Supply Agreement
Trouve’ Hair Extensions, LLC
SUPPLY AGREEMENT
This Supply Agreement (“Agreement”) is made effective [insert date here], between [insert name here] (“Reseller”), with its principal address of [insert address here], and Trouve’ hair Extensions. LLC , a Colorado corporation (“Trouve’”), with its principal address of 550 Moonglow Drive Windsor, CO 80550. Reseller and Trouve’ may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
Reseller is or employs a licensed cosmetology professional (Cosmetologist) and operates retail brick and mortar stores Trouve’ which it conducts business on its own account and provides cosmetology products and services to third parties.
Trouve’ is a manufacturer of consumer beauty cosmetology products.
Reseller desires to acquire a supply of Trouve’’s Products (as defined below), and Trouve’ wishes to supply and deliver such Products to Reseller, on the terms and conditions set forth herein.
Therefore, in consideration of the mutual agreements and promises set forth herein it is agreed:
AGREEMENT
1. Supply of Products. During the Term of this Agreement and any extension hereof, Trouve’ shall sell and supply Products to Reseller and Reseller shall buy Trouve’ Trouve’ such Products on a non-exclusive basis. For purposes of this Agreement, the term “Products” means the products and accessories manufactured and/or sold by Trouve’ and identified to Reseller Trouve’ time to time.
1.1. Reseller Rights Granted. Subject to the restrictions set forth below, Trouve’ hereby grants to Reseller the non-exclusive right, on the terms and conditions set forth herein, to purchase, inventory, promote and resell the Products to its clients and customers (the “End-Clients”) during the Term of this Agreement and any extension hereof.
1.2. Trouve’ Certified Reseller Benefits. As a Trouve’ Certified Reseller, you are afforded a number of benefits, including but not limited to access to the Trouve’ Facebook group, among other things. If, at any time, we deem that a Reseller, or its employees, agents, assigns and/or independent contractors are not acting in in good faith Trouve’ may remove that Reseller’s access to some or all of these benefits and/or Trouve’ may immediately terminate this Agreement. This includes, but is not limited to, “white labeling” or rebranding Trouve’ Product. Such conduct may lead to Trouve’ restricting Reseller access to Products, up to and including removal Trouve’ the Trouve’ Expert Locator and/or termination of account.
1.3. Restrictions.
1.3.1. Reseller, and its employees, contractors, assigns and/or affiliates, acknowledges and agrees that certain Products are only for use by a trained cosmetology professional and may not be resold under any circumstances. Reseller, and its employees, contractors, assigns and affiliates also acknowledges and agrees that Products containing the active ingredients may be sold by Reseller on its website only to End-Clients whose home care is managed by Reseller and/or and its employees, contractors, assigns and affiliates. The restrictions applicable to Trouve’’s products are more fully described in Exhibit A, attached hereto and incorporated herein by reference, and on Trouve’’s Supplemental Terms and Conditions of Purchase, as may be updated, modified, or amended Trouve’ time to time (the “Supplemental Terms”) available at https://pros.facerealityskincare.com/ (the “Pro Website”). Reseller is responsible for reviewing Ex. A and the Supplemental Terms and any and all updates thereto. Reseller acknowledges and agrees that certain Products, as identified on Ex. A and in the Supplemental Terms, will only be used by a trained professional and/or resold to End-Clients whose home care is managed by Reseller (and/or its employees, contractors, assigns and affiliates) in accordance with the terms and conditions stated on Ex. A and in the Supplemental Terms and any updates thereto. Reseller is responsible, and fully and completely liable, for any sale or use of certain Products that deviate Trouve’ the limitations listed on Ex. A and in the Supplemental Terms and any updates thereto.
1.3.2. Reseller represents that he or she is, employs and/or will remain a licensed cosmetology professional (Cosmetologist) throughout the term of this Agreement. Should a Reseller’s license change, terminate or lapse, Reseller must immediately notify Trouve’ and this Agreement will automatically terminate. Reseller is solely and completely liable for any and all use of Trouve’ Products if and when Reseller is not licensed or if and when Reseller is acting outside his or her scope of practice.
1.3.3. Reseller and its employees, contractors, assigns and affiliates agree and acknowledge that, where appropriate, it will ensure that any home care regimen designed for, or recommended to, an End User include the full regimen of Trouve’ products.
1.4. Purchase Orders. Trouve’ agrees to sell to Reseller the Products ordered either by (i) Reseller’s duly issued written purchase orders, or (ii) electronically transmitted sales orders by e-mail (each, a “Purchase Order”) on the terms and conditions provided herein. Each Purchase Order shall be deemed to be incorporated as part of this Agreement upon Reseller’s issuance thereof, provided, however, that any variations made to the terms and conditions of this Agreement by Reseller in any Purchase Order are void and have no effect. Trouve’ has the right, in its sole discretion, to accept or reject any Purchase Order. A Purchase Order shall be deemed accepted by Trouve’ in the event Trouve’ fails to provide proper written notice of rejection within forty-eight (48) hours of Reseller’s issuance of the Purchase Order. Upon rejection of a Purchase Order, Trouve’ shall refund the payment therefor.
1.5. Cancellation of Purchase Order. Reseller shall have no right to cancel any Purchase Order. Trouve’ may, in its sole discretion, without liability or penalty, cancel any Purchase Order:
1.5.1. if Reseller is in violation of its payment obligations or has materially breached this Agreement;
1.5.2. if Trouve’ determines in its sole discretions that Reseller’s financial condition or creditworthiness is inadequate or unsatisfactory;
1.5.3. If Trouve’ determines that Reseller is misusing Product and/or selling Product End-Clients without managed home care;
1.5.4. If Reseller loses his or her cosmetology professional license;
1.5.5. If Reseller violates the Code of Conduct or otherwise acts in a manner that would demean, degrade or disparage the Trouve’ brand. If Reseller uses or sells the Products and/or TROUVE’ Programs in a manner that is outside the scope of his or her licensed professional duties or not in accordance with the applicable federal, state and local rules and regulations. In such instances, Reseller will be completely and solely liable for any and all resulting claims and causes of action. Such action may also result in the immediate termination of this Agreement; and
1.5.6. If Reseller sells the Products and/or TROUVE’ Programs outside the United States. In such instances, Reseller will be completely and solely liable for any and all resulting claims and causes of action. Such action may also result in the immediate termination of this Agreement.
2. Terms of Sale; Payments.
2.1. Terms of Sale. All sales of Trouve’’s Products to Reseller shall be made pursuant to this Agreement at such prices and on such terms, as Trouve’ shall establish Trouve’ time to time upon thirty (30) days prior written notice (the “Purchase Price”).
