This Agreement is between Ikan International, LLC (“Company”) and the reseller (“Reseller”) and establishes the terms and conditions for Reseller’s participation in the Company Reseller Program (the “Program”).
1. Appointment of Reseller
1.1. Authorization and Appointment. The Company authorizes and appoints the Reseller, and the Reseller accepts the appointment, as a non-exclusive reseller to market, sell, or incorporate for resale the Company’s Products and Services.
1.2. Restrictions on Appointment. The Reseller’s authorization from the Company to resell Company Products and Services is limited to the Territory described in Exhibit A. The Reseller shall not actively market the Products nor solicit any orders for the Products outside of the Territory. The Reseller shall not market or list the Products on third-party e-commerce marketplaces, including but not limited to Amazon and eBay.
1.3. Revision of Authorization. The Company reserves the right to revise the list of Products and Services, suggested list price, and reseller discount price at any time during the term of this Agreement. The Company will notify the Reseller of such revisions.
2. Orders
2.1. Purchase Orders. All orders for the Products submitted by the Reseller shall be in writing and emailed to the Company’s PO Inbox with the email address PO@ikancorp.com. Purchase Orders shall contain the following: (a) each item of Product ordered by model or part number, (b) quantity requested, (c) unit Price, (d) payment arrangements, and (e) estimated delivery date.
2.2. Acceptance. The Company shall, within three (3) business days of receipt of the Purchase Order from the Reseller, communicate in writing (email being an acceptable form of writing) its acceptance or rejection of the Purchase Order. Purchase Orders are valid only if they are accepted by the Company in writing.
2.3. Cancellation. The Reseller has the right to resend any Purchase Order prior to it being accepted by the Company. Once a Purchase Order has been accepted by the Company and prior to shipping, the Reseller can request in writing to cancel the Purchase Order. The Company reserves the right to accept or deny the Reseller’s cancellation request. Purchase Orders for customized products and/or special order products cannot be cancelled.
2.4. Distribution. If a Reseller purchases the Products from an Ikan Authorized Distributor, Ikan is not bound by any Purchase Order terms between the Reseller and Distributor. If Ikan accepts a Purchase Order from a Reseller, the terms other than the accepted price for the Product are governed by this agreement, not the Reseller’s Purchase Order.
3. Payment Terms
3.1. All payment terms are mutually agreed upon by the Reseller and the Company. The record of the agreement can be a formal document or acknowledged in an email. Terms are subject to change upon the mutual consent of both parties.
3.2. The dollar amount of open credit for the Reseller is established solely by the Company. All transactions and levels of credit are done in and calculated in US Dollars.
3.3. The Company will not deliver any products to, or perform any services for, the Reseller, or incur any expenses related thereto, except as specified in a Purchase Order issued by the Reseller and received and accepted by the Company. Subject to the terms of this Agreement, the Reseller will pay the price in the Purchase Order for each type and quantity of the products and/or services. Each invoice will contain, at a minimum: (i) the Reseller Purchase Order number, (ii) a description of the products and/or services delivered and/or performed, including serial numbers as applicable, and related expenses, if any, (iii) quantity and unit price(s), (iv) the Company’s name and invoice date, (v) name (where applicable), title, phone number, and complete mailing address and remit address of the responsible person at the Company, (vi) wire transfer or ACH instructions (if applicable), and (vii) such other documentation or information as the Reseller may request from time to time.
3.4. The Reseller shall pay or reimburse the Company for sales, use, excise or similar transaction taxes imposed on the sale of Products and/or Services to the Reseller under this Agreement, to the extent such taxes are statutorily imposed on the Reseller. In lieu thereof, and if applicable, the Reseller will provide the Company with a tax exemption number or, at the Company’s request, a tax exemption certificate acceptable to the taxing authority.
4. Delivery and Shipment
4.1. Delivery. The Company shall deliver the Products in accordance with the instructions provided in the Purchase Order.
4.2. Cost of Delivery. Unless instructed otherwise in the Purchase Order, the Reseller shall be responsible for all shipping costs, including import, export fees, packing, shipping, freight, and insurance charges.
4.3. Failure or Delay in Delivery. The Company shall make commercially reasonable efforts to meet the estimated delivery date and/or delivery date specified in the Purchase Order, but shall not be liable for failure to deliver or for any delay or effort in the delivery of the Products. In case the Company cannot meet the estimated delivery date and/or delivery date specified in the Purchase Order, the Company shall promptly notify the Reseller and discuss in good faith the appropriate delivery date.
