidiaries, affiliates, officers, directors, and employees from and against any and all allegations, demands, claims, losses, damages, liabilities, obligations, costs and expenses, including without limitation reasonable attorneys’ fees and legal expenses, arising from or relating in any way to any such representation, warranty, or statement not specifically authorized by 4ocean in writing.
Throughout the Term, at Retailer’s expense, Retailer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by 4ocean from time to time. Retailer shall ensure that 4ocean is named as an additional insured on such insurance policies, and Retailer shall provide 4ocean with certificates of such insurance upon request.
- By 4ocean. 4ocean shall defend, indemnify, and hold harmless Retailer from and against any and all allegations, demands, claims, losses, damages, liabilities, obligations, costs and expenses, including without limitation reasonable attorneys’ fees and legal expenses, incurred by Retailer to the proportionate extent they arise out of or are caused by (a) the negligence or willful misconduct of 4ocean or its employees or agents; (b) 4ocean’s failure to comply with any applicable law, rule, regulation or ordinance or failure to obtain or maintain any permit or license 4ocean is required to hold thereunder; or (c) any infringement of any valid United States patent, trademark, copyright or other intellectual property right by the Products, except to the extent such infringement arises from or relates to any modifications or alterations by Retailer (regardless of whether such modifications or alterations were approved or unapproved by 4ocean).
- By Retailer. Retailer, at its own expense, shall defend, indemnify, and hold harmless 4ocean, its subsidiaries, affiliates, officers, directors, and employees (collectively, the “4ocean Indemnitees”) from and against any and all allegations, demands, claims, losses, damages, liabilities, obligations, costs and expenses, including without limitation reasonable attorneys’ fees and legal expenses, incurred by any of the 4ocean Indemnitees to the proportionate extent they arise out of or are caused by (a) the negligence or willful misconduct of Retailer or its employees or agents; (b) Retailer’s failure to comply with any applicable law, rule, regulation or ordinance or failure to obtain or maintain any permit or license Retailer is required to hold thereunder; (c) a breach by Retailer of this Agreement; (d) any infringement of any United States patent, trademark, copyright or other intellectual property right by the Products to the extent such infringement arises from or relates to specifications provided by Retailer or Retailer modifications or alterations of the Products; (e) any defect or deficiency in any Product that has been subject to a modification or alteration by Retailer; (f) any of Retailer’s advertisements, marketing or promotional materials regarding the Products that are false, misleading, or deceptive; or (g) the Retailer’s premises, setup, or location of Fixtures displaying 4ocean Products.
- All indemnification obligations under this Section shall be subject to the following requirements: (a) the indemnified party shall provide the indemnifying party with prompt written notice of any claim; provided that the failure to provide such notice shall not relieve the other party of its indemnity obligations hereunder unless the indemnifying party shall be actually prejudiced by the failure to timely deliver such notice; (b) the indemnified party shall permit the indemnifying party to assume and control the defense of any action with counsel reasonably acceptable to the indemnified party, upon the indemnifying party’s written acknowledgment of the obligation to indemnify; and (c) the indemnifying party shall not enter into any settlement or compromise of any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. In addition, the indemnified party may, at its own expense, participate in the defense of any claim. In the event that the indemnifying party assumes the defense of any such claim, the indemnifying party shall have no liability for attorney’s fees and costs incurred separately by the indemnified party.
- LIMITATION OF LIABILITY
Notwithstanding anything to the contrary in these General Terms, (a) 4ocean’s liability to Retailer with respect to the Products sold hereunder or any breach hereof shall be limited to the Retailer list price of the affected Products, and (b) 4OCEAN SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER ANY OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO THE PRODUCTS SOLD BY 4OCEAN, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
EXCEPT FOR LIABILITY UNDER THE INDEMNIFICATION PROVISIONS OF THESE GENERAL TERMS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY REPROCUREMENT COSTS, LOST REVENUE OR L O S T PROFITS, OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING OR ARISING FROM THESE GENERAL TERMS, ANY PRODUCT, ANY MATTER RELATING TO THESE GENERAL TERMS, OR ANY PURCHASE ORDER, EVEN IF SUCH PARTY HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.
