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TOP IT OFF! NEW SKINNY MIXES, LLC (“BRAND”) hereby adopts this Reseller Brand Protection Policy (“Policy”) in order to protect its intellectual property, prevent consumer confusion, and ensure the integrity of its supply chain.
This Policy applies to each person or entity (as applicable, hereby a “Reseller” or “you” or “your”) that purchases BRAND products (the “Products”) for resale or other distribution and is incorporated into any current or future agreement between BRAND and Reseller for the purchase/sale of Products. In the event of a conflict between the applicable agreement with a Reseller and this Policy, the terms of the agreement will control. BRAND reserves the right to modify these terms and conditions at any time in its sole discretion.
Please read this Policy carefully before agreeing to become a BRAND Reseller. By purchasing Products, you agree to be legally bound by the Policy. If you do not wish to be bound by this Policy, then you expressly agree that you may not resell Products.
Any Reseller that fails to comply with this Policy will be deemed an unauthorized reseller of the Products and therefore shall have no right to: (i) sell the Products, (ii) use BRAND’s name and intellectual property, or (iii) offer BRAND’s consumer warranty applicable to any of the Products. If a Reseller is found to be in violation of this Policy, BRAND reserves the right to take any and all appropriate legal action to protect its brand, consumer satisfaction, and the integrity of its supply chain, including but not limited to: (i) refusing to accept orders from or ship Products to such Reseller, (ii) seeking monetary damages or injunctive relief, or (iii) notifying the marketplaces in which such Reseller is engaging in unauthorized conduct, as applicable.
By effect of this Policy, Resellers hereby acknowledge that any unauthorized or improper use of BRAND’s company name, trademarks, copyrights and other BRAND intellectual property (“Intellectual Property”) may constitute infringement and unfair competition in violation of federal, state, and international laws, and entitles BRAND to any available remedies, including injunctive relief. BRAND reserves the right to prohibit any use of its Intellectual Property that it deems unlawful or improper, even if such use is not expressly prohibited hereunder.
Reseller agrees to the following guidelines:
1. Trademark Guidelines.
A. Resellers that comply with this Policy have a limited, non-exclusive, non-sublicensable, revocable license to use BRAND trademarks (but not logos or taglines) solely to identify Products and only in connection with the sale of the Products. BRAND may revoke this license for any or no reason. As part of this limited license, Resellers may use the BRAND name to describe their business by using the phrase: "We sell BRAND products," provided that the statement is true. Reseller must lead with its own brand and cannot lead with the BRAND name. Reseller is not permitted to use the BRAND name and trademarks in a manner that would lead consumers to believe that Reseller has an association or affiliation with BRAND that exceeds that of being an authorized reseller of the Products.
B. Reseller will not use BRAND logos, taglines or designs unless authorized by BRAND in writing.
C. Reseller acknowledges the ownership and validity of BRAND Intellectual Property, and shall not modify any BRAND trademark or copyright or include BRAND trademarks as part of its company name, product, service, or domain name. Reseller shall not do anything, or aid others to do anything to negatively impact such trademark or their goodwill, or impair their value in any manner.
D. Reseller shall not use (i) any names or trademarks that may be deemed confusingly similar to any BRAND trademark or (ii) BRAND trademarks in any manner that directly or indirectly implies BRAND sponsorship, affiliation, certification, approval, or endorsement of Reseller or its products.
E. Reseller shall include the following trademark attribution statement when it uses BRAND trademarks as permitted by the limited license hereby: “[List of marks used] are trademarks of BRAND.”
F. Reseller shall sell Products in their original packaging as provided by BRAND. Relabeling, repackaging (including the separation of bundled Products or the bundling of Products), and other alterations to Products or their packaging (including, without limitation, serial numbers, UPC codes, or other identifying information) are not permitted. Reseller may not remove, modify, substitute or add to, any portion of the original packaging or accompanying materials on and/or inside the packaging, including without limitation, labels, specifications, literature, descriptions, images, advertising, warranties, warnings, intellectual property notices or markings, and/or any other content included in or from the Products’ original packaging, or related to the Products. Any modification of these items will constitute breach of the Policy, reseller agreement and void the BRAND warranty (if any).
