Reseller and Distribution Agreement
THIS RESELLER AND DISTRIBUTION AGREEMENT (“Agreement”) is a legal agreement by and between Sense Labs, Inc. (“Sense Labs”) and the party agreeing to this Agreement (“Company”) by selecting the agree box and signing the Agreement on the Sense Labs website. Sense Labs and Company may be referenced herein as “party” or collectively the “parties”.
The parties agree as follows:
1. Scope and Definitions.
“Product(s)” shall mean the product(s) set forth in Exhibit A.
“Territory” shall mean the United States, consisting of the fifty states together with the District of Columbia and Puerto Rico (but excluding any of its other territories).
“Effective Date” shall mean the date on which Company accepts the terms and conditions of this Agreement.
“Termination Date” shall mean the date at which the Agreement terminates.
“End Users” shall mean the resident(s) of the home in which Product(s) are installed.
2. Sale of Products.
Subject to the terms and conditions of this Agreement, Company is authorized to procure Products in volume from Sense Labs or its authorized distributors under this Agreement according to the discount schedule in Exhibit A, and to permit Company to provide Products to consumers within the Territory. Sense Labs has not authorized Company to, and Company agrees not to, advertise or provide Products to consumers outside of the Territory.
3. Term of Agreement.
This Agreement shall be effective on its Effective Date and shall remain in effect through the Termination Date, which will initially be December 31 of the year of the Effective Date.
The Agreement shall automatically renew for successive one-year periods unless either party provides written notice at least sixty (60) days before December 31 of its intention not to renew for the succeeding year. This Agreement may be terminated at any time: (a) by Sense Labs immediately upon written notice to Company in the event of a breach by Company of Sections 2, 4, 5, 6, 7, 8, 9 or 12 of this Agreement; or (b) by Sense Labs or Company, without cause, upon sixty (60) days’ prior written notice to the other party. Any obligation previously incurred shall survive termination or expiration of this Agreement. The provisions of Sections 9, 12 through 16 and 21 shall survive any expiration or termination of this Agreement.
4. Terms of Purchase.
Company shall comply with Sense Labs’ current Program and Purchase Terms as provided in Exhibit B of this Agreement.
5. Company Obligations.
Company shall: (a) display, promote, demonstrate and sell the Products, (b) maintain and stock an adequate supply of Products to satisfy the demand of its customers, (c) check compatibility of the home electrical system before installation, (d) maintain qualified personnel with training and knowledge of the Products, (e) provide quality post-sale support for End Users during installation and activation of the Products, (f) preserve and enhance the reputation and goodwill of Sense Labs and the Products and avoid any illegal or unethical actions, and (g) conduct and maintain at all times its operation in accordance with all applicable laws of the jurisdiction(s) in which it operates.
Furthermore, if Company is activating the Product(s) in an End User’s home, Company will ensure that End User has reviewed and accepted the Sense Terms of Service that must be accepted during the activation process.
6. Company Records.
Company shall maintain complete records of sales made by it, including the dates of the transaction, the name and address of the customer, and the unique serial numbers of Products installed. Monthly or as reasonably requested by Sense Labs, Company will provide a report of inventory and sell-through of Products to End Users. Monthly or as reasonably requested by Sense Labs, Company will provide Sense Labs data sufficient to permit tracking by serial numbers.
7. Product Resale.
Company shall not resell or advertise for resale the Products, on the Internet or otherwise, except as authorized under this Agreement. Company shall not sell or transfer the Products to a third party for resale. Company will not offer a product with a Sense Labs trademark that Company obtained from a source other than Sense Labs.
8. Company’s Use of Sense Labs’ Goodwill and Intellectual Property.
Company recognizes the right, title and interest of Sense Labs in all trademarks, tradenames, service marks, logos, trade dress, copyrights, and other intellectual property used on or in connection with the Products and associated software and services (collectively “Sense Labs Intellectual Property”). Sense Labs grants Company a limited non-exclusive, non-sub licensable license to use the Sense Labs Intellectual Property in marketing and service literature, only in a lawful manner, and only to the extent required by Company to advertise, display, promote, and provide the sale in a quality manner and in accordance with the terms of this Agreement. Sense Labs further grants Company a limited non-exclusive, non-sub licensable license under the Sense Labs Intellectual Property to distribute (without modification) Sense Labs’ software as a component of the Products, only in a lawful manner. The licenses granted in this Section shall automatically terminate upon termination or expiration of this Agreement. Company shall comply at all times with all the obligations of Exhibit C (“Using Sense Labs Intellectual Property”). Except for the licenses expressly granted elsewhere in this Agreement, no licenses or other rights in or to Sense Labs’ patents, copyrights, trademarks, trade secrets, designs, software or services, or any related Sense Labs Intellectual Property, are granted.