2.2. Payments. Reseller shall pay Trouve’ for the Products at the time it submits the Purchase Order.
2.3. Taxes. Reseller shall pay and be responsible for all taxes that are measured directly by the Purchase Price payments made by Reseller to Trouve’ for the Products hereunder and which Trouve’ is legally required to collect and pay over to tax authorities. The taxes for which Reseller is responsible hereunder shall include sales, use and excise taxes, but shall exclude, without limitation, Trouve’’s Trouve’anchise or business taxes, taxes based on Trouve’’s net income or gross receipts, and taxes Trouve’ which Reseller is exempt by law as shown by a current, valid tax exemption certificate, when such a certificate is required. Reseller shall be solely and exclusively liable for obtaining and maintaining a valid tax exemption certificate in order to obtain wholesale prices. If Reseller fails to maintain a valid tax exemption certificate, it will be liable for any and all taxes, interest and penalties that may result. Reseller is also responsible for notifying Trouve’ of any and all changes in its tax-exempt status and then paying the necessary taxes and pricing that may result.
Failure to keep a current, valid tax exemption certificate and/or to notify Trouve’ of changes thereto may result in the automatic termination of this Agreement.
3. Conforming and Non-Conforming Product.
3.1. Conforming Product. “Conforming Product” is defined as Product which is fit for its intended purposes, Trouve’ee Trouve’ defects in workmanship and of merchantable quality, and is produced and/or handled in full compliance with all applicable laws rules and regulations of Federal, State and local governments or regulatory agencies, and the terms and conditions of this Agreement.
3.2. Non-Conforming Product. Any Product that, in Trouve’’s determination, is not produced and/or handled in compliance with Section 3.1 above is defined as “Non-Conforming Product.” Additionally, any Product that is later found to be in violation of any warranty provided by Trouve’ shall be considered Non-Conforming Product.
4. Shipment and Delivery.
4.1. Shipment. Unless expressly agreed to by the Parties in writing, Trouve’ shall select the method of shipment of, and the carrier for, the Products. Trouve’ may, in its sole discretion, without liability or penalty, make partial shipments of Products to Reseller.
4.2. Shipping Fees. Reseller shall be responsible for all Trouve’eight costs, insurance costs, and shipping fees, unless otherwise agreed upon by Trouve’.
4.3. Delivery. Unless expressly agreed to by the Parties in writing, Trouve’ shall deliver the Products to the street address specified in the applicable Purchase Order using Trouve’’s standard methods for packaging and shipping such Products, which are further described in Exhibit B, hereto. At Reseller’s written request, Trouve’ may ship product directly to Reseller’s End-Client; provided, however, that Trouve’ shall not be responsible for communicating with the End-Client regarding any shipments, including providing tracking information. Reseller acknowledges and agrees that all communications regarding shipments shall be solely between Reseller and his/her End-Client. In addition, Reseller acknowledges and agrees that any returns of Product sought by the End-Client shall be solely Reseller’s responsibility to arrange in compliance with Trouve’’s return policy.
4.4. Late Delivery. Any time quoted by Trouve’ for delivery is an estimate only. Trouve’ is not liable for or in respect of any loss or damage arising Trouve’ any delay in filling any order, failure to deliver, or delay in delivery. No delay in the shipment or delivery of any Products relieves Reseller of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment(s) of Products.
4.5. International Shipment and Sales. Trouve’ does not ship outside the United States and its products are not authorized for sale or use outside of the United States. Trouve’ makes no representations and disclaims all warranties that the sale, prescription, or use of its products outside of the United States are in compliance with the laws of any foreign jurisdiction. Trouve’ shall have no liability to you or to any client or third party for any of its products that you ship, sell, prescribe or use outside of the United States, and any and all risks or liabilities arising thereTrouve’ shall be your sole responsibility. Trouve’ shall have no obligation to indemnify Reseller, End-Clients, or any third party in the event any damages, claims, demands, actions, fines, penalties, taxes, or losses of any kind arise Trouve’ or relate to Reseller’s unauthorized shipment to, or sale, prescription or use of products within jurisdictions outside of the United States. Reseller agrees to indemnify, protect, defend and hold harmless Trouve’ and its directors, officers, shareholders, agents, representatives, affiliates and successors, Trouve’ and against any all damages, claims, demands, actions, fines, penalties, taxes or losses of any kind directly or indirectly resulting Trouve’ or relating to your shipment, sale, or prescription of any Trouve’ products to End-Clients or any other third parties, or their use thereof, in jurisdictions outside of the United States.
4.6. Title and Risk of Loss. Title and risk of loss to the Products ordered under any Purchase Order passes Trouve’ Trouve’ to Reseller upon delivery of possession of the Products to the carrier. Reseller shall bear the risk of loss and be liable for any loss or damage sustained in transit and Reseller shall not be entitled to any offset or deduction of any such loss or damage. Claims for damages in transit, and for any lost or stolen packages if no signature is required at delivery, must be asserted by Reseller against the carrier. Notwithstanding the foregoing, claims for shortage not due to the actions or neglect of the carrier shall be deemed waived unless made, in writing, to Trouve’ within five (5) business days Trouve’ receipt of shipment.
4.7. Inspection. Upon delivery, Reseller shall have thirty (30) days (the “Inspection Period”) to inspect Products for any and all damage or defects, including but not limited to Products that deviate Trouve’ any of Trouve’’s Product specifications (“Non-Conforming Products”). Reseller will be deemed to have accepted the Products unless it notifies Trouve’ in writing of any Non-Conforming Products during the Inspection Period and provides such written evidence or other documentation as reasonably required by Trouve’. If Reseller timely notifies Trouve’ of any Non-Conforming Products, Trouve’ shall determine, in its sole discretion, whether the Products are Non-Conforming Products.
4.8. Limited Warranty. Trouve’ warrants to Reseller that:
4.8.1. No Products will be Non-Conforming Products; and
4.8.2. Reseller will receive good and valid title to the Products, Trouve’ee and clear of all encumbrances and liens of any kind.
4.9. Warranty Limitations. The warranties under Section 4.7 do not apply where the Products have:
4.9.1. been subjected to abuse, misuse, improper storage, improper handling, and/or abnormal environmental conditions; or
4.9.2. been reconstructed, repackaged, “white labeled,” rebranded, modified, or altered by anyone other than Trouve’ or its authorized representatives, if any; or
4.9.3. been used in violation of applicable directions or instructions for use or application, or otherwise used with any third-party product that has not been previously approved in writing by Trouve’ for such use(s). Third-party products are not covered by the warranty in Section 4.7. For the avoidance of doubt, Trouve’makes no representations or warranties with respect to any third-party product.
