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Terms and Conditions - Retail Agreement

MEMOBOTTLE RESELLER TERMS & CONDITIONS PRICING: All prices are wholesale and for the domestic and international  trade.MINIMUM ADVERTISED PRICE REQUIREMENT: The Reseller is required to maintain MRP in all advertising, print, web and media exposure. Refer to the wholesale information document for MRP across the product range.NEW ACCOUNTS: memobottles must be ordered in case quantities of six (6), and lid packs in case quantities of twenty-four (24). A completed retailer application must be submitted through (https://www.memobottle.com.au/pages/wholesale). New accounts will be opened at memobottle Pty Ltd’s sole discretion based upon market conditions and other factors deemed relevant by memobottle Pty Ltd. Each individual resale location must be approved by memobottle Pty Ltd. Please allow up to 2 weeks for a reply; response time may vary seasonally.ESTABLISHED ACCOUNTS: memobottles must be ordered in case quantities of six (6), and lid packs in case quantities of twenty-four (24).CUSTOM ORDERS: memobottle Pty Ltd reserves the right to approve or deny any customization to memobottles, which includes but is not limited to, printed logos and custom lids. All custom orders are managed by memobottle. For more information contact sales.memobottle@theflank.com.PAYMENT TYPE: Unless expressly indicated to the contrary, all amounts set forth in this Agreement, or any Exhibit, are to be paid in the invoiced currency, and all payments shall be made to Memobottle in by bank wire transfer, credit card or PayPal transfer to an account designated by Memobottle.PAYMENT TERMS: The Reseller is required to pay 50% of the product order at the date of Purchase Order.  The remaining 50% of Product order balance is due and payable upon Invoice date. memobottle Pty Ltd reserves the right, at any time, to suspend or change credit terms on overdue accounts. Failure to pay invoices when due will enforce immediate payment of  all subsequent invoices irrespective of terms. Additionally, memobottle Pty Ltd may withhold all subsequent deliveries until all accounts are settled in full. For any invoice inquiries and requests contact sales.membottle@theflank.com.ORDER PROCESSING TIME: For orders in stock, processing time is 5-10 business days. Changes to an order must be made within 24 hours of the order being submitted. Any changes requested after 24 hours are at the sole discretion of memobottle Pty Ltd. BACKORDERS: If an item is not in stock, it will be placed on backorder and be processed  automatically when restocked. The Reseller is responsible for canceling backorders if the item is no longer required. Refused merchandise will incur freight and/or storage charges in addition to a 10% restocking fee.SHIPPING: Economy shipping costs are inbuilt within our per unit pricing.  If express or any other shipping is required, an additional charge will be added to the invoice to the amount of the cost differential. Where customs/import fees are applicable, these will be paid by the Reseller. Any special shipping instructions or guidelines must be provided when the order is placed. memobottle shall be responsible for filing damage claims with the carrier if the goods are damaged in transit.NON-COMPETITION: The Reseller agrees not to manufacture, purchase, distribute, advertise, promote, display offer for sale, or sell any bottle that competes with, is an imitation of, or is otherwise confusingly similar to, any memobottle while the Reseller maintains an active account with memobottle or otherwise advertises, promotes, offers for sale, or sells memobottles.ORDERS & RESALES: All orders are subject to the acceptance of memobottle Pty Ltd. memobottles may only be sold at locations approved in writing by memobottle. memobottles maybe sold only to consumers and not third party distributors, unauthorized retail dealers or unauthorized locations. The business relationship between memobottle Pty Ltd and each reseller is "AT WILL"; that is, memobottle Pty Ltd is free at any time to choose those with whom it wishes to deal. Moreover, both memobottle Pty Ltd and the Reseller have the right at any time to terminate the relationship for any reason whatsoever.

RESELLER AGREEMENT: This Reseller Agreement (the "Agreement"), effective as of the Effective Date (as defined by the date of this application), is entered into by and between Memobottle Pty Ltd. a company incorporated in Australia, having a principal place of business at PO Box 2069 Prahran VIC, Australia 3181 ("Memobottle"), and THE RESELLER (each a "Party" collectively the "Parties").RECITALS: Memobottle Pty Ltd ("Memobottle"), an Australian company, has developed and produced the “memobottle™” in various sizes and accessories; all under the “memobottle™” brand.  

