Authorized Reseller Terms and Conditions
1. Products. The products covered by these Authorized Reseller Terms and Conditions (including any purchase order referencing these Terms and Conditions, this “Agreement”) are Covid-19 antigen tests under the GoToKnow LLC (the “Company”) brand name (the “Products”). This Agreement shall be effective from and after the date of the applicable purchase order.
2. Grant of Reseller Authority; Independent Contractor. Subject to the terms and conditions set forth in this Agreement, the Company hereby appoints and grants you (“Reseller”) the non-exclusive right to market, promote, distribute, sell and otherwise commercialize the Products solely in the United States of America (the “Territory”), and Reseller accepts such appointment and grant on the terms and subject to the conditions set forth in this Agreement. Reseller agrees not to solicit, initiate, consummate or fulfill any sales of Products outside the Territory, or to parties who may not lawfully purchase and use the Products. Reseller shall not appoint resellers or sell Products to retailers, distributors or other third parties who intend to resell the Products without the prior written consent of the Company. The parties are and shall be at all times independent contractors, and nothing in this Agreement or the parties’ actions at any time shall be deemed to create any agency relationship between the parties, including without limitation any partnership or joint venture. Reseller must clearly identify itself as an entity separate from the Company.
3. Reseller’s Duties. Reseller shall:
3.1 Only sell Products in accordance with all Product labeling, approvals and materials provided by the Company from time to time and in accordance with laws, rules, regulations, guidelines and orders, including without limitation the terms and conditions of any applicable Emergency Use Authorization issued by the U.S. Food and Drug Administration (“FDA”) applicable in the Territory.
3.2 Maintain customer Complaint files and promptly, and in no event later than two (2) business days after becoming aware of any Complaints or potential Medical Device Report Events (each as defined below) regarding any Product, notify the Company thereof, and provide such information and assistance as the Company reasonably requests; cooperate in effecting any voluntary or government-mandated correction, removal, or recall of the Products, at the direction of the Company. Reseller will promptly refer to the Company, and will not otherwise respond to, all questions or requests for information about the Products made by any person to Reseller that are beyond the scope of the product labeling (as defined below), Product regulatory approval or authorization, or other Product information provided by the Company. “Complaint” means any written, electronic, or oral communication that alleges deficiencies related to the identity, quality, durability, reliability, safety, effectiveness, or performance of a Product sold by Reseller under this Agreement, including for avoidance of doubt any complaints about usability or deviations from the established performance characteristics of a Product. “Medical Device Report Event” means any event related to a Product sold by Reseller under this Agreement that may be reportable under 21 C.F.R. Part 803, including where such Product has or may have caused or contributed to a death, or Serious Injury, or has allegedly involved a Product malfunction that would be likely to cause or contribute to a death or Serious Injury if the malfunction were to recur. “Serious Injury” means an injury or illness that (a) is life threatening, (b) results in permanent impairment of a body function or permanent damage to a body structure, or (c) necessitates medical or surgical intervention to preclude permanent impairment of a body function or permanent damage to a body structure.
3.3 Maintain (i) complete and accurate records for such periods as may be required by applicable law, rule, regulation, or order but for no less than three (3) years following the sale of a Product; and (ii) sales records, and provide all necessary information to the Company upon reasonable request, including without limitation customer contact details, batch or lot numbers, defective or returned Products, control number and quantities and any other information required by applicable law, rule, regulation, or order such that the Products may be traced for purposes of a correction, removal, or recall.
3.4 Provide written notice to the Company within two (2) business days after (i) any unannounced visit by a governmental authority to or inspection of any Reseller facility at which any Product is handled, processed, stored, or sold by or on behalf of Reseller, or at which any records concerning any Product are maintained by Reseller (a “Reseller Facility”), (ii) receipt of notice of any proposed visit by a governmental authority to or inspection of any Reseller Facility, or (iii) receipt or notice of any written or oral inquiries, actions, warning letters, notices of violation, seizure, or injunction conducted, sent, initiated, pending or threatened by any governmental authority concerning any Reseller Facility, or otherwise relating to any Product. In such event, thereafter (i) the parties shall consult with one another in an effort to arrive at a mutually acceptable response(s), and (ii) Reseller shall promptly furnish to the Company any correspondence or other documentation issued by or provided to any governmental authority in connection with such visit, inquiry, or other enforcement action.