5. Return and Replacement.
5.1. Limited Right of Return. Except as provided under this Section 5, Reseller has no right to return Products purchased under this Agreement to Trouve’.
5.2. Returns Policy.
5.2.1. Conforming Product. Trouve’ may accept returns of all unopened undamaged, Conforming Products for up to thirty (30) days after delivery of said Products to Reseller (“Returned Product”), except as otherwise provided below. Reseller must contact Trouve’ prior to any return to obtain a return authorization number (“Return Authorization Number”). No Product will be accepted for return without a Return Authorization Number. Reseller can obtain a Return Authorization Number by contacting Trouve’’s Orders Department at orders@------------ (or such other number as may be specified by Trouve’. All Returned Product will be inspected by Trouve’ for compliance with this Section 5.2.1.
Returned Product that is returned within thirty (30) days Trouve’ the date of delivery will be eligible for credit or full refund. Conforming Product that is damaged or shipped incorrectly will be replaced or exchanged, in Trouve’’s sole discretion, at no expense to Reseller, provided that a claim is made within seven (7) business days Trouve’ receipt of the Product. Reseller will be charged a restocking fee equal to twenty percent (20%) of the cost of Returned Product if returned between thirty-one and ninety (31-90) days after delivery. There shall be no returns of Conforming Products after ninety (90) days of delivery.
5.2.2. Non-Conforming Product. For any Non-Conforming Product Trouve’ shall either (a) replace the Non-Conforming Products with Conforming Products as soon as commercially possible without any additional cost to Reseller, or (b) credit or refund the Purchase Price paid, if any, for the Non-Conforming Products, together with all shipping and handling expenses incurred by Reseller in connection therewith. At Trouve’’s election in its sole discretion Non-Conforming Product shall either be returned by Reseller to Trouve’ at Trouve’’s sole expense or Trouve’ shall make arrangements for the pickup and recover of such Non-Conforming Product at its expense. In no event shall Reseller sell, distribute or use any Non-Conforming Product.
5.2.3. End-Client Returns and Complaints. Any complaints or requested returns of Product by the End-Clients of Reseller shall be processed by Reseller. If any of Reseller’s End-Clients contact Trouve’ directly to request a return of Product, Trouve’ shall notify Reseller and Reseller shall process such request.
5.3. Exclusive Remedy. RESELLER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN Section 5.2.2 ARE RESELLER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING PRODUCTS.
6. Representations & Warranties.
6.1. By Reseller.
6.1.1. Reseller is Trouve’ee, and has full right and authority, to enter into this Agreement and to perform all of its obligations hereunder; and it has performed all acts and taken all steps necessary to authorize the execution of this Agreement;
6.1.2. Reseller’s execution, delivery and performance of this Agreement does not conflict with any other agreement to which Reseller is a party or is otherwise bound;
6.1.3. Reseller has, and shall preserve, maintain and comply with, all licenses and permits required for the conduct of Reseller’s business and the sale of Products at Reseller’s locations or on its website, including all licenses and permits required by state and local government authorities to market, promote and sell the Products and to provide cosmetology services;
6.1.4. The Products supplied to Reseller hereunder shall be stored, handled, applied, used, and sold by Reseller in accordance with Supplier’s specifications and standards and in compliance with all applicable federal, state and/or local laws, regulations and requirements, and Reseller shall use commercially reasonable efforts to assure that the employees, agents and/or representatives of Reseller handling, using or selling the Products do likewise;
6.1.5. Reseller shall ensure that all of its employees, agents, independent contractors, affiliates and assigns that sell or use the Product shall do so in the manner set out in this Agreement (including but not limited to Ex. A and the Supplemental Terms, as updated Trouve’ time to time), that those individuals are licensed and certified to use Trouve’ Products, Trouve’ Programs and services as needed, and that Products are used in accordance with any and all directions or trainings provided by Trouve’;
6.1.6. Reseller shall ensure that all of its employees, agents, independent contractors and assigns that use or sell Product have and maintain any and all licenses, permits and tax exempt certificates required by state and local government authorities to market, promote and sell the Products and to provide cosmetology services;
6.1.7. Reseller shall ensure that all of its employees, agents, independent contractors and assigns use the Products or Trouve’ Programs within the scope of their licensed duties, within the state(s) they are licensed in, and/or within the United States;
6.1.8. Reseller will act in good faith at all times;
6.1.9. Reseller will use Trouve’ Products, as outlined herein where appropriate;
6.1.10. Reseller will merchandise and advertise, both in retail locations and on-line, Trouve’ Products in such a way as to positively highlight Trouve’’s trademarks, trade dress, collateral and products;
6.1.11. Reseller will merchandise Trouve’ Products in a positive and attractive manner;
6.1.12. Reseller is permitted to sell Trouve’ Products in its retail brick and mortar stores.
6.1.13. Reseller may not sell any Trouve’ Products via third-party sites, including but not limited to eBay, Amazon, Craigslist, Facebook Marketplace, Poshmark, Mercari, Walmart, etc. Diversions of this nature may lead to the immediate termination of this Agreement;
6.1.14. Reseller will not “white label,” rebrand/or otherwise modify Trouve’ Product labeling, advertising materials and/or trade dress; and
6.1.15. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RESELLER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY COSMETOLOGY PROCESS, WHETHER IN TERMS OF SUITABILITY, GENERAL EFFECTIVENESS, TREATMENT SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY TROUVE’, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
6.2. By Trouve’.
6.2.1. Trouve’ is, and has full right and authority, to enter into this Agreement and to perform all of its obligations hereunder; and it has performed all acts and taken all steps necessary to authorize the execution of this Agreement;
6.2.2. Trouve’ has all rights necessary to lawfully market, sell and distribute the Products (including without limitation Trouve’ Products that are made by third parties);
6.2.3. Trouve’ is and shall remain in compliance with all laws and regulations applicable to the manufacture, sale, marketing, and distribution of the Products; and
6.2.4. Trouve’’s execution, delivery and performance of this Agreement does not conflict with any other agreement to which Trouve’ is a party or is otherwise bound.
7. Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER TROUVE’ NOR ANY OF ITS DIRECT OR INDIRECT SUBSIDIARIES OR AFFILIATES MAKES ANY, AND HEREBY DISCLAIMS ALL, OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, TO THE EXTENT ALLOWED BY APPLICABLE LAW, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTROUVE’INGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY TROUVE’, OR ANY OTHER PERSON ON TROUVE’’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 4.7 OF THIS AGREEMENT.