9. No Reverse Engineering or Product Modification.
Company shall not modify, make derivatives of, or reverse engineer the Product or any software or services provided by Sense Labs. Company further agrees that it (and its affiliates and subcontractors) shall not, unless elsewhere authorized under this Agreement: (a) gain entry or attempt to gain entry into Sense Labs’ control software or services for the Products or any other software, network, service, or system of Sense Labs; (b) attempt to take or gain control over, or attempt to take or gain access to, the Product or any Sense Labs service or software; or (c) use, control, or attempt to use or control (other than as may be approved in writing and permitted by Sense Labs), the Products with a control service or system other than that managed by or for Sense Labs through an interface authorized or provided by Sense Labs.
10. Product Returns.
Company shall comply with then current Sense Labs Product Return Policy, which is attached in Exhibit D.
11. Product Changes by Sense Labs.
Sense Labs reserves the right at any time to discontinue the production, sale, allocation or distribution of any of its Products, to change the design of its Products or any parts thereof, and to change its service, warranty, price or other policies, without advance notice or obligation to Company of any kind whatsoever. Company agrees that it shall have no claim against Sense Labs or any of its agents or affiliates for failure to furnish such Products, whether or not such Products are of a model, design, or type previously sold.
This Agreement (including its terms), as well as any other confidential information disclosed by Sense Labs relating to its products, pricing, supply logistics, intellectual property and business (collectively “Sense Confidential Information”), are confidential. Company agrees to keep such Sense Confidential Information confidential within its organization and permit its use only on a need to know basis. This obligation of confidentiality shall be in effect from the Effective Date of this Agreement and shall survive the expiration or termination of this Agreement. This confidentiality obligation shall not apply to information that is publicly available through no fault of Company or that must be disclosed under operation of law.
Company shall indemnify, defend and hold harmless Sense Labs, its affiliates, officers, directors, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all third party claims, damages, penalties, fines and claims (including attorney’s fees and costs of settlement), related to or arising out of (i) and occurring as the direct result of Company’s misuse of or modification to the Products, (ii) and occurring as the direct result of Company’s advertising and marketing activities, (iii) the acts or omissions of Company and its employees, representatives, directors, officers, and independent contractors with respect to the Products, and (iv) any breach under this Agreement.
Notwithstanding the foregoing, Company shall not be required to indemnify Sense Labs for any losses, damages, costs, penalties, fines or claims related to Sense Labs’ design or manufacture of the Products, including but not limited to any alleged infringement by Sense Labs of the patent, copyright, trademark or trade secret rights of any third party. Each party will promptly notify the other party upon learning of any claim, action or proceeding arising out of or relating to a breach subject to this indemnity, provided that Sense Labs delay or failure to do so will not relieve Company of any of its obligations under this paragraph. For any claim defended by Company, Sense Labs may choose to be separately represented at its own expense. No settlement may admit liability or bind any Indemnified Party without the Indemnified Party’s written consent.
14. Limitation on Liability.
COMPANY ACKNOWLEDGES AND AGREES THAT SENSE LABS SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT COMPANY MAY INCUR FROM DELAYED SHIPMENT, PRODUCT FAILURE, PRODUCT DESIGN, PRODUCT SELECTION, OR FROM ANY OTHER CAUSE WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), WARRANTY, OR OTHERWISE. IN NO EVENT SHALL SENSE LABS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT IT WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. EXCEPT AS MAY BE SPECIFICALLY STATED HEREIN, SENSE LABS DISCLAIMS ANY AND ALL OTHER WARRANTIES TO COMPANY, ITS CUSTOMERS, END-USERS, AND OTHERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. SENSE LABS’ TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY COMPANY TO SENSE LABS IN THE TWELVE MONTH PERIOD PRIOR TO ANY CLAIM.
