Wholesale Disclaimer and Terms

This Agreement (the "Agreement") is made today, by and between EZ Stud Out Enterprise Inc. (hereinafter referred to as “EZ Stud Out”), with a principal place of business at 9300 Boul Henri-Bourassa E, Montréal, QUEBEC, H1E 2S4, CANADA and a Corporation (hereinafter referred to as “DISTRIBUTOR”).  The terms and conditions contained in this Agreement shall apply in whole to both DISTRIBUTOR and EZ Stud Out (hereinafter collectively referred to as "Parties"), except where noted. 

WHEREAS, EZ Stud Out, a manufacturer and supplier of automobile repair and servicing hand-operated tools and tools kit for use in the field of motor vehicle engine maintenance, has developed proprietary plates and underlying technology allowing for the easy replacement of broken exhaust manifold studs and welding accessories (the "Products"), as such may be amended at a later date during the term of this Agreement;

 

WHEREAS, DISTRIBUTOR wishes to acquire a non-exclusive, non-transferable right to advertise, promote, market and resell the Products in Canada and/or the United States (the “Territory”), through agreed upon distribution channels;

 

WHEREAS, DISTRIBUTOR declares it has the knowledge, experience, ability and financial capability to perform the obligations herein;

 

WHEREAS, EZ Stud Out has agreed, on the basis of DISTRIBUTOR’s representations herein, to grant the DISTRIBUTOR certain reselling rights, as further described hereunder;

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties desire to enter into this Agreement and hereby agree as follows:

 

1. The Preamble shall be considered as integral part of this Agreement

 

1. APPOINTMENT

 

Subject to the terms and conditions set forth herein, EZ Stud Out hereby grants DISTRIBUTOR a non-exclusive, non-transferable, non-sublicensable, limited right during the term of this Agreement advertise, promote, market and resell the Products in the Territory, solely to end-Customers and in agreed upon distribution channels, and use EZ Stud Out Trademarks in the Territory in connection with marketing, selling and distributing the Products; all in accordance with the terms set forth herein.

 

Sales Outside Territory. DISTRIBUTOR shall not actively solicit sales of or promote the Products outside the Territory without the prior written consent of EZ Stud Out. Should DISTRIBUTOR be approached by any third party from outside the Territory for the purchase of Products, DISTRIBUTOR shall forthwith notify EZ Stud Out and shall either refer such party to EZ Stud Out or take an order from such party, all as shall be directed by EZ Stud Out in writing and at its sole discretion.

 

 

2. RELATIONSHIP

 

The relationship between the parties shall be that of buyer and seller. Nothing contained in this Agreement, and no action taken by EZ Stud Out or DISTRIBUTOR pursuant hereto, shall be deemed to constitute EZ Stud Out and DISTRIBUTOR as a partnership, an association, joint venture or other entity, nor shall this Agreement be construed to constitute DISTRIBUTOR as an employee or agent of EZ Stud Out or cause EZ Stud Out to be responsible in any way for the debts or obligations of DISTRIBUTOR, nor shall either EZ Stud Out or DISTRIBUTOR have the authority to bind the other in any respect whatsoever. DISTRIBUTOR shall be solely responsible for discharging all obligations arising in connection with the operation of DISTRIBUTOR’s business, including, without limitation, licenses, permits, certificates and all other documentation and information required, compliance with, all laws, rules and regulations relating to income tax, sales tax, social security, unemployment compensation and worker’s compensation.

 

3. PRODUCT PURCHASE AND DELIVERY

 

DISTRIBUTOR shall initiate orders online through the wholesale products page from this website with all information necessary for shipment. The parties agree that the terms and conditions contained in this Agreement shall prevail over any terms and conditions of any such purchase order, acknowledgment form or other instrument, except that specific commercial terms (prices, delivery terms, etc.) set forth in a purchase order shall, if they are accepted by EZ Stud Out, prevail over any conflicting commercial terms in this Agreement. DISTRIBUTOR’s purchase orders shall constitute binding commitments to accept the number and type of Products stated therein, in accordance with the terms and conditions of this Agreement. Any requested modifications to an accepted purchase order shall be submitted by DISTRIBUTOR to EZ Stud Out in writing and EZ Stud Out shall either accept or reject such requested modifications at its sole discretion.

Risk of loss with respect to the Products shall pass to DISTRIBUTOR at the Delivery Point, and title to the Products shall pass upon full payment thereof to EZ Stud Out. If delivery by at EZ Stud Out is not anticipated within the time frame set forth in the applicable purchase order, at EZ Stud Out shall notify DISTRIBUTOR of such delay. EZ Stud Out may withhold shipment of Products due to an unpaid balance in DISTRIBUTOR’s account, or dependent on a requirement that DISTRIBUTOR pay prior to Delivery, if it determines that there is a reasonable risk of non-payment.