1. DEFINITIONS "Affiliate" shall mean any entity which controls, is controlled by or is under common control with a Party, for so long as such control exists. For purposes of this definition, "control" means beneficial ownership of more than fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, the corresponding managing body).“The Reseller” shall mean the party agreeing to this document and thereby acknowledging all requirements and conditions within.  "Confidential Information" shall have the meaning set forth in Section 8.1"Customer" shall mean an end user customer that purchases the Product from Memobottle, or the Reseller in accordance with the terms of this Agreement for its own internal use only and not for resell or distribution."Customer Data" shall mean all data and information concerning any Customers, and/or their use of the Product, collected by Memobottle, or the Reseller"Effective Date" means the effective commencement date of this agreement, marked to be the date of approval of this document."Marketing Plan" shall have the meaning set forth in Section 2 and within the requirements of Exhibit 1.2 of this agreement."Product" shall mean the “memobottle™” itself, as well as internal packaging components (Booklet, stickers etc), packaging and memobottle™ branded accessories (memocleaner, sleeves etc)."Sell," "Sale" and similar words shall mean to enter into an agreement with a Customer to provide the Product."Territory" shall mean the country/region of The Reseller.“The End Term” (Term) of this agreement is effective from the Effective Date, until 30 June 2018.“Termination Date” means the date when, in the event of termination for cause, the agreement is terminated via written communication by either of the parties to the agreement.“Shipping Sleeve” shall mean the cardboard outer layer that slides over the individual Product packaging.  This sleeve is used to protect the Product from shipping and transit damage, and to provide space for shipping labels.“Inner Carton” shall mean the inside carton within a master carton.  All inner cartons will contain six (6) units of the Product.“Master Carton” shall mean the outer carton containing the inner carton.  All Master Cartons contain forty-eight (48) units of the Product. 2. MARKETING AND SALES2.1        Appointment.    Subject to the terms and conditions of this Agreement, Memobottle hereby appoints The Reseller as a non-exclusive Reseller of the Product with the right to Sell the Product in the Territory, directly to customers.2.2        Marketing of the Product.All marketing of the Product must be within the guidelines provided within Exhibit 1.2 within this agreement.  The Reseller can use internally developed material for marketing and advertising on Social Media platforms only.  All Product related content on the Reseller’s website and retail locations must be official “memobottle™” material obtained from Memobottle.  Refer to Exhibit 1.2 for the source of Product related advertising and marketing material. Any deviation from these requirements may result in immediate termination of the agreement by Memobottle via written communication.2.3        Inquiries and Support.All Product and Memobottle business related queries are to be referred directly to Memobottle via the below.  The Reseller shall not assume responsibility or decision making for any queries.All inquiries should be directed to:General and Product related inquiries – info.memobottle@theflank.comSales inquiries – sales.memobottle@theflank.com2.4    Trademark Infringement.    The Reseller shall notify Memobottle promptly upon learning of any actual, alleged, or threatened infringement of a Memobottle (“memobottle™”) Trademark or Memobottle Trademark or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods, or similar offenses. Failure to notify Memobottle may result in termination of the agreement by Memobottle via written communication.2.5        No Other Rights. The Reseller has no right to act on behalf of Memobottle nor do they have any rights or entitlement to the Product or Memobottle. The relationship between Memobottle and the Reseller is non-exclusive, and nothing shall be construed to prevent or limit Memobottle’s right to appoint other non-exclusive resellers to engage in the direct and indirect distribution and sale of the Product in the Territory, including to Customers and through Authorized Resellers and other resellers. Any unauthorized use or exploitation by a Party of Memobottle’s patents, copyrights, trade secrets, or other intellectual property or proprietary rights shall be considered a material breach of this Agreement by such Party may result in legal action.