3.5 Not re-configure, alter or otherwise affect the intended function, appearance or configuration of any Product; sell and distribute Products only in their original containers with the original labels, inserts, and packaging provided by the Company; not alter any package or label with any label or other modification that results in eliminating or covering the Company’s or any third party’s trademarks or information, including without limitation name, address, telephone number and lot number, except for those changes required by applicable law, any of which will be made with the prior written approval of the Company.
3.6 Store, handle and transport Products at all times (i) in compliance with all applicable laws, (ii) in an environment adequate to ensure Product integrity, in compliance with the requirements set forth in the authorized labeling and any other applicable regulatory requirements and approvals, and (iii) in compliance with the Company’s written guidelines and instructions (if any).
3.7 Not sell or attempt to sell any Product that it knows or reasonably should know may be defective or was not stored, handled or transported properly.
3.8 Only use the Authorized Marks (defined below) to market, promote, distribute and sell the Products in the Territory, and in accordance with this Agreement. Reseller is hereby granted a limited, non-exclusive, right and license (without the right to sublicense, except to approved sub-resellers, if any) to use the Authorized Marks solely for purposes of marketing, promoting, advertising, distributing and selling the Products pursuant to this Agreement. Reseller agrees that such license is automatically terminated and revoked upon the termination of this Agreement. Reseller will immediately cease using Authorized Marks upon written notice from the Company and upon termination of this Agreement. Subject to the foregoing, Reseller shall have the right to refer to and advertise itself as an “GoToKnow Authorized Reseller” of the Products in the Territory during the term of this Agreement. “Authorized Marks” means the trademarks, service marks, trade names, names, brands, logos, symbols and other proprietary designations provided by the Company for use hereunder.
3.9 Ensure that any approved agents and sub-resellers of Reseller comply with Reseller’s obligations under this Agreement.
3.10 Comply with all laws, rules and regulations applicable to the Products, including without limitation the sale and marketing thereof.
4. Reseller’s Representations, Warranties and Covenants. Reseller hereby represents, warrants, covenants and agrees that (a) this Agreement is a legal and valid obligation binding upon Reseller and enforceable in accordance with its terms; (b) neither Reseller nor any of its affiliates has been debarred by the FDA, is subject to any similar sanction of other governmental authorities in the Territory, and, to its knowledge, neither it nor any of its affiliates has used, or will engage, in any capacity, in connection with this Agreement any person who either has been debarred by such a regulatory authority, or is the subject of a conviction described in Section 306 of the Food Drug and Cosmetics Act (“FDCA”); and Reseller shall inform the Company in writing promptly if it or any person engaged by it or any of its affiliates who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FDCA, or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Reseller’s knowledge, is threatened, relating to the debarment or conviction of such party, any of its affiliates or any such person performing services hereunder or thereunder; (c) it shall not reverse engineer, re-configure, alter or otherwise affect the intended function, appearance or configuration of any Product or Product packaging; (d) it shall not export any Products or related technical information outside the Territory; (e) it shall not alter, erase, deface, or overprint any copyright, patent, trademark, or other notices of proprietary rights included by the Company on the Products, Product packaging, or advertising, promotional and informational materials supplied by the Company; and (f) neither it, nor its shareholders, members, directors, officers, employees, agents or other representatives who may be involved in the performance of this Agreement, are governmental officials (as defined below) of or otherwise employed by (as an employee, consultant or in any other capacity) any government in the Territory.
5. Company’s Representations, Warranties and Covenants. Company hereby represents, warrants, covenants and agrees that (a) this Agreement is a legal and valid obligation binding upon Company and enforceable in accordance with its terms; and (b) it has not been debarred by the FDA, and is not subject to any similar sanction of other governmental authorities in the Territory. Company shall inform the Reseller in writing promptly if it is debarred or is the subject of a conviction described in Section 306 of the FDCA.