15. Injunctive Relief and Other Remedies.
Company acknowledges that its breach or threatened breach of Sections 2, 7, 8 or 12 would result in irreparable injury to Sense Labs. In addition to its other remedies at equity and law, Sense Labs will be entitled to injunctive relief to restrain any such threatened or continuing breach, without being required to post bond or other security. Company specifically understands and agrees that upon any breach by Company of the restrictions set forth in these Sections, Sense Labs may (in addition to seeking injunctive relief) (i) preclude the further sale or provision of Products to Company; (ii) terminate the rights granted to Company in this Agreement; (iii) require the return of any Products provided to Company (subject to refund or partial refund); and/or (iv) suspend or terminate cooperation and support to Company.
16. Liquidated Damages.
For each occasion that Company breaches Section 2 or 7 of this Agreement by engaging in the unauthorized provision of Products, Company agrees to pay Sense Labs, as liquidated damages, an amount equal to the greater of (x) the costs and fees associated with Sense Labs investigation regarding Company’s unauthorized sales; or (y) five times (5x) the MSRP of the Product per unit of Product. The parties agree that these damages are not punitive and are intended to be a reasonable estimate of the damages suffered by Sense Labs in the event of non-compliance. The foregoing damages shall be in addition to any other remedies Sense Labs may have in law or in equity.
This Agreement, and its rights and obligations, shall not be assigned or transferred by either party without prior written authorization of the other party; provided that Sense Labs may assign this Agreement without consent in the event of a merger, a change of control, or a sale of all or substantially all of its assets or business.
18. Amendments and Waivers.
Except as otherwise set forth herein, this Agreement may be amended, waived, or modified only by a written instrument signed by an authorized officer of both parties stating specifically that it is an amendment, waiver, or modification. No waiver of any provision at any particular time shall be deemed a permanent waiver of such provision, or a waiver of any other provision of this Agreement. Failure to enforce a provision shall not be deemed a waiver.Sense Labs may amend any Exhibit in this Agreement or the price list by providing such amended material in writing (including by email) to Company, and any such amendment shall become effective immediately upon delivery of such notice.
19. Entire Agreement.
This Agreement and the attached Exhibits shall constitute the terms and conditions mutually agreed upon in writing by the parties, set forth the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.
20. Independent Contractors.
Sense Labs and Company are independent contractors and neither is an agent or principal of the other. Company shall not describe itself as Sense Labs’ agent.
21. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard for the conflicts of laws rules thereof. Company agrees that all controversies, disputes and claims arising out of this Agreement shall be adjudicated exclusively by a state or federal court of competent jurisdiction within Middlesex County, Commonwealth of Massachusetts, except that a judgment may be enforced in any jurisdiction. The parties irrevocably submit to the jurisdiction and venue of any state or federal court located within the Middlesex County, Commonwealth of Massachusetts, upon service of process made in accordance with the statutes of the Commonwealth of Massachusetts. Each party hereby consents to service being made through the notice procedures set forth in this Agreement and hereby agrees that service of any process, summons, notice or document by registered or certified mail to the respective addresses set forth in this Agreement shall be effective service of process for any suit or proceeding in connection with this Agreement. Any suit between the parties relating to this Agreement, other than for payment of the purchase price of the Products, shall be commenced, if at all, within one (1) year of the date that it occurs.
22. Contract Interpretation.
If any provision (or part thereof) of this Agreement shall be deemed invalid or unenforceable, the remainder of the provisions of this Agreement shall continue in full force and effect to the maximum extend consistent with the intent of the parties.
Notices under this Agreement shall be in writing and shall be deemed given on the day of any confirmed delivery by express courier or telecopy transmission or three (3) business days after mailing. Notices to Company shall be sent to the address provided by Company when the Company agreed to this Agreement, unless a subsequent address is designated in writing by Company. All notices to Sense Labs shall be sent to the attention of its Legal Department to 131 Mt. Auburn Street, Cambridge, MA 02138.
24. Electronic Execution.
The parties hereby agree that they may execute this Agreement using electronic means including the use of electronic signatures by the parties, which the parties agree shall have the full force and legal effect as if the electronic signatures were traditional hand-written signatures. Company acknowledges that it has the ability to retain this Agreement either by printing or saving it. Each signatory agrees that he or she has been authorized and has the authority to enter into the Agreement with an electronic signature on behalf of the applicable party and intends to sign this Agreement by applying his or her electronic signature as indicated.