3. PRICES3.1        Product Prices.    The prices paid by the Reseller to Memobottle for the Product shall be in accordance with memobottles wholesale prices provided at the time of acceptance. *Note: all prices above includes door-to-door freight to the Resellers location (excluding taxes and duties – see 3.3 below). 3.2        Minimum Order Quantity (MOQ): The following minimum order quantities are required for each product order:·      A6: 12 units^·      A5: 12 units^^Note: Each master carton contains 48 units.  All order must be in multiples of 6 (full inners)3.3        Taxes and Government charges.The prices do not include any taxes (including any excise, sales, use, value added, withholding, or similar taxes), customs duties, tariffs or other government fees, and amounts payable.  The Reseller will be responsible for payable any applicable taxes, duties, tariffs or fees upon receipt of the shipment from Memobottle to their relevant country/jurisdiction. The amounts payable to Memobottle as described in this Agreement shall not be reduced by any taxes, duties or other governmental fees.3.4        Freight costs and shipping terms.Freight will be organized by Memobottle for all Product orders through Memobottle’s preferred freight provider.  Freight costs are included within the Product price as per 3.1 above.  Freight timing from point of Shipment (Taipei, or nearest warehouse) to the end location shall be no longer than 10 business days from the communicated date of shipment.  Shipping terms, when provided through Memobottles preferred freight forwarder will be FOB destination.   4. USE OF PRODUCT4.1        Not a Representative.    By signing this agreement, the Reseller acknowledges that they are not a representative of Memobottle, or the Product.  The Reseller cannot expressly state, or elude to be an employee, representative, or agent of Memobottle or for the Product.  This agreement provides the Reseller the right to Sell the Product as an external party to Memobottle.4.2        Alterations to the Product.The Reseller cannot alter the form, shape, components or inclusions of the Product in any way, nor can it manufacture any memobottle products. The Product must be sold to the end customer in the form provided by Memobottle upon shipment, with the exception of the Products Shipping Sleeve, Inner carton, and Master Carton which can be removed by the Distributor upon receipt of the shipment. By signing this agreement, the Reseller agrees they will not be selling any fake or replica products that claim to be the Product produced by Memobottle or memobottle.4.3        Evidence of Official Reseller/Distributor.This agreement acts as evidence of Resell approval by Memobottle of the Product for the term of this agreement.   5. PAYMENT5.1        Payment Terms.   Unless expressly indicated to the contrary, all amounts set forth in this Agreement are to be paid in the invoiced currency, and all payments shall be made to Memobottle in by bank wire transfer, credit card or PayPal transfer to an account designated by Memobottle.5. 2   The Reseller is required to pay 50% of the product order at the date of Purchase Order.  The remaining 50% of Product order balance is due and payable upon Invoice date. Memobottle maintains the right to hold the shipments to the Reseller until payment has been received in full by Memobottle.  Shipment of the order will not be initiated until full payment has been received.5.3        Audit and Inspection Rights.    Memobottle has the right to visit the Reseller site for inspection at any time throughout the contract period to ensure the Reseller is operating under the conditions specified in this agreement.  Any deviation by the Reseller from conditions specified in this contract may result in immediate contract termination. 6. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS6.1       "Confidential Information" means information disclosed by a Party in connection with this Agreement which if disclosed in tangible form is marked "Confidential" or with other similar designation to indicate its confidential or proprietary nature. The Parties agree that the receiving Party shall not publish or otherwise disclose, and shall not use for any purpose, any Confidential Information furnished to it by the other Memobottle pursuant to this Agreement, except for information that:6.1.1    was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure;6.1.2    was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;6.1.3    was subsequently lawfully disclosed to the receiving Party other than directly or indirectly from the disclosing Party and not under an obligation of confidentiality.6.2        Confidentiality of Agreement.  Each Party shall treat the terms and conditions of this Agreement as the Confidential Information of the other. 7. TERM AND TERMINATION7.1        Term.  This Agreement shall commence upon the Effective Date and continue in full force and effect until the End Term (the "Term"), unless earlier terminated in accordance with the terms of this Agreement. At the end of the contract term, or in the event of contract Termination, the Reseller acknowledges that they will discontinue the selling, and marketing of the Product or Product related material, and cannot claim to be affiliated with Memobottle, or the Product.   7.2        Termination for Cause.  In the event of a material breach of this Agreement, the non-breaching Party shall be entitled to terminate this Agreement immediately by written notice to the breaching Party.7.3        No Release.    Termination or expiration of this Agreement for any reason shall not release either Party hereto from any liability, which at the time of such termination or expiration has already accrued to the other Party. Without limiting the foregoing, no payment that became payable prior to termination or expiration of this Agreement shall be affected by such termination or expiration of the Agreement. Rather, such payments shall remain payable after termination or expiration in accordance with the terms and conditions of this Agreement that were in effect immediately prior to the date of termination or expiration.7.4        No Liability.    Termination of this Agreement for any reason shall not constitute a waiver or release of any rights, remedies or claims, whether for damages or otherwise, which a Party may have hereunder, at law, equity or otherwise, as a result of a breach of this Agreement. Additionally, the termination of this agreement does not waiver the Reseller’s responsibility in regards to confidential information.7.5        Purchase Orders; No Waiver.  The Reseller shall be obligated to accept, and pay for, Product for which Product orders were issued were issued prior to the Termination Date or expiration of this Agreement.. The acceptance of any order from or the provision of any Product after the termination or expiration of this Agreement shall not be construed as a renewal or extension of this Agreement nor as a waiver of termination of this Agreement.