4.4. Shipment. The Company shall ship the Products directly to the Reseller, not to any of the Reseller’s customers unless specifically agreed between the Company and the Reseller, at the Reseller’s expense and in accordance with shipping instructions provided in the Purchase Order. Unless otherwise specified on the Purchase Order, delivery shall be made to the Reseller’s address specified on the first page of the Agreement, or an address mutually agreed upon between the Company and the Reseller.
4.5. Risk of Loss. Title, risk of loss, theft, and damage shall pass from the Company to the Reseller upon tender of Products to the Reseller’s shipping carrier of choice at the Company’s fulfillment center.
4.6. Damaged Products and Damaged Packaging. In the event that the Product is found to be damaged or has damaged packaging (“Damaged Product”) upon acceptance of the Product, the Reseller shall promptly notify the Company through e-mail of the existence of such Damaged Product within three (3) business days of acceptance of the Product. Both the Reseller and the Company shall, in good faith, work to resolve the problem without sending the Damaged Product back to the Company. Should the Company determine that the Damaged Product has damage which cannot be remedied without having such Damaged Product shipped back to the Company, the Company shall issue a return material authorization to the Reseller. The Company shall ship a replacement for the Damaged Product and the Reseller shall, upon notice of shipment by the Company, return the Damaged Product.
5. Price
5.1 Prices to Reseller. The EX WAREHOUSE reseller price, denominated in USD and payable by the Reseller for each Product, shall be the applicable Dealer Price listed in Exhibit B for such Product at the time of order.
5.2 Resale Prices. The Reseller will determine its own resale prices to the Reseller’s customers. The Company may, however, provide the Reseller with suggested retail price lists on occasion.
5.3 Revision of Prices. The Company may, upon prior written notice to the Reseller, change the discount for any or all Products not yet ordered.
5.4 Discount for Deal Registration. Unless otherwise provided in Schedule A, use the Ikan registration database to register Customers in the Reseller’s Territory will result in a predetermined pricing discount off of the final Reseller price and purchase order to Ikan. Registration will need to be completed on Ikan’s Partner Relationship Management site and approved by an Ikan Account Manager and include the name, address, phone number, and e-mail address of each Customer, a description of the Product sold including model or version, date of sale and delivery.
6. Shipping
6.1. Unless otherwise agreed upon, all international shipment costs from the Company are the responsibility of the Reseller. International shipment costs include but are not limited to all applicable duties, taxes, and/or brokerage fees.
6.2. Domestic orders of $1000 will be shipped free of charge by the Company in the most economical and practical manner within the Contiguous United States (i.e. the 48 adjoining U.S. states in North America). Any requests for special shipping will be charged to the Reseller unless otherwise agreed upon.
6.3. All orders under $1000 will ship to the Reseller’s designated warehouse, unless other arrangements have been made. By default, the Company will prepay for shipment costs and then bill the Reseller for it. The Reseller can, upon request, pay for their own shipment directly by providing the Company with their own UPS or FedEx account number, or by arranging their own carrier pick-up at the Company’s Houston warehouse located at 10207 S. Sam Houston Pkwy West Suite 140, Houston, TX 77071.
6.4. All freight charges are subject to carrier dimensional/oversized weight regulations. Parcel and freight charges are non-refundable.
7. Reseller
7.1. Reseller is a non-exclusive reseller of the product(s) listed. Reseller shall have the right to purchase and resell to end users.
8. Term
8.1. Term. This Agreement will commence upon the Effective Date and continue for a period of one year (the “Initial Term”). Thereafter the agreement will automatically renew for a period of one year unless the parties agree in writing to terminate the agreement at least 30 days prior to the expiration of the Initial Term (each such renewal a “Renewal Term”). The Initial Term, together with any Renewal Term(s), is collectively referred to as the “Term”.
8.2. Termination by Either Party. Either party may terminate this Agreement immediately for cause in the event the other party: i. Fails to perform any of its material obligations, ii. Shall become insolvent, iii. Admits in writing its inability to pay its debts as they mature, iv. Ceases to function as a going concern or to conduct its operations in the normal course of business, v. Assigns or transfers, either voluntarily or by operation of law, any or all of its rights or obligations under this Agreement without having obtained the prior written consent of the other party, or vi. Files or has filed against it a petition under any state or federal bankruptcy or insolvency law.
8.3. Effect of Termination. Upon termination of this Agreement, the Reseller may market and sell existing inventory until depleted.
9. Warranty; Support; Safety
9.1. The Company hereby warrants that the product(s) sold to the Reseller will be of merchantable quality according to accepted industry standards and will be free of defects in material and workmanship in all material respects and the product(s) will conform in all respects to the functional and other descriptions contained in the specifications and other materials provided to the Reseller. Such warranty shall begin to run upon the Reseller’s delivery of the product(s) to the end user and is subject to an end user providing proof of the date of original purchase.