2. Copyrights.
Use of BRAND’s copyrighted material requires BRAND’s prior written approval. Such materials include, but are not limited to, content and text displayed on BRAND’s website, or other documentation, photographs, images, and sound clips. If authorized, Reseller’s use of BRAND’s copyrighted material must be accompanied by BRAND’s copyright notice.
3. Supply Chain.
Resellers may purchase BRAND Products only from BRAND, or from an authorized distributor identified by BRAND (an “Authorized Distributor”, Resellers together with Authorized Distributors, collectively the “Authorized Supply Chain”). Products purchased outside the Authorized Supply Chain will void any warranty that BRAND might offer.
4. Online Marketplaces.
Reseller may not advertise or sell the Products on the third-party online marketplaces listed in Addendum 1 to this Policy. Reseller may not otherwise advertise or sell the Products on any third-party online marketplace or to any distributors or resellers for further sale or distribution on any third-party online marketplace without BRAND’s advance written consent.
5. Quality Control; Tracking; Handling.
Reseller shall respect, follow and abide by any BRAND directions as to the quality of the Products, use of the BRAND Trademarks, the Products packaging, related promotional materials, and the Products storage and handling. Reseller shall act with and keep the same level of quality BRAND reserves to its Products. Reseller must handle and store the Products in compliance with BRAND’s storage and handling policies below.
Reseller agrees to track the purchased Products and store them at safe locations in compliance with this Policy. At BRAND’s reasonable request in its sole discretion, Reseller shall provide BRAND with the storage locations and inventory of purchased Products and provide physical access for BRAND to inspect the Products and perform an inventory.
6. Recall and Consumer Safety.
Promptly upon receipt of the Products, Reseller shall inspect the Products for damage, defects, evidence of tampering, or safety. If any irregularity, Reseller shall isolate the irregular Products, refrain from any offer for sale or sale of the Products and report the issue to BRAND. Reseller shall cooperate with BRAND to ensure consumer safety and process any Product recall, and shall seek BRAND’s written approval before any related dissemination of information to the public and competent authorities.
7. Sales to End Consumers Only.
Resellers may sell Products only to end consumers in the territory identified in a Reseller’s BRAND agreement. As provided in Addendum 1 to this Policy, Resellers may not sell or otherwise distribute products to any business-to-business account, freight forwarder, retailer, drop-shipper, or third party which will further resell the Products.
8. Compliance with MAP.
Reseller is required to comply with BRAND’s Minimum Advertised Price (“MAP”) Policy [link].
9. Cooperation; Unauthorized Resellers.
Reseller shall promptly report to BRAND if Reseller has information or suspicion that any person or entity is purchasing and reselling/distributing Products in a manner not authorized by BRAND or in violation of this Policy. If BRAND detects and notifies Reseller of violations by Reseller or a third-party marketplace, Reseller must immediately take steps to cease any sale and remove any offer for sale of the Products from the unauthorized venue, and cooperate as reasonably requested by BRAND to obtain and provide to BRAND an accounting of sales, pending orders and inventory of the Products. BRAND has sole discretion as to whether to suspend temporarily Reseller’s account or terminate it permanently, without compensation.
10. Grey Market Sales.
To the extent permitted by applicable law, Reseller shall use, and shall cause others in privity or concert with Reseller to use, commercially reasonable efforts to prevent the unauthorized resale or distribution of Products outside its territory or the reimportation of unauthorized Products by third-parties into the Reseller’s territory from outside, including without limitation Reseller shall: (a) not endorse, authorize, support or otherwise facilitate such unauthorized sales or distribution of the Products; and (b) if requested by BRAND, (i) issue public statements pre-approved in writing by BRAND to inform consumers of the violations; and (ii) promptly investigate and cooperate with BRAND’s enforcement actions and remedies to abate and redress the unauthorized sales.
11. EXCEPT AS OTHERWISE PROVIDED HEREIN, BRAND EXPRESSLY EXCLUDES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
Reseller acknowledges that it has had an opportunity to inspect the Products and is satisfied therewith.
