This agreement is between Synche Enterprises, LLC, by and through (”SYNCHE”) and the reseller named above (”Reseller”) and establishes the terms and conditions for Reseller’s participation in the SYNCHE Product Reseller Program (the “Program”). Under the Program, SYNCHE will provide marketing and promotional support to Reseller as specified in this Agreement related to Reseller’s purchase and license of SYNCHE products for resale.
1.1 Reseller is an independent contractor engaged in purchasing SYNCHE products for resale to its customers. Reseller is not an agent or legal representative of SYNCHE for any purpose, and has no authority to act for, bind or commit SYNCHE.
1.2 Reseller has no authority to make any commitment on behalf of SYNCHE with respect to quantities, delivery, modifi- cations, or suitability in specific applications. Reseller has no authority to modify the warranty offered with SYNCHE products. Reseller will indemnify SYNCHE from liability for any modified warranty or other commitment by Reseller not specifically authorized by SYNCHE.
1.3 Reseller will not represent itself in any way that implies Reseller is an agent or branch of SYNCHE. Reseller will imme- diately change or discontinue any representation or business practice found to be misleading or deceptive by SYNCHE immediately upon notice from SYNCHE.
2. Term, Limitations, Termination
2.1 The term of this Agreement is twelve (12) months from the date of acceptance by Reseller and SYNCHE. This Agree- ment shall automatically renew on each subsequent year for a one-year term, unless it is terminated earlier in accordance with this Agreement.
2.2 SYNCHE or Reseller may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.
2.3 SYNCHE may, from time to time, give Reseller written notice of amendments to this Agreement. Any such amend- ment will automatically become a part of this Agreement thirty (30) days from the date of the notice, unless otherwise specified in the notice.
2.4 Upon expiration, non-renewal or termination of this Agreement, all interests in accrued marketing funds (if any) will automatically lapse.
3. Reseller Programs
3.1 Reseller shall exert best efforts to market SYNCHE products, and shall use all promotional materials supplied by SYNCHE.
3.2 SYNCHE does not represent that it will continue to manufacture any particular item or model of product indefinitely or even for any specific period. SYNCHE specifically reserves the right to modify any of the specifications or characteristics of its products, to remove any product from the market, and/or to cease manufacturing or supporting it.
3.3 Reseller is expected and encouraged to advertise and promote the sales of SYNCHE products through all appropriate media including trade shows exhibits, catalogs and direct mailings, space advertising, educational meetings, sales aids, etc. SYNCHE must approve all such materials that use SYNCHE’s name or trademarks. SYNCHE will assist Reseller in advertising and promoting SYNCHE products in accordance with SYNCHE’s policy.
4. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL SYNCHE BE LIABLE TO RESELLER OR ANY OTHER PARTY FOR ANY REPROCUREMENT COSTS, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SYNCHE HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.
5. Use of SYNCHE Trademarks
5.1 Reseller acknowledges the following:
5.1.a SYNCHE owns all right, title, and interest in the Mojo, Effin Clean, Tap Dat Ash, ROX, Toob Loob and Synche names and logotypes.
5.1.b SYNCHE is the owner of certain other trademarks and tradenames used in connection with certain product lines.
5.1.c Reseller will acquire no interest in any such trademarks or tradenames by virtue of this Agreement, its activities under it, or any relationship with SYNCHE.
5.2 During the term of this Agreement, Reseller may indicate to the trade and to the public that it is an Authorized Reseller of SYNCHE products. With SYNCHE’s prior written approval, Reseller may also use the SYNCHE trademarks and tradenames to promote or solicit sales or licensing of SYNCHE products if done so in strict accordance with SYNCHE’s guidelines. Reseller will not adopt or use such trademarks and tradenames, or any confusing word or symbol, as part of its SYNCHE name or allow such marks or names to be used by others.
5.3 At the expiration or termination of this Agreement, Reseller shall immediately discontinue any use of the product and SYNCHE names or trademarks or tradenames or any other combination of words, designs, trademarks or tradenames that would indicate that it is or was a reseller of the SYNCHE products.
6. Product Warranty
6.1 The warranty terms and conditions will be as specified in the PRODUCT Standard Terms and Conditions of Sale.
6.2 SYNCHE’S WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Proprietary Information
7.1 SYNCHE and Reseller shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither party shall use such information without permission of the party that furnished it. As used in this paragraph, “due diligence” means the same precaution and standard of care which that party uses to safeguard its own proprietary data, but in no event less than reasonable care. The provisions of this Section shall survive for five (5) years beyond the expiration, non-renewal or termination of this Agreement.
7.2 This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to SYNCHE. Reseller shall not have any right to manufacture SYNCHE products.
8. Compliance with Laws
Reseller agrees to comply with all laws and regulations that are applicable to the business that Reseller transacts. Reseller agrees to indemnify and hold SYNCHE harmless for all liability or damages caused by Reseller’s failure to comply with the terms of this provision.
Notices under this Agreement must be sent by telegram, telecopy or registered or certified mail to the appropriate party at its address stated on the first page of this Agreement (or to a new address if the other has been properly notified of the change). A notice will not be effective until the addressee actually receives it. This Agreement and its schedules represent the entire agreement between the parties regarding this subject. This Agreement supersedes all previous oral or written communications between the parties regarding the subject, and it may not be modified or waived except in writing and signed by an officer or other authorized representative of each party. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control. If any provision is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of this Agreement. Louisiana’s law governs this Agreement without consideration to that body of law referred to as “conflicts of laws”. SYNCHE and Reseller will attempt to settle any claim or controversy arising out of it through consultation and negotiation in good faith and a spirit of mutual cooperation. Any dispute which cannot be resolved through negotiation or mediation may be submitted to the courts of appropriate jurisdiction.