Cancellation Policies. Orders may be partially or entirely cancelled prior to shipment only if (i) EZ Stud Out declares bankruptcy or is unable to deliver the Products in a timely manner, (ii) either party has given a notice to terminate the Agreement, (iii) DISTRIBUTOR does not comply the payment terms for such order.

Inspection by DISTRIBUTOR. DISTRIBUTOR agrees to receive, inspect and accept shipments made pursuant to each purchase order. DISTRIBUTOR shall inspect the Products upon delivery at the Delivery Point and notify EZ Stud Out of any discrepancies in the list of materials shipped, or of any defective, damaged or leaking Products which would be evident from physical inspection. Products delivered or offered for delivery in a damaged condition shall be rejected and returned to EZ Stud Out with such documentation as may reasonably be required by EZ Stud Out, pursuant to Section 6 below. DISTRIBUTOR’s failure to notify EZ Stud Out, upon delivery at the Delivery Point of any visible deficiencies shall be deemed as an acceptance by DISTRIBUTOR of the Product.

 

Product Discontinuance and Changes. EZ Stud Out shall have the right, in its sole discretion, to modify, or improve any or all of the Products, and shall have the right to discontinue specific Products. EZ Stud Out shall use commercially reasonable efforts to provide at least ninety (90] days prior written notice to DISTRIBUTOR prior to discontinuing a Product.

 

4. PRICE AND PAYMENT TERMS

 

Product pricing. Price per unit as ordered by DISTRIBUTOR to EZ Stud Out.

See wholesale products page for reference.

 

No Contingencies. DISTRIBUTOR’s payment obligations hereunder are not contingent in any way upon receipt of payment by DISTRIBUTOR from Customers or any third party. DISTRIBUTOR shall be solely responsible for any financial loss suffered as a result of any failure to receive payment or reimbursement for Products sold to Customers.

 

Taxes. Product prices shall exclude any taxes, import duties, sales tax or similar taxes or duties including, without limitation, withholding, customs, excise, sales, use, value-added and property taxes levied by any country upon EZ Stud Out or the Products, as the result of any manufacturing, sale, delivery or use of any Product sold hereunder. DISTRIBUTOR shall be responsible for the payment of all such taxes or duties.

 

5. MARKETING

 

Packaging. Labeling & Re-Labeling Prohibition. DISTRIBUTOR shall distribute Products with all original packaging, labeling, warranties, disclaimers and Documentation intact, as provided to it by EZ Stud Out and in accordance with this Agreement. DISTRIBUTOR shall not re-label any Product.

General Marketing Practices. DISTRIBUTOR shall at all times act in furtherance of the best interest of EZ Stud Out and at no time do, cause or permit to be done, publish or say, any information, act, or thing from whatever source, which may be detrimental to the best interest and/or business reputation of EZ Stud Out. DISTRIBUTOR acknowledges and represents that it may not make any commitment, warranty, or binding obligation on behalf of EZ Stud Out and that in performing its activities under this Agreement it shall not make any false or misleading representations with respect to the Products and/or EZ Stud Out.

 

6. RETURN POLICY

 

Subject to EZ Stud Out’s approval, all defective Products returned to EZ Stud Out will be replaced and shipped prepaid to DISTRIBUTOR or replaced subject to the existing manufacturer's warranty. Any Products received by DISTRIBUTOR are only returnable with EZ Stud Out’s consent at its sole discretion. DISTRIBUTOR agrees to pay: (i) a 20% restocking fee for all returned packaged Products, provided they are not defective in the reasonable judgment of EZ Stud Out. DISTRIBUTOR agrees to follow the applicable policies of EZ Stud Out prior to return.

 

7. RESTRICTIONS ON RESALE.

 

DISTRIBUTOR agrees that it shall only sell the Products to end-Customers, and not in any instance re-sell Products to other retailers, including without limitation individuals holding themselves out as retailers on online storefronts such as eBay and Amazon. DISTRIBUTOR agrees not to modify any Products in any way, including without limitation changing packaging or adding its name or logo to the packaging, other than the placement of retail sales tags, SKU numbers, eDistributor.

 

8. INDEMNIFICATION

 

It is agreed that EZ Stud Out will not indemnify and/or hold DISTRIBUTOR harmless from any loss, liability, damage, cost or expense (including reasonable outside attorneys’ fees), to the extent arising out of the supply of Products to Distributor in accordance to the terms of this Agreement, including any claims, demands, suits, actions naming DISTRIBUTOR by any purchaser of product for infringement of intellectual property rights in connection with such Product.