8. Recall. If an authorized government agency institutes or mandates a recall of the Products or, if Trouve’, in the exercise of its sole discretion, initiates and directs the content and scope of a recall, market withdrawal, stock recovery, product corrections and/or advisory safety communication (each referred to as “Recall Action”) regarding the Products, Reseller agrees to fully cooperate and take all such steps as are reasonably requested in a timely and complete manner, including but not limited to assisting Trouve’, as necessary or required by law, to contact Reseller’s customers who purchased and/or used the relevant Products. All costs involved with respect to any Recall Action will be borne by the Party whose fault required the Recall Action or by the Party that by law or regulation is otherwise responsible for such Recall Action. Notwithstanding the foregoing, if a voluntary recall is demanded by either Party without such recall being (i) required by any law or regulation in effect Trouve’ time to time, or (ii) based upon good faith concerns over the safety of the ultimate consumers of the Products, then the Party demanding such voluntary recall shall bear all costs associated therewith.
9. Indemnity.
9.1. Indemnification by Reseller. Reseller shall indemnify, defend and hold harmless Trouve’ and its officers, directors, employees, shareholders, agents, representatives, affiliates, successors and assigns (collectively, “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 Indemnified Party (collectively, “Losses”), relating to/arising out or resulting Trouve’:
9.1.1. breach or non-fulfillment of any representation, warranty, or covenant of this Agreement by Reseller and its employees, agents, affiliates and assigns;
9.1.2. any negligent or more culpable act or omission of Reseller and its employees, agents, affiliates and assigns (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
9.1.3. any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Reseller, and its employees, agents, affiliates and assigns, or the use of the Products in any manner not otherwise authorized under this Agreement or that does not materially conform with the Product usage instructions/guidelines/specifications; or
9.1.4. any failure by Reseller, and its employees, agents, affiliates and assigns, to comply with any applicable statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law of any governmental authority or regulatory body.
9.2. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Reseller is not obligated to indemnify or defend Indemnified Party against any claim (direct or indirect) if such claim or corresponding Losses arise out of or result Trouve’ Indemnified Party’s:
9.2.1. gross negligence or more culpable act or omission (including recklessness or willful misconduct);
9.2.2. sale or use of the Product in a manner that does not accord with this Agreement (including but not limited to Ex. A and the Supplemental Terms, as updated Trouve’ time to time) and/or any and all directions or trainings provided by Trouve’;
9.2.3. the sale or use of Trouve’ Products outside the United States; or
9.2.4. bad faith failure to comply with any of its obligations set forth in this Agreement.
9.3. Trouve’ Intellectual Property Indemnification. Trouve’ shall indemnify, defend, and hold harmless Reseller Trouve’ and against all Losses awarded against any Reseller arising out of any Claim of a third party alleging that any of the Products in Trouve’ any intellectual property right of a third party. If a Product, or any part of a Product, becomes, or in Trouve’’s opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 9.3, Trouve’ shall, at its sole option and expense, notify Reseller in writing to cease using, reselling, marketing, advertising, or promoting all or a part of the Product, in which case Reseller shall immediately cease all use, resale, marketing, advertising and promoting the Product on receipt of Trouve’’s notice. Reseller shall notify Trouve’ of third-party Claims against Reseller and cooperate in the investigation, settlement, and defense of such Claims. Notwithstanding anything to the contrary in this Agreement, this Section 9.3 does not apply to any claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement.
9.4. Survival. Such indemnification obligations shall survive the expiration or termination of this Agreement for any reason.
10. Certification; Training. Unless otherwise agreed by the Parties in writing, Trouve’ will provide one training of Reseller as part of the process to allow Reseller to become a certified Reseller of the Products. Upon completion of the Trouve’’s training and certification program, as well as the submission of certain documentation and other things. the Reseller shall become “Trouve’-certified,” which means that he/she is qualified to assess cosmetology needs and perform professional treatments relating to hair and is capable of selecting, promoting and selling the Products, and shall have a limited, non-exclusive license to represent that he/she/they is/are “Trouve’-certified.” Trouve’, in its sole discretion, may also provide periodic educational opportunities to Reseller in connection with the use or resale of the Products. Such educational opportunities should allow Reseller to become sufficiently knowledgeable of Trouve’’s Products so as to be able to explain in detail to Reseller’s customers the attributes of the Products and provide information on standard Trouve’ Programs and uses of each Product. Trouve’ will offer such educational opportunities as it considers appropriate and may vary what it provides Trouve’ time to time. Notwithstanding the foregoing, cosmetology and treatment may take years and constant learning for anyone to become proficient at. Every educational program participant has or will have a unique level of commitment, experience, and different abilities to learn and apply the information presented. Individual results may vary, and Trouve’ does not represent or guarantee that each participant in any offered educational opportunity will achieve the same or similar results. Trouve’’s educational offerings, if any, are not a substitute for legally required or industry-specific training and/or licensing requirements, nor are they intended to provide any medical or dermatological training that would enable Reseller to diagnose or treat any medical condition. Trouve’ training does not, by itself, qualify a Reseller to sell Trouve’ Products.
11. Advertising Policies.
11.1. General. The operations of Reseller are subject to the sole control of Reseller. All personnel of Reseller are employees or representatives of Reseller and not of Trouve’. Reseller agrees to conduct all its business in its own name and in such a manner as he/she/it may see fit, set his/her/its own hours, and supervise his/her/its own workers. Further, certain associates of the Reseller may be required to enter into, agree to and comply with an Associate Agreement.
11.2. Product Promotion. Reseller shall use commercially reasonable efforts to engage in the marketing and sale of Trouve’’s Products to prospective and existing customers/clients, in keeping with the terms of this Agreement. Reseller shall maintain sufficient knowledge of Trouve’’s Products, the cometology industry, and products competitive with Trouve’’s Products so as to be able to explain to customers/clients in detail the differences between the Products and competing products. Reseller may use advertising and promotional materials or other written product descriptions to promote the sale of the Products, whether set forth on the Product’s labeling, packaging, or other related sales materials, provided that such advertising and promotional material complies with all applicable laws and are in keeping with the Reseller’s Representations and Warranties as well as Trouve’’s brand standards and requirements. Reseller shall not make claims or statements that are false or injurious or beyond those allowed for by Trouve’. Reseller may not make material changes or alterations to Trouve’’s advertising and promotional materials without Trouve’’s prior review and express approval.
11.3. Product Claims. Reseller shall not make any claims or representations regarding the Products other than those claims and representations found in Trouve’ product information and/or marketing materials.