6. Returned Goods Policy. Reseller shall not be entitled to a refund for any unsold Products, except as provided in this Section 6. Reseller shall have forty-eight (48) hours following delivery of the Products to Reseller to notify the Company in writing of its rejection of such Products due to any suspected defect or non-conformity. In the event that Reseller does not so notify the Company within such 48-hour period, such Products will be deemed accepted by Reseller, without recourse. Within thirty (30) days of receipt of the Company’s receipt of notice from Reseller, and reasonably requested supporting information (including Product samples), the Company will inform Reseller in writing whether it accepts Reseller’s claims. Company may either refund or replace, in its sole discretion, Products determined by Company, in its sole discretion, to be defective or non-conforming. Such refund or replacement will be Reseller’s sole remedy for defective or non-conforming Products.
7. No Implied Warranties; Limitation of Liability. To the maximum extent permitted by applicable law, the Company disclaims any and all implied warranties of merchantability or fitness for a particular purpose with respect to the Products. No representation or warranty, including but not limited to statements of quality, suitability for use, non-infringement, or performance, whether made by employees of the Company or Reseller, shall be considered a warranty by the Company for any purpose or create any liability of the Company. Reseller acknowledges that, because the Company is not the manufacturer of the Products, the Company provides no express warranty to Reseller regarding the Products. Under no circumstances shall the Company’s liability to Reseller arising out of or in connection with this Agreement, whether in contract, tort or otherwise, exceed the amounts paid by Reseller to the Company in the six (6) months preceding any claim. In no event shall the Company be liable for special, incidental, consequential, indirect, exemplary or punitive damages, including without limitation damages resulting from loss of use, profits, business or goodwill, whether or not the Company has been advised of the possibility thereof.
8. Indemnification. Reseller shall indemnify, defend and hold harmless the Company, the Company’s affiliates, and its and their respective directors, officers, employees, contractors, agents and representatives, from and against any and all losses (including without limitation reasonable attorneys’ fees and other costs and expenses of litigation) (“Losses”) to which such persons become subject as a result of any third party claims (“Claims”) arising out of or related to Reseller’s (i) breach of this Agreement, (ii) grossly negligent or intentional acts or omissions, (iii) willful misconduct or fraud or (iv) Reseller’s or a customer of Reseller’s use, handling, storage, disposition, or any other exploitation of the Products that is not consistent with the EUA for the Product. No compromise or settlement of any Claim may be effected by Reseller without the Company’s prior written consent.
9. Miscellaneous. This Agreement sets forth the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements not incorporated herein. Neither this Agreement nor any provision hereof may be altered, amended, modified or waived in whole or in part, except by an agreement in writing duly executed by both parties hereto. The failure of any party hereto to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce such provision. No waiver of any breach of, or non-compliance with, this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance. If any of the provisions of this Agreement are determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provisions shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect. Termination of this Agreement shall not release either party from any obligation or liability incurred prior to the effective date of termination, including without limitation payment, financial and adverse events reporting, and records retention obligations for Products delivered or sold under this Agreement. Sections 2, 3, 4, and 6-10 shall also survive termination of this Agreement. This Agreement shall be construed and governed by the laws of the Commonwealth of Massachusetts without regard to conflicts of laws principles. All litigation arising from or relating to this Agreement shall be exclusively filed in, prosecuted before, and resolved by the state and federal courts located in Boston, Massachusetts. Each party irrevocably consents to the jurisdiction of such courts. Neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by Reseller without the Company’s prior written consent. This Agreement is binding upon the parties hereto, and their respective successors and assigns. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All notices under this Agreement shall be effective only when delivered in writing to the address of the parties set forth in the purchase order to which this Agreement applies, or to such other address of which a party is notified in compliance with this sentence. Each party shall bear its own expenses in the performance of this Agreement.
10. Confidentiality. This Agreement shall be the confidential information of each party, and neither it nor the price of the Products may be disclosed, except to affiliates, prospective investors and as may be required by applicable law.