Products and Pricing Schedule
The following Products are authorized for resale or distribution under this Agreement:
• The Sense Home Energy Monitor
• The Solar Compatible Sense Home Energy Monitor
Company may purchase Products at a discount from the list price published on Sense Labs’ website, according to a separate discount schedule that will be agreed in writing between Sense Labs and Company.
Program and Purchase Terms
Effective October 5, 2016
The pricing and delivery terms set forth herein shall apply only to purchases of Product directly from Sense Labs (and not from a distributor or any other source of Product). Sense Labs retains the right to change its pricing and delivery terms upon notice to Company.
1. Pricing. The price for each Product sold by Sense Labs to Company pursuant to this Agreement shall be in accordance with Sense Labs’ then-current Product Price List, with discounts applied per the discounting schedule in Exhibit A.
2. Taxes. Prior to purchasing any Products, Company, if located in the U.S., shall furnish to Sense Labs a resale certificate and identification sufficient to show Company’s exemption from associated sales tax for Product purchases.
3. Shipping Terms. All shipments shall be made EX-Works Sense Labs’ designated warehouse (or that of an authorized distributor of Sense Labs), freight prepaid. The cost of shipping will be added to orders.
4. Orders. The terms and conditions of this Agreement shall apply to all orders submitted to Sense Labs by Company. Company shall initiate purchases either through a Sense Labs online ordering process, or by submitting Purchase Orders (each, a “PO”) to Sense Labs. If a Purchase Order is used, the minimum quantity for each shipment shall be four (4) units of Product, and orders shall be in multiples of four (4) units. Each PO shall be rejected or accepted by Sense Labs in writing within five (5) business days of receipt by Sense Labs and is subject to credit approval and or adjustment by Sense Labs in its sole discretion. Upon acceptance of such PO in writing, Sense Labs will agree to fulfill that order placed by Company within thirty (30) days, or consistent with the delivery date requested in the PO if such date is more than thirty (30) days after acceptance of the PO. Should Product be backordered, discontinued or otherwise unavailable to ship to meet a requested PO, Sense Labs will advise Company and work with Company to modify the PO, which may (if necessary) include canceling the PO or any portion thereof, adjusting item quantities, or changing the requested ship and/or delivery dates. Any term, provision or condition of any PO inconsistent herewith or in addition hereto shall be of no force or effect.
5. Payment Terms. Payment will be due thirty (30) days from the date of invoice, via wire transfer or other payment methods accepted by Sense Labs at its sole discretion. Any sum not paid by Company when due shall bear interest from the due date to the date of payment, at a rate of 10 percent per annum, or the maximum rate permitted by law, whichever is less. Interest shall be calculated on a daily basis and shall accrue both before and after any judgment.
Using Sense Labs Intellectual Property
Effective October 5, 2016
As an authorized licensee of certain Sense Labs Intellectual Property, you will benefit from the goodwill and inherent value signified by the Sense Labs brand name and our various product trademarks. In addition to being under agreement to use Sense Labs trademarks properly, it is in your best interest to assist in protecting the Sense Labs marks by using them properly in all advertising and promotional materials.
The following guidelines must be followed when using all trademarks owned by Sense Labs. These guidelines are in addition to those provided for print advertising of a particular Product:
- Company shall not use in a manner that purports ownership or register any Internet domain name containing any Sense Labs Intellectual Property, and shall submit to Sense Labs for approval in advance true and complete copies of all World Wide Web pages which might violate the provisions of this Exhibit.
- Company shall not use Sense Labs Intellectual Property or post negative comments on social media venues (such as Facebook, LinkedIn, etc.).
- Company shall not, without express written permission from Sense Labs purchase Sense Labs Intellectual Property through Google’s or Yahoo’s Adwords programs and/or other web service providers’ similar programs.
- The Sense Labs trademarks must be reproduced exactly from artwork provided by Sense Labs.
- There must be no confusion with which entity the customer is dealing. Your company’s name must be the most prominent name on the page. The Sense Labs trademarks may not be the only source identifier on the page. The Sense Labs trademarks may not appear at the top of the page.
- The Sense Labs trademarks must not be used in combination with another
- company mark in such a manner that the marks appear to be joined or associated in any way. Ample space must appear between the two marks to distinguish them as separate entities.
- The Sense Labs trademarks may not be used in a way that will dilute or diminish its value to Sense Labs, such as on others’ goods or in any non-approved form.