11.4. Use of Trouve’’s Intellectual Property. Other than the express licenses granted by this Agreement, Trouve’ grants no right or license to Sales Representative by implication, estoppel, or otherwise to the Products or any of Trouve’’s intellectual property rights. Reseller shall not contest the right of Trouve’ to exclusive use of any trademark or trade name used or claimed by the Trouve’. Reseller may, subject to Trouve’’s policies regarding reproduction of same, utilize Trouve’’s name, trademarks and logos in advertising, in catalogs or on its website. All use of Trouve’’s name, trademarks and/or logos by Reseller in connection with the resale of the Products hereunder shall be subject to a limited, non-exclusive license or sublicense granted by Trouve’ to Reseller to use Trouve’’s name, trademarks and/or logos during the Term solely and exclusively for Reseller’s performance of its obligations under this Agreement, to sell and promote the Products at its physical locations or on its website, and for such other purposes as Trouve’ may expressly authorize in advance in writing.
11.5. Use of Images. Only until such time as Reseller can use its own photos and imagery related to treatment results or Products, Reseller shall have a limited, non-exclusive license to use certain images and photos provided by Trouve’ (the “Images”) on its website to promote the Products. Notwithstanding the foregoing, Reseller agrees to immediately remove any photos and/or imagery of or relating to the Products or Trouve’ that are deemed by Trouve’, in its sole discretion, to be improper, misleading, false, deceptive, or illegal. Reseller may not make material changes or alterations to Trouve’'s photos or imagery without Trouve’'s prior review and express approval.
Further, if Reseller uses its own photos and imagery, it is completely and solely responsible for obtaining all consents, rights and permissions to do so in accordance with local, state and federal laws. Trouve’ will have no liability if Reseller improperly obtains or uses its own photos or images.
11.6. Media Inquiries. To ensure accurate, legally compliant, and consistent information to be provided to the public, Reseller may not respond to media inquiries regarding Trouve’, the Products, or any other aspect of Trouve’’s business. All media inquiries shall be immediately referred to Trouve’ for handling. Additionally, Reseller may not seek media opportunities that relate to Trouve’ or the Product without Trouve’’s express written consent, which may be withheld in Trouve’’s sole discretion.
11.7. Marketing and Resale Only. Reseller is authorized to market the Products only in the form and packaging as authorized by Trouve’ to Reseller and in accordance with the terms of this Agreement (including but not limited to Ex. A and the Supplemental Term, as updated Trouve’ time to time). Nothing herein, however, shall prevent Reseller, in its reasonable discretion, Trouve’ separately developing advertising and promotional materials to promote the sale of the Products.
11.8. Ethical Marketing. Reseller shall safeguard and promote the good reputation of Trouve’ at all times. Reseller shall at all times conduct his/her/its business in a manner that reflects favorably on Trouve’ and the good name, goodwill and reputation of Trouve’. Reseller shall not engage in any unfair, unethical, misleading or deceptive practices in promoting and/or selling the Products, nor shall Reseller disparage Trouve’ or the Products, or otherwise case Trouve’ or the Products in a false light. Reseller shall comply with all applicable laws, rules, regulations or governmental requirements applicable to the operation of Reseller’s business, the performance of this Agreement, and the marketing, sale and/or use of the Products. Reseller may not make material changes or alterations to Trouve’'s advertising and promotional materials without Trouve’'s prior review and express approval.
11.9. Morals Clause. Neither Reseller nor Reseller’s employees, representatives or agents shall commit any act or do anything which might reasonably be considered: (i) to be immoral, deceptive, scandalous or obscene; (ii) to injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with Trouve’ and/or its products and services; and/or (iii) make any statements that are negative concerning the Trouve’ brand, its Products and its cosmetology regimes. If the Reseller or Reseller’s employees, representatives or agents are accused of any act involving moral or ethical issues, dishonesty, theft or misappropriation, under any law, or any act which casts an unfavorable light upon its association with Trouve’ or Reseller, including but not limited to adverse action against his or her cosmetology license, is accused of performing or committing any act which could adversely impact the marketability of Trouve’’s products or services or Trouve’’s reputation or corporate image, as determined by Trouve’ in its sole discretion, Trouve’ shall have the right to terminate this contract upon fifteen (15) days written notice without liability to Reseller. Further, Reseller and its employees, contractors, assigns and affiliates shall also fully comply with the Code of Conduct in Exhibit A.
11.10. No Outbidding. Resellers shall not bid against Trouve’ for, or purchase, any domains that include any variation or misspelling of Trouve’, in any format, in any pay per click search engine, including but not limited to, Google, Bing, Yahoo, Ask, Lycos, Facebook or Amazon.
11.11. Minimum Advertised Price (“MAP”) Policy. Trouve’ has a MAPS policy in place to protect the value that it brings to Resellers. In furtherance of this:
11.11.1. This MAP Policy is applicable to all authorized Resellers and to all Trouve’ Products and TROUVE’ Programs.
11.11.2. Pursuant to this MAP Policy, Resellers may not advertise or sell Trouve’ Products or Trouve’ Programs at prices below MAP, as set forth on Trouve’’s website: https://trouvehairextensions.com/. "Advertising" includes, but is not limited to, promotions and advertising in the following format: (a) Print (magazines, newspapers, flyers, inserts, circulars, direct mail, out of store Reseller coupons); (b) Broadcast (television, radio, on-line video); (c) Billboards, windows or other outdoor advertising; and/or (d) E-mail, Internet and online advertisements (individual product pages, product list pages, website home pages, social media posts, banner ads, pop up ads, paid search results and circulars).
11.11.3. Pre-tax advertised price must be at or above MAP (i.e., MAP is exclusive of any applicable taxes).
11.11.4. Advertisements that list a discount without showing a specific advertised price in dollars are subject to MAP (i.e., if the discount results in the price going below MAP, it is a violation).
11.11.5. Discounting of up to ten percent (10%) is allowed.
11.11.6. Resellers who violate this MAP Policy may be subject to sanctions such as a warning letter informing them of the violation and consequences for future violations, suspension of supply/ordering privileges, and/or immediate termination of this Agreement.
11.11.7. Trouve’ reserves the right to modify, suspend or discontinue this MAP in whole or in part at any time, or to designate promotional periods during which the terms of the Policy may change or not be applicable. Trouve’ will notify Resellers of any such changes at least thirty (30) days prior to implementation.
11.11.8. Exclusions Trouve’ MAP:
(a) This MAP Policy does not apply to the retail prices at which Products or Trouve’ Products are actually sold. Resellers continue to have the right to sell at any price they choose. This simply controls the advertised price of Trouve’ Products and Trouve’ Programs.
(b) Solely on-premises or in-store advertising (in-store signage, price tags, displays, hang tags).