- CONFIDENTIALITY AND NONDISCLOSURE
The term “Confidential Information” means all inventions, technical information, processes, trade secrets, know-how, designs, formulations, certificates of analysis, specifications, plans, drawings, blueprints, samples, models, prototypes, catalogs, service manuals, data sheets, bulletins, customer lists, sales and marketing programs, price lists, cost data, sales aids (such as videos and recordings) and all other information, whether or not reduced to writing, relating to the design, manufacture, use, marketing, or sale of the Products, as well as any other information relating to the business or finances of 4ocean that (a) may be divulged or made available to Retailer in connection with 4ocean’s performance of these General Terms or any other agreement between 4ocean and Retailer, and (b) is generally not known in the trade. Confidential Information shall not include, however, any information disclosed by 4ocean hereunder that Retailer can demonstrate by clear and convincing documentary evidence is (i) generally available to the public on the date it is disclosed to Retailer or becomes generally available to the public after the date it is disclosed to Retailer (other than as the result of disclosure by Retailer or its employees or agents in violation of this confidentiality obligation), (ii) already known to Retailer and which Retailer had in its possession in written or physical embodiment prior to the disclosure from 4ocean, unless such Confidential Information was previously disclosed by 4ocean to Retailer, or (iii) rightfully received by Retailer in the routine course of business from a third party who acquired such information, and the right to disclose same, from 4ocean. During the Confidentiality Period (as hereinafter defined), Retailer shall hold the Confidential Information in strict confidence, and shall not use any Confidential Information except as required to perform its obligations under any agreement between 4ocean and Retailer, and shall not disclose any Confidential Information to any person or entity except to those of its employees who have a definable need to know the same in order to allow Retailer to perform its obligations under an agreement between it and 4ocean, and who are bound by substantially similar confidentiality obligations. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Retailer and ending on the later of the date such Confidential Information is no longer a trade secret under applicable law; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Retailer and ending three (3) years after the expiration or termination of the applicable agreement between 4ocean and Retailer. Retailer acknowledges that it may provide 4ocean with comments, suggestions, statements, or other feedback (“Feedback”) on 4ocean’s Product offerings and other materials. Retailer agrees that any and all Feedback is given completely voluntarily with no expectation of confidentiality, and all ideas, improvements, and discoveries that 4ocean may derive from Feedback are and shall remain the sole and exclusive property of 4ocean. Retailer hereby conveys and assigns to 4ocean, all of Retailer’s right, title, and interest in such Feedback, ideas, improvements, and discoveries. Retailer agrees not to copy, disassemble, decompile or otherwise reverse-engineer any prototypes or other Confidential Information.
- PERFORMANCE | NO WAIVER
4ocean reserves the right to discontinue servicing any Retailer or Retailer Locations that do not abide by these General Terms. In the event 4ocean does not insist on strict performance of any of these General Terms, such shall not be deemed a waiver of the rights or remedies that 4ocean shall have to insist upon strict performance of any of these General Terms in the future. 4ocean reserves the right to update and revise these General Terms from time to time without notice to Retailer.
- GOVERNING LAW | JURISDICTION
These General Terms and each contract between 4ocean and Retailer shall be enforced and construed in accordance with the laws of the State of Florida, without regard to any conflicts of law principles in the State of Florida that would require application of any other law. Venue and jurisdiction for any action based upon any dispute between 4ocean and Retailer or violation or enforcement of any term herein shall be exclusively in Palm Beach County, Florida. 4OCEAN AND RETAILER AGREE THAT THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY.
- DISPUTE RESOLUTION
- Good Faith Negotiation. The shared objective of 4ocean and Retailer is to resolve all disputes of any nature that may arise between them as amicably and efficiently as possible, and neither 4ocean nor Retailer will unreasonably delay the resolution of a dispute. A dispute arises when there is a cause of action or claim for relief that either 4ocean or Retailer could have asserted in court but for the agreement to arbitrate. Within thirty (30) calendar days after a dispute arises, executives from each of 4ocean and Retailer who have the authority to resolve the dispute will meet face to face at a mutually agreeable location, and attempt in good faith to resolve the dispute.
- Mediation. If these executives are unable to resolve the dispute, either 4ocean or Retailer may request that the dispute be submitted to mediation within thirty (30) calendar days after the face to face meeting (or, if the meeting does not take place, within thirty (30) calendar days following the 30-day period). The mediation will be conducted in Palm Beach County, Florida, and may be attended remotely, and will be administered by the American Arbitration Association under its Commercial Mediation Procedures within thirty (30) calendar days after submission by a party. Each of 4ocean and Retailer will be represented at the mediation by at least one senior executive with sufficient authority to resolve the dispute. 4ocean and Retailer will each bear their own costs and expenses incurred in connection with the mediation proceeding and will each pay one-half of the costs and expenses of the mediation.