- Any use of any Sense Labs trademarks on a web page must adhere to these guidelines.
- A superscript indicating a registered trademark (®) or trademark (™) or service mark (SM) symbol must appear next to all marks in all printed literature. It is critical to adhere to these regulations, as this helps ensure proper legal protection. Please check with your Sense Labs representative for proper trademark superscript designation.
- Any use of a Sense Labs trademark which is not addressed in the guidelines set forth herein, must be approved by Sense Labs prior to its use.
Warranty and Defective Product Returns Policy
Effective October 5, 2016
Sense Labs, Inc. provides a one-year warranty and will accept return of a Sense Labs’ product that fails to conform to the warranty from resellers, wholesalers and installers (each a “Returning Party”) that have been sold to end customers (i.e., not unsold product in inventory) for credit under the terms and conditions below. This Defective Product Returns Policy is subject to modification or termination by Sense Labs in its sole and absolute discretion at any time.
The warranty policy can be found at the Sense Labs website here: https://help.sense.com/hc/en-us/articles/211975338…
1. Return Deadline. Sense Labs will only accept product returns from Returning Party within one-year from the date of delivery from Sense Labs to Company or to End User.
2. RMA. Sense Labs’ products can only be returned with a Return Merchandise Authorization (RMA) number obtained from Sense Labs in advance of returning the product. A RMA number will only cover specified items and quantities authorized for return by Sense Labs. A RMA number will expire 30 days after issuance. Any returns that vary from the authorized items or quantity or are delivered after expiration date of a RMA number may not be eligible for credit, as determined by Sense Labs in its sole discretion.
3. Return Contents. Sense Labs’ products must be returned to the address provided by Sense
Labs and must be accompanied by a RMA number and a description of the specific defect (i.e., reason for return) for the Sense Labs product being returned.
Product Condition and Eligibility
1. Packaging, Documentation and Accessories. A Sense Labs’ product must be returned in its original packaging with all documentation and accessories. If the original packaging or any documentation or accessory is unavailable, Returning Party should include everything in its possession; however, these returns will be subject to additional screening and the failure to submit any item could impact the Sense Labs’ product’s eligibility for credit or could reduce the credit by the value of the missing items.
2. Condition. Upon receipt, Sense Labs will assess the condition of a Sense Labs’ product and determine if: (i) a defect exists in the materials or workmanship of the product, (ii) a defect resulted from the act or omission of Returning Party, or (iii) no trouble found with the product. Sense Labs is the final arbiter of the condition of the product.
3. No Trouble Found. If Sense Labs determines that no trouble is found with more than 10% of Sense Labs’ products returned in a calendar quarter (excluding customer remorse returns), Returning Party may be charged for failure analysis/testing and shipping costs associated with such product, as determined by Sense Labs in its sole discretion.
4. Product Discontinuation. Notwithstanding anything herein, Sense Labs must receive a product within 90 days of the official discontinuation date for a product to be eligible for credit. Sense Labs may discontinue a product in its sole discretion, but will use commercially reasonable efforts to provide notice of discontinuance in advance of the official discontinuation date. The limited warranty provided with a product is not affected by discontinuation.
5. Final Judgment. Sense Labs will in its sole discretion assess the condition of the product and determine whether the product is eligible for either repair, replacement or credit.
Repair and Replacement
1. Repair or Replacement. Repair or replacement may be made with a new or refurbished product or components, at Sense Labs’ sole discretion. If the hardware or a component incorporated within it is no longer available, Sense Labs may, at Sense Labs’ sole discretion, replace the hardware with a similar product of similar or greater function. This is your sole and exclusive remedy for breach of this Hardware Limited Warranty. Any hardware that has either been repaired or replaced under this Hardware Limited Warranty will be covered by the terms of this Hardware Limited Warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired hardware or replacement hardware, or (b) the remaining Hardware Warranty Period.
1. Credit Issuance. Sense Labs will issue a credit for an approved return within 30 days of receipt of the returned product by Sense Labs. No cash will be refunded.
2. Credit Amount. Sense Labs will calculate the credit amount for a Sense Labs’ product based on the lower of the: (i) then-current list price for the product, or (ii) net price actually paid.
3. Products Not Receiving Credit. Returning Party may claim a Sense Labs’ product not receiving credit at its expense if Returning Party makes a request to Sense Labs within 10 days of receiving the credit decision.