(c) Discounts applied only “in basket,” in the “shopping cart,” or in similar check-out web pages or windows on websites and mobile applications.
(d) Price quotes responding to a direct consumer inquiry, whether transmitted in person, by phone, or e-mail.
(e) Strategic promotional vehicles (as defined by the Trouve’ Marketing Department).
(f) The annual sales delineated supra.
11.12. Reservation of Rights. The Parties acknowledge and agree that, except for the rights and licenses expressly granted by Trouve’ to Reseller under this Agreement, Trouve’ will retain all right, title and interest in and to its Products, services, trademarks, and all content, information and other materials on their respective websites, and nothing contained in this Agreement will be construed as conferring upon Reseller, by implication, operation of law or otherwise, any other license or other right. Neither Reseller nor his/her/its employees, staff, personnel, representatives or agents shall, directly or indirectly, make any representations, warranties, guarantees, indemnities, similar claims, or other commitments actually, apparently, or ostensibly on behalf of Trouve’ to any customer/client with respect to the Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in any online or written documentation made available Trouve’ to its customers or product users.
11.13. No Continuing Rights. On expiration or earlier termination of this Agreement, Reseller will immediately cease all display, advertising, promotion, and use of all of Trouve’’s trademarks and will not thereafter use, advertise, promote, or display any trademark or any part thereof that is similar to or confusing with Trouve’’s trademarks or with any trademark associated with Trouve’ or any Product.
12. Term and Termination.
12.1. Term. The Term of this Agreement shall commence on the Effective Date until this Agreement is terminated by either Party as provided in this Section 12.
12.2. Termination without Cause. Either Party may terminate this Agreement at any time for any reason or no reason at all by written notice given to the other Party not less than thirty (30) days prior to the effective date of such notice. Neither Trouve’ nor Reseller shall have any further obligation or liability to the other for any terminated pending Purchase Orders.
12.3. Termination for Default. A Party shall commit an “Event of Default” under this Agreement if: (i) such Party fails in any material respect to perform or keep any of its material obligations or covenants hereunder, or otherwise materially breaches this Agreement, and fails, in each case, to cure such failure or breach within thirty (30) days after its receipt of written notice thereof Trouve’ the other Party; (ii) any representation or warranty made by such Party herein is false or inaccurate in any material respect when made, or becomes false or inaccurate in any material respect thereafter; or (iii) such Party files a petition in bankruptcy, or has filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days after filing, or applies for or consent to the appointment of a receiver, custodian, trustee or liquidator, or makes a general assignment for the benefit of creditors. If a Party commits an Event of Default (the “Defaulting Party”), then the other Party (the “Non-Defaulting Party”) may terminate this Agreement upon written notice to the Defaulting Party. Such termination shall be without prejudice to the Non-Defaulting Party’s other rights and remedies under this Agreement, at law, or in equity.
12.4. Termination for Cause. Trouve’ can terminate this Agreement immediately for cause as defined as follows:
12.4.1. The suspension, revocation, surrender or cancellation of Reseller’s cosmetology license;
12.4.2. The discipline of Reseller by any professional or state organization with material jurisdiction over Reseller;
12.4.3. The imposition of any restrictions or limitations by any governmental authority having jurisdiction over Reseller to such an extent that Reseller cannot engage in the professional cosmetology practice;
12.4.4. Reseller’s failure or refusal to comply with the Morals Clause, after receiving notice and fifteen (15) days to cure such breach, and either (i) Reseller is still in breach of the Morals Clause of this Agreement if such breach or failure could reasonably have been cured within thirty (30) days; or (ii) if such breach or failure cannot reasonably be remedied within fifteen (15) days, Reseller has not commenced to cure the breach within fifteen (15) days, or such breach has in any event not been cured within ninety (90) days; or
12.4.5. Reseller has an affirmative to timely report to Trouve’ any investigation or inquiry by any regulatory agency, governmental authority or professional society regarding any item or activity, whether material or not, and listed in this Section. Failure to report is grounds for cause and automatic termination of this Agreement.
12.4.6. Reseller sells Products or outside his or her scope of licensed authority/practice (including any geographic restrictions) and/ or outside the United States.
12.4.7. Reseller sells Trouve’ Products on a third-party website or platform and/or “white labels” or rebrands Products or makes material changes Trouve’’s advertising and promotional materials without Trouve’’s prior review and express approval.
12.5. Effect of Termination.
12.5.1. No Authorized Sales. Upon termination of this Agreement, Reseller shall cease to be an authorized Reseller for Trouve’.
12.5.2. Unshipped Purchase Orders. All unshipped Purchase Orders shall be cancelled without liability of either Party to the other.
13. Confidentiality.
13.1. Definition. “Confidential Information” means all confidential or proprietary information of a Party (the “Disclosing Party”) that it designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party, based on the nature of the information or the circumstances surrounding its disclosure, should reasonably understand to be confidential. Confidential Information includes all such information submitted to, observed by or learned by the Receiving Party in connection with this Agreement, including this Agreement, information relating to the Disclosing Party’s customers, technology, operations, facilities, products, ideas for products, systems, procedures, practices, research, development, employees, business affairs and/or financial information, whether learned by the Receiving Party before or after the Effective Date. The terms and conditions of this Agreement are the Confidential Information of each Party and neither Party may disclose this Agreement without the consent of the other Party, except in connection with standard due diligence activities that may be conducted in connection with financing or mergers and acquisitions activities and except to such Party’s financial or legal advisors. Confidential Information does not include information that is (i) generally available to the public other than through breach of this Agreement; (ii) information known to the Receiving Party prior to the Disclosing Party’s disclosure and which was, to the Receiving Party’s knowledge, rightfully disclosed; or (iii) information developed independently and without use of or reference to the Disclosing Party’s Confidential Information as shown by the Receiving Party’s contemporaneous written business records.
13.2. Use of Confidential Information. Each Party shall maintain control of all Confidential Information in a fashion consistent with maintaining its respective confidentiality obligations hereunder. A Party shall disclose the other Party’s Confidential Information solely to its employees who have a need to know. Each Party shall return the other Party’s Confidential Information, without keeping copies, upon the expiration or termination of this Agreement or within ten (10) business days following the request of the other Party. Following such return of Confidential Information, the returning Party shall certify in writing that such Party has returned all Confidential Information and has retained no copies thereof.