 

DISTRIBUTOR agrees to indemnify and hold EZ Stud Out harmless from any loss, liability, damage, cost, or expense (including reasonable attorneys’ fees), to the extent arising out of any claims, suits, actions, or proceedings (including governmental actions) concerning any act or omission of DISTRIBUTOR with respect to DISTRIBUTOR’s sale, advertisement, promotion and/or distribution of Products under this Agreement, the inaccuracy or breach of any warranty or representation made by DISTRIBUTOR under this Agreement, or the nonfulfillment or breach by DISTRIBUTOR of this Agreement.

 

9. WARRANTY/LIMITATION OF LIABILITY

 

Warranty Program: All Products carry a different Replacement Warranty. EZ Stud Out will be treating all warranty requests case by case through the provisions of pictures of Products. Without derogating from the above. EZ Stud Out will replace defective, damaged or leaking Products, provided however that: (a) any such defective, damaged or leaking Products must be provided to EZ Stud Out in its original packaging as proof of claim; (b) said defect, damage or leakage are not caused by noncompliance with the Instructions for Use; (c) Products were sold to Customers prior to the expiration date of the Products, as evidenced Distributor’s written records; and (d) Distributor will receive an RMA (Returned Merchandise Authorization) from EZ Stud Out prior to returning it; and (e) Distributor will bear all costs associated with, or derived from, such replacement.

 

 

 

EXCEPT FOR THE LIMITED WARRANTY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EZ STUD OUT MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER VIOLATION OF RIGHTS. IN NO EVENT SHALL EZ STUD OUT BE LIABLE TO BUYER OR ANYONE ELSE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, USE, OR GOODWILL ON A CONTRACT, TORT, OR OTHER LEGALTHEORY, REGARDLESS OF WHETHER EZ STUD OUT OR A EZ STUD OUT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EZ STUD OUT'S LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE OF PRODUCTS SOLD. IN NO EVENT SHALL EZ STUD OUT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY PERFORMANCE, NON- PERFORMANCE, BREACH OR TERMINATION OF THIS AGREEMENT.

 

10. INTELLECTUAL PROPERTY RIGHTS (“IPR”)

 

IRP. Shall mean any and all of EZ Stud Out (a) patents, patent applications, and patent rights; (b) EZ Stud Out copyright and copyright registrations; (c) rights relating to the protection of EZ Stud Out confidential information; (d) EZ Stud Out trademarks and trade names; and (e) EZ Stud Out industrial designs; whether unregistered, applied for or registered in the applicable countries, evidenced by or embodied in or related to the Products.

 

No representations. EZ Stud Out does not make any representation and warranties to DISTRIBUTOR as to the absence of potential infringement of third-party intellectual property rights.

 

Limited-License. Subject to the terms and conditions of this Agreement, EZ Stud Out hereby grants to DISTRIBUTOR a limited, non-exclusive, non-transferable, royalty-free, revocable license, without the right to sublicense, only in the designated sales Territory, to use, display, advertise, market, promote, offer to sell and sell the Products embodying the IPRs during the Term of this Agreement, including  EZ Stud Out’s documentation, trademarks, trade names, service marks and logos, solely for purposes of marketing and promoting the Products to Customers in the Territory and solely in connection with marketing materials approved by Company.

 

No Transfer of Title or Goodwill. EZ Stud Out shall retain the sole and exclusive ownership of all the IPR in the Products and all goodwill associated with DISTRIBUTOR’s use of EZ Stud Out trademarks and Products.

Modifications. To the extent that DISTRIBUTOR or its employees, contractors or subcontractors participate in enhancements, derivatives, new versions, or improvements to the Products or Documentation, DISTRIBUTOR, on behalf of itself and its employees, contractors and subcontractors, shall and hereby does assign to EZ Stud Out all right, title and interest, including all Intellectual Property Rights, in and to the Modifications.

 

DISTRIBUTOR’s Obligations. DISTRIBUTOR shall, (i) refrain from copying, reverse engineering, disassembling, de-compiling, translating or modifying the Products or any part thereof or granting any other person the right to do so, (ii) not represent that it possesses any proprietary interest in the Products; (iii) not directly or indirectly, take any action to contest EZ Stud Out’s IP Rights or infringe them in any way; (iv) not register, nor have registered or attempt to register, EZ Stud Out trademarks (or which are similar to EZ Stud Out Trademarks); (v) not register or attempt to register any domain name using any of EZ Stud Out Trademarks without prior written consent; and (vi) save for the specific purpose contained in this Agreement, it shall not use EZ Stud Out Trademarks in any manner whatsoever.