9.2. Such warranty of the Company shall also be for the benefit of respective end users. The product warranty period shall begin to run upon the Reseller’s delivery of the product to the end user and is subject to an end user providing proof of the date of original purchase. Any product to be shipped back for repair under the terms of the warranty and with an approved Return Authorization may be shipped to the Company either by the Reseller or by an end user.
9.3. The Reseller agrees to provide initial support for basic customer service, and the Reseller may direct a call to the Company for the Company to handle or request the Company’s assistance in email correspondence. The Company agrees to provide all customer support directly to end users for any product issues the Reseller is unable to support, including but not limited to product or part replacement due to defect or missing parts. Any calls or emails directed to the Company by the Reseller shall be referred to the Company’s working U.S. telephone number, which will be set up at the Company’s expense, to handle any product issues the Company is unable to support. The Reseller shall take all reasonable, prompt, and efficient actions to ensure Customer satisfaction with the Products and assist Ikan or its Authorized Distributor in resolving all Customer complaints concerning the Products in an expedient manner whether or not the Reseller services the Products.
If the Reseller does not satisfactorily explain to Ikan its failure to resolve all of said complaints within thirty (30) days of said Notice, such failure may be deemed a material default under this Agreement.
9.4. Upon the Company’s request and expense, the Reseller shall ship a returned product to the Company for evaluation and review of the product. The product packaging will include a statement with a working U.S. customer service telephone number and email address at which customers may contact the Company. If the Reseller fails or refuses to ship such returned product to the Company, then the Reseller shall not be entitled to such credit or refund as described in subsection (9.3) above.
9.5. The Company further warrants that the product(s) will be manufactured in accordance with the product specifications and any other functional or other descriptions related to the product(s) and applicable federal, state, and local laws, orders, and regulations. The Company agrees that in the event certain materials comprising the product(s) are no longer available, the Company will provide prior written notice and, upon approval by the Reseller, make the approved substitutions for certain materials. The Company agrees that it will provide prior notice to the Reseller in the event it changes any of its manufacturing or other processes that may affect its covenants and agreements hereunder.
10. Return Authorization
10.1. We recognize that the Reseller may from time to time order the incorrect item and desire to replace it with the correct one. Should an item need to be exchanged, the Reseller must contact the Company within 5 (Five) business days upon receipt of the shipment to arrange for an exchange. All non-defective returns of product must be in new condition with all original packaging material. If the product shows signs of use or misuse, this may invalidate the exchange. Returns may be subject to a restocking fee between 15% to 25%.
10.2. A Return Merchandise Authorization (RMA) number must be obtained from the Company prior to returning any merchandise for exchange. Any packages shipped to the Company without a Company-issued RMA will be refused.
10.3. The Reseller is responsible for all inbound and outbound shipment costs involved in the exchange of any non-defective merchandise.
10.4. Return of damaged product, whether under warranty or out of warranty, or other non-working product must receive an RMA number prior to return. Any packages shipped to the Company without a Company-issued RMA will be refused.
11. Reseller Responsibilities
11.1. Marketing. The Reseller shall use its best efforts to market, advertise, and otherwise promote and sell the Products.
11.2. Employee Training. The Reseller shall ensure that any of its employees who are responsible for the marketing, sales, and technical support of the Products have proper skill, training, and background to enable them to provide such marketing, sales, and technical support service in a competent and professional manner.
11.3. Repair and Evaluation Materials. International Distribution Resellers shall maintain adequate spare units, spare parts, and evaluation units necessary to provide marketing, sales, and technical support service to Distribution Reseller’s customers.
11.4. Support. The Reseller shall be responsible for all first-level support for the Reseller’s customers (e.g., initial response, problem identification and problem resolution) and shall include all relevant contact information on the Reseller’s website. The Reseller agrees to provide and make available a sufficient number of trained personnel to provide such support for the Reseller’s customers.
11.5. Sales Forecast. International Distribution Reseller shall provide the Company with a quarterly sales forecast, the format of which shall be mutually agreed upon from time to time.
11.6. On-Hand Inventory Report. The Reseller shall provide the Company with a quarterly On-Hand Inventory report of the Company’s Products, the format of which shall be mutually agreed upon from time to time.
11.7. Cooperation. The Reseller agrees to work closely with the Company and use its best efforts to meet the sales goal mutually agreed upon between the Reseller and the Company.
11.9. Indemnify Company. The Reseller shall indemnify the Company from and against all losses, costs, charges, expenses, and/or claims of any nature that may be presented to or against the Company as a consequence of the Reseller’s (or anyone acting by, through, or under it) breach of this Agreement.