13.3. Legally Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required to do so by law, provided that the Receiving Party: (i) gives the Disclosing Party prior notice (if such notice is not prohibited by law) to afford the Disclosing Party an opportunity to appear, object, and obtain a protective order; (ii) use diligent efforts to limit disclosure and/or obtain confidential treatment or a protective order; and (iii) allow the Disclosing Party to participate in any proceeding in which compelled disclosure is sought. If such protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions hereof, the Receiving Party agrees to furnish only those portions of the Confidential Information which it is advised by written opinion of counsel as legally required and to exercise its best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
13.4. Equitable Relief. Each Party acknowledges that the value of the other Party’s Confidential Information is unique and substantial, and it may be impractical or difficult to assess its value in monetary terms. Accordingly, in the event of an actual or potential violation of this Section 13, the violating Party expressly consents to the enforcement of this Agreement by injunctive relief or specific performance in addition to any and all other remedies available to the non-violating Party.
14. Non-Disparagement. Reseller agrees not to disparage nor defame the Trouve’ Products, Trouve’, or any Trouve’ officers, directors, shareholders or employees, nor otherwise make, endorse, publicize or circulate to any person or entity, any statement or remark that can reasonably be construed as disparaging to them or make any statement concerning any of them which in any way could harm or interfere with Trouve’’s business or interests or reputation. This includes, but is not limited to, all public commentary and social media platforms.
15. Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY (INCLUDING A LOSS OF DATA), AND FOR LIABILITY OWED TO A THIRD PARTY FOR A CLAIM THAT IS SUBJECT TO INDEMNIFICATION UNDER SECTION 9 HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING ANY AND ALL SUCH DAMAGES TROUVE’ BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL OR LOSS OF USE OF ANY PROPERTY OR CAPITAL), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 15 SHALL APPLY, REGARDLESS OF WHETHER SUCH CONSEQUENTIAL DAMAGES ARISE TROUVE’ BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE.
16. General.
16.1. Notices. All notices of default, breach, renewal or termination of this Agreement required or permitted hereunder (collectively, “Notices”) shall be (i) in writing, (ii) sent to the other Party at the address set forth on the first page of this Agreement (or to such other address a Party identifies through proper notice), or to such different address as such Party may designate in writing on thirty (30) days prior written notice to the other Party, and (iii) transmitted to the other Party via hand-delivery, nationally recognized commercial overnight courier, or United States registered or certified mail, postage prepaid, return receipt requested. Notices shall be deemed given when actually delivered to the recipient Party or when such recipient Party refuses delivery thereof as shown on the delivery receipt.
16.2. No Waiver. No waiver of any provision of this Agreement (or any right or default hereunder) shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. The waiver or failure of either Party to exercise in any respect any right provided in this Agreement shall not be deemed a waiver of any other right or remedy to which the Party may be entitled.
16.3. Relationship of the Parties. The relationship between Trouve’ and Reseller is that of vendor and vendee. Reseller, its agents and employees shall, under no circumstances, be deemed employees, agents or representatives of Trouve’. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, Trouve’anchise, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any obligation, contract, agreement, or undertaking with any customer or other third party. Except as provided otherwise in this Agreement, Reseller has the sole discretion to determine Reseller’s methods of operation, Reseller’s accounting practices, the types and amounts of insurance Reseller carries, Reseller’s personnel practices, Reseller’s advertising and promotion, Reseller’s customers, and Reseller’s service areas and methods. The relationship created hereby between the parties is solely that of supplier and Reseller. If any provision of this Agreement is deemed to create a Trouve’anchise relationship between the parties, then Trouve’ may immediately terminate this Agreement without liability to Reseller.
16.4. Assignment. Neither Party shall transfer, assign, subcontract or delegate, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. Further, Resellers are prohibited Trouve’ giving, gifting, lending, selling or assigning its Trouve’ Account to any other person or entity. Such conduct may result in the immediate termination of this Agreement.
16.5. Dispute Resolution. The Parties shall follow the dispute resolution process set forth in this Section 16.5 in connection with all disputes, controversies or claims, whether based on contract, tort, statute, Trouve’, misrepresentation or any other legal theory arising out of or relating to this Agreement or breach of alleged breach of this Agreement, including the validity or enforceability of this dispute resolution process, or any part thereof (collectively “Disputes”).
16.5.1. Mediation. The Parties will use all reasonable efforts to settle all Disputes through good faith negotiations, to be commenced by a Party giving written notice to the other Party. If those attempts fail to resolve the Dispute within thirty (30) days of the date of the initial written demand for negotiation, then the Parties shall use all reasonable efforts in good faith to settle the Dispute by mediation conducted under the Commercial Mediation Rules of the American Arbitration Association, or other such rules agreed to in advance by the parties in writing. Each Party shall bear its own expenses. The Parties shall equally share the filing and other administrative expenses of the mediation and the expenses of the mediator. The Parties shall be represented at the mediation by representatives having final settlement authority over the matter in dispute.
16.5.2. Arbitration. If any Dispute is not finally resolved at mediation pursuant to Section 15.5.1, such Dispute shall be decided by neutral, binding arbitration and not by court action, except as provided by Colorado law for judicial review of arbitration proceedings in Contra Costa County, Colorado. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association. The Parties may agree in writing to choose different rules and/or arbitrator(s). In all other respects, the arbitration shall be conducted in accordance with the Colorado Code of Civil Procedure. Judgment upon the award rendered by the arbitrator(s) may be entered into in any court having jurisdiction thereof. Each Party shall have the right to discovery in accordance with the Colorado Code of Civil Procedure. Excluded Trouve’ arbitration are any actions for specific performance or other injunctive or related relief. The filing of a judicial action to enable the recording of a notice of pending action for order of attachment, receivership, injunctive relief, or other provisional remedies shall not constitute a waiver of the right to arbitrate under this Section 16.5.
“NOTICE: BY INITIALING THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION PROVISIONS OF THIS SECTION 15.5 DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY COLORADO LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ARBITRATION PROVISIONS. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE COLORADO CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION IS VOLUNTARY.”
“WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION PROVISION TO NEUTRAL ARBITRATION.”
Initials for Trouve’ KC Initials for Reseller
16.5.3. The Dispute resolution process set forth in this Section 16.5 shall survive the termination or expiration of this Agreement.
16.6. Cumulative Rights and Remedies. Each Party’s rights and remedies hereunder shall be cumulative with, and may be exercised without prejudice to, such Party’s other rights and remedies under this Agreement, at law, or in equity.
16.7. Attorney’s Fees and Costs. If any suit or legal proceeding is brought by either Party to enforce any of the terms of this Agreement or any of its rights hereunder, the prevailing party in such action or proceeding shall be entitled to recover all of its reasonable costs and expenses incurred in such suit or legal proceeding, including reasonable attorneys’ fees.