- Arbitration. Any and all disputes not resolved between 4ocean and Retailer themselves or through mediation, will promptly be submitted to binding arbitration in Palm Beach County, Florida, before a single neutral arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), except as modified in these General Terms. Either 4ocean or Retailer or both may submit the dispute to the AAA. If no demand for arbitration is received by the AAA within twelve (12) months from the date the dispute first arose, all claims of 4ocean and/or Retailer arising from or relating to that dispute will be forever barred. Arbitration under this Agreement will be in lieu of all other remedies and procedures available to 4ocean and Retailer, provided that either 4ocean or Retailer may seek specific performance, injunctive or other interlocutory relief prior to the commencement of or during the arbitration proceeding. This section will not prevent either 4ocean or Retailer from joining, or bringing a claim against, the other party in a products liability action. If a party refuses to participate in an arbitration proceeding as required, the other party may petition any court having proper jurisdiction for an order directing the refusing party to participate in the arbitration proceeding. All costs and expenses incurred by the petitioning party in enforcing the terms of these General Terms or any other contract between the parties will be paid by the refusing party. The arbitration proceeding will be confidential between the parties. The arbitrator’s determination will be binding and conclusive and the arbitration award may be confirmed in any court having proper jurisdiction. Subject to this section, 4ocean and Retailer will bear their own costs and expenses incurred in connection with the arbitration proceeding and each party will pay one-half of the costs and expenses of the arbitration. Notwithstanding the foregoing, the prevailing party (as determined by the arbitrator), shall be entitled to receive from the other party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with the arbitration. Such entitlement and amount should be included in the arbitrator’s decision or a subsequent decision, as necessary, to address costs and expenses, including reasonable attorneys’ fees. Any payments or reimbursements required by the decision of the arbitrator will be made within thirty (30) calendar days following the decision.
- INJUNCTIVE RELIEF
Retailer’s obligations under these General Terms and any other contract between Retailer and 4ocean are of a unique character that gives them particular value. Retailer’s breach of Sections 7 (Trademarks | Marketing Materials | Modifications), 8 (e-Commerce | Online Sales), 9 (Resale | Transfer of Products), and/or 19 (Confidentiality) shall result in irreparable and continuing damage to 4ocean for which there is no adequate remedy at law; and, in the event of such breach, 4ocean shall be entitled to injunctive relief and/or a decree for specific performance without posting of a bond, proof of damages, or other similar requirements, and such other and further relief as may be proper (including monetary damages if appropriate).
In the event a court of competent jurisdiction determines any one or more of the provisions contained in these General Terms or any other contract between 4ocean and Retailer to be invalid, illegal or unenforceable, these General Terms and any other such contract shall be construed so that the remaining provisions shall not in any way be affected thereby but shall remain in full force and effect, and any such invalid, illegal or unenforceable provision(s) shall be deemed, without further action by any person or entity, to be modified and/or limited to the minimum extent necessary to render the same valid and enforceable in such jurisdiction.
Retailer is an independent contractor, not an agent, partner, or employee of 4ocean, and these General Terms shall not be deemed to create a partnership, joint venture, or principal-agent relationship between the parties. Retailer is not authorized to assume or create any obligation or responsibility, including but not limited to obligations based on warranties or guarantees or other contractual obligations, on behalf or in the name of 4ocean. Retailer shall not misrepresent its status or authority and shall be solely responsible for all of its own expenses, employees, agents, actions, and omissions.
Any notice required or permitted to be given hereunder shall be in writing and shall be sent via certified mail, return receipt requested and postage prepaid, or sent by electronic medium to the address of the Retailer as provided to 4ocean or such other address as each Party shall have specified most recently by written notice, or via reputable overnight courier, to the address of the Party to be notified. Notices to 4ocean shall be provided to: 4ocean PBC, 3600 FAU Blvd, Boca Raton, Florida 33431 Attn: Wholesale; Email: firstname.lastname@example.org.
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United States, Costa Rica, Japan, Indonesia, Great Britain and Northern Ireland, Haiti, Norway, Australia, the EU, Canada, Switzerland, Norway and the United Kingdom ®
PULL A POUND
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