12. Confidentiality
12.1. “Confidential Information” is defined as the terms of this Agreement and all business and technical information relating to Reseller or the Company, their parent, subsidiaries or affiliates, including but not limited to marketing strategies, product information (e.g., release dates, launches, specifications), business plans, media/event schedules, product “roadmaps,” customer data, and trade secret information not generally known about Reseller or the Company which Reseller or the Company is required to keep confidential on behalf of a third party.
12.2. Each party agrees that, except as required in order to exercise the rights and obligations set forth in this Agreement or as authorized in writing by the owner of the Confidential Information, it will: (i) preserve and protect the confidentiality of the Confidential Information as it protects its own like information; (ii) not disclose to any third party the source, content or substance of the Confidential Information or make copies of Confidential Information therefor; and (iii) be responsible for each of its employees, and its subcontractor’s and distributor’s employees who work or have access to the materials which are the subject of this Agreement.
12.3. Information shall not be considered to be Confidential Information if it (i) is already or otherwise becomes publicly known through no act of the disclosing party; or (ii) is authorized in writing by the disclosing party to be disclosed, copied or used; or (iii) can be shown by the recipient by its written records to have been independently developed by it without use of the Confidential Information; or (iv) is lawfully received from third parties subject to no restriction or confidentiality; or (v) is disclosed by the disclosing party to third parties without restriction on subsequent disclosure. In the event that a party becomes legally compelled to disclose all or any portion of the Confidential Information, the disclosing party will provide the receiving party with prompt notice thereof so that the disclosing party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving party will furnish only that portion of the Confidential Information that is legally required and the receiving party will exercise its best efforts to obtain reliable assurance that confidential treatment will be afforded such portion of the Confidential Information.
13. Governing Law
This Agreement, and any dispute, claim or controversy between the parties arising out of or related to this Agreement, will be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of laws rules.
14. Entire Agreement
This Agreement supersedes any prior or contemporaneous agreements or understandings between the parties related to this subject matter. This Agreement constitutes the entire agreement between the parties related to this subject matter, and any change to its terms must be in writing and signed by the parties.
15. Company Representations and Warranties
The Company further represents, warrants and covenants to Reseller the following: (i) the product(s), the Company trademarks and other materials or information provided by the Company, and the manufacture, sale or use of the product(s), do not and will not violate or infringe upon or misappropriate any copyright, patent right, right of publicity or privacy (including, but not limited to, defamation), trade secret, trademark, or other right or interest of any third party; (ii) the Company has obtained all necessary releases, consents, assignments and similar instruments in order to perfect its rights in the product(s) and the Company trademarks.
16. General Provisions
16.1. Notice. Any notices required or permitted shall be given to the appropriate Party at the address specified above, or at such other address as the Party shall specify in writing, and shall be effective upon actual receipt.
16.2. Assignment. The parties may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise, without the prior written consent of the party, which shall not be unreasonably withheld.
16.3. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
16.4. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
16.5. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
16.6. Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.
16.7. No Waiver. A party’s failure to exercise or delay in exercising any right, power, or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
16.8. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event that such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.
17. Retention of Intellectual Property Rights: The Reseller agrees that Ikan or, in applicable instances, Ikan’s Licensor, retains the entire right and title to the intellectual property relating to the Products including, but not limited to, all patents, trademarks and copyrights anywhere. In partial consideration for granting Reseller the rights to sell Products hereunder, the assistance of Ikan, the price discounts provided, and other valuable consideration, Reseller agrees not to, and is not authorized to, duplicate or otherwise manufacture or arrange for such duplication or manufacture, of the hardware or software in the Product at any time during or after the term of this Agreement and agrees not to challenge the validity of the patents, trademarks or copyrights during the term hereof, or otherwise impair the same or any other Intellectual Property of Ikan. No transfer of Ikan technology or Intellectual Property occurs by virtue of this Agreement and the sale of the Products to Reseller. No royalties are paid or due by either party under this Agreement.
18. Trademarks and Trade names: Ikan does not grant any rights in, and the Reseller acknowledges that it shall have no right to or interest in now or hereafter, any trademarks and/or trade names owned, used or claimed now or in the future by Ikan, and Reseller will not apply in any country for any trademark applications regarding any marks that Ikan claims or is using as a trademark anywhere. Reseller acknowledges Ikan’s sole ownership in the Ikan trademarks, whether marks are registered or not in any relevant domain, and disclaims any interest in them, waiving all right to challenge or claim interest in the marks for any reason during or after the term of this agreement