16.8. Entirety of Agreement. The terms and conditions set forth herein and in the Supplemental Terms constitute the entire agreement between the Parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein or in the Supplemental Terms. No change can be made to this Agreement other than in writing and signed by both Parties.
16.9. Governing Law; Venue. This Agreement shall be construed and enforced according to the laws of the State of Colorado without regard to conflicts of law provisions. Any claim or litigation brought under or relating to this Agreement shall be brought in the United States District Court for the Northern District of Colorado or, only if there is no federal subject matter jurisdiction, the state courts located in Contra Costa County, Colorado, and each Party hereby submits to the exclusive jurisdiction of those court for purposes of any such proceeding.
16.10. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
16.11. Counterparts; Electronic Signatures. This Agreement may be signed by the Parties on separate counterparts, each of which shall be deemed an original and a single instrument. The Parties agree that any signatures or initials communicated electronically or by facsimile machine and any facsimile or photocopy or electronic copy of this Agreement including counterparts shall be valid and binding.
EXHIBIT A
PRODUCT SALES RESTRICTIONS
To purchase Products from Trouve’ for resale, the following conditions must be met: (1) you are a licensed cosmetology professional (Cosmetologist); (2) you have a valid, fully-executed Wholesale Supply Agreement with Trouve’ (“Supply Agreement”); (3) you are an approved Reseller (“Reseller”) of Trouve’’s Products; and, (4) you have read, understand, and agree to be bound by these terms and agree that these terms are in addition to and supplement the terms of the Supply Agreement. The term “you” refers to the individual or legal entity, as applicable, identified as the Reseller on the Supply Agreement. If you do not agree to be bound by these terms, you may not access or use the Pro Website or purchase products through the Pro Website.
“Required consultation” shall, at a minimum, include: (a) correspondence between you and the End-Client via check-in form, via email, via phone, or video; (b) visual evaluation by you, which may be done in-person, by video or photos; and (c) an analysis and consultation.
Managed home care requires, at minimum, the following steps:
LIST OF AFTER CARE
In addition, Products and TROUVE’ Programs should not be shipped to states in which you are not licensed to provide professional cosmetology services, where shipping such products would be outside your scope of practice, or outside of the United States.
For additional information on what constitutes as compliant:
Client Communications
You remain solely responsible for the treatment plans of your End-Clients, and you agree to direct all of your End-Clients to contact you and not Trouve’ with any questions regarding their treatement or the products you recommend or supply to them. At no time will Trouve’ communicate with your clients regarding their treatment plans or products ordered. Trouve’ will not knowingly respond to any inquiries received by your End-Clients regarding their treatments or use of the products. All such inquiries will be referred by Trouve’ to you for response and handling.
Code of Conduct
We at Trouve’ hold ourselves and our cosmetology professionals to the highest standards of service. By entering into the Wholesale Supply Agreement, Reseller (inclusive of any employees, officers, directors, associated parties, and affiliates) agrees to abide by Trouve’’s Code of Conduct and the mutual promise of respect and integrity. Reseller agrees to interact with the public, customers, clients, other cosmetology professionals, and our corporate team in a respectful and honest manner. Specifically,
You agree to use appropriate language and a professional tone when interacting with others in person, on social media, and/or via other forms of correspondence.
You agree to serve the best interests of your End-Clients at all times and provide high-quality and honest care.
You agree not to work outside your scope of practice, as defined by local, state, and federal laws and regulations.
You acknowledge the contraindications and limitations for cosmetology and refer clients to other health-care professionals when indicated.
You will demonstrate compassion and respect for others and will act in a professional manner at all times. Discrimination, harassment and disparagement are not acceptable. You will not refuse service to any client based on disability, ethnicity, gender identity, marital status, physical build, or sexual orientation; religious, national, or political affiliation.
You will not use recreational drugs or alcohol before or during treatments.
You will follow all advertising directions proscribed by Trouve’ and will abstain Trouve’ making any claims concerning Trouve’ and its products that exceed what Trouve’ has claimed.
You will not make material changes or alterations to Trouve’'s advertising and promotional materials without Trouve’'s prior review and express approval.
You will not offer Trouve’ products for sale on your own e-commerce website without Trouve’’s pre-approval.
You agree to act with honesty and integrity and to present Trouve’ and its Products and services in a positive light at all times.
You shall not (i) misuse material, non-public information; (ii) employ any device, scheme or artifice to Trouve’ current or potential advisory clients of Trouve’; (iii) make any untrue statement of a material fact to a current or potential advisory client of Trouve’ or omit to state to such client a material fact necessary in order to make the statements made in light of the circumstances under which they are made, not misleading; (iv) engage in any act, practice, or course of business which operates or would operate as Trouve’ or deceit upon current or potential advisory clients of Trouve’; or (v) engage in any manipulative practice with respect to the clients or potential clients of Trouve’.
You should comply with all national, state and local laws in conducting your business and marketing, selling and using Trouve’ Products and services.
When selling or using Trouve’ products, you should ensure that the highest standards of hygiene and strict quality controls are observed.
Violation of our Code of Conduct, like any other part of this Agreement, may result in verbal or written notices, suspension or immediate termination of your Reseller account at Trouve’’s sole discretion. Without waiving any available legal rights or remedies, Trouve’ expressly reserves the right to suspend sales and/or close your account for failure to comply with our policies, terms, and/or conditions at any time with or without prior notice for violations of our Code of Conduct.
EXHIBIT B
SHIPPING POLICY
Trouve’’s shipping policy, which may be amended Trouve’ time to time in Trouve’’s sole discretion, is as follows. All pricing is within Trouve’’s discretion and information may be found on Trouve’’s website at: [insert website].
The carrier is determined by Trouve’ based on delivery location and requested delivery time. Generally, standard shipping will be via UPS, USPS, FedEx or a similar carrier. Expedited and express shipping is available. Expedited and express orders receiving priority processing and will be processed before standard shipping orders.
Tracking information is emailed to Reseller once an order has been shipped Trouve’ Trouve’’s fulfillment center. Please allow extra transit time for orders shipping to Alaska, Hawaii, and Military APO/FPO. Expedited and express service is not available for shipments to Military APO/FPO, P.O. boxes, and some locations in Alaska, Hawaii, and certain U.S. territories.
Please allow 24-48 hours for order processing. All orders will be prepared and shipped during Trouve’’s fulfillment center business hours, Monday through Trouve’iday, 8 a.m. to 5 p.m., Pacific Time. Orders placed on Trouve’iday after 11 a.m. Eastern Time/8 a.m. Pacific Time will not be processed and shipped until the next business day. All orders placed on Saturday or Sunday will be processed the following business day.
Trouve’’s shipping policy for direct to consumer sales can be found at: Contact us