 

Notification. DISTRIBUTOR shall promptly notify EZ Stud Out of: (i) any claims, allegations or notification that its marketing, licensing, support or service of the Products may or will infringe the Intellectual Property Rights of any other person; and (ii) any determination, discovery or notification that any person is or may be infringing the Intellectual Property Rights of EZ Stud Out. DISTRIBUTOR shall not take any legal action relating to the protection or defense of any Intellectual Property Rights of EZ Stud Out without the prior written approval of EZ Stud Out. DISTRIBUTOR shall assist in the protection and defense of such Intellectual Property Rights.

11. CONFIDENTIAL AND PROPRIETARY INFORMATION

 

DISTRIBUTOR acknowledges and agrees that it is necessary for EZ Stud Out to protect against the unauthorized use and disclosure of its Proprietary and Confidential Information, as hereinafter defined, regarding EZ Stud Out and its Products. Accordingly, DISTRIBUTOR covenants and agrees that it will not, during the term of this Agreement or at any time following the termination of this Agreement, for whatever reason (whether this Agreement is terminated by EZ Stud Out, by DISTRIBUTOR or by mutual consent), directly or indirectly, engage in or refrain from taking any action which may in any way lead to the disclosure of any Proprietary and Confidential Information regarding EZ Stud Out or the Products to any third party, nor use any Proprietary and Confidential Information for its own benefit.

 

For purpose of this Agreement, the term “Proprietary and Confidential Information” shall be deemed to include all confidential and proprietary information relating to the Products or EZ Stud Out, including, but not limited to, (i) corporate and business information, including contractual arrangements (including the terms of this Agreement), plans, strategies, tactics, policies and resolutions; (ii) any negotiations; (iii) marketing information, including price and discount lists, sales or product plans, strategies or methods; (iv) customers, customer lists, prospects or market research data, including any lists or data developed or prepared by EZ Stud Out or DISTRIBUTOR in performing hereunder; (v) operational information, including trade secrets, control and inspection practices, suppliers and vendors, all information related to the Products, inventions, technical and nontechnical data, techniques, methods of manufacture, machines, equipment, apparatus, molds, tools, dies, drawings, blueprints, experimental or developmental work, photographs, slides, video tapes, compositions, formulas, formulations, processes, and know how; (vi) all copyrights, patents, trademarks, service marks, trade secrets or other intellectual properties utilized by EZ Stud Out; (vii) personnel information, including personnel lists, resumes, personal data, organizational structure and performance evaluations; and (viii) information provided to or obtained in any way by EZ Stud Out regarding another person, corporation or other form of entity which owns in whole or in part EZ Stud Out or which is owned or controlled by EZ Stud Out or under common control with EZ Stud Out (collectively, the “Affiliates”), and which information is proprietary and confidential to the Affiliates which information is hereby deemed to include, without limitation, all of the types of information described in this subparagraph.

 

12. TERM AND TERMINATION

 

Term. This Agreement is effective immediately and expires 12 Months from the initial Product order date (the “Initial Term”), unless terminated by either party.

 

At the end of the Initial Term, this Agreement will be automatically renewed for an additional one (1) year (the “First Renewal Term”) and will be automatically renewed for an additional one (1) year at the end of the First Renewal Term (the “Second Renewal Term”) (each, a “Renewal Term”) (the Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term”), provided that (a) DISTRIBUTOR has performed all of its commitments and obligations under this Agreement to EZ Stud Out’s full satisfaction, (b) the parties agree in writing on the Updated Price List and Minimum Quarterly Sales and Minimum Annual Sales for each Renewal Term, and (c) DISTRIBUTOR has not notified EZ Stud Out in writing of its desire not to renew this Agreement, no later than two (2) months prior to the termination or expiration of the Initial Term or the then-current Renewal Term.

 

Termination for Convenience. Following the Initial Term, this Agreement may be terminated by EZ Stud Out at any time for any reason with ninety (90) days written notice. Said termination shall become effective at the end of the ninety (90) day period.

 

Termination for cause. This Agreement may be terminated: (i) by either party in the event that the other party has committed a material breach of any of its obligations hereunder that has not been cured within thirty (30) days after the breaching party has received notice thereof (in addition to any other remedies available to it by law); or (ii) by EZ Stud Out at its sole and absolute discretion (and with immediate effect), in case of a change in the ownership of the DISTRIBUTOR

 

Termination Upon Bankruptcy. Either party may, at its option, terminate this Agreement and/or suspend its performance upon provision of written notice in the event that: (i) the other party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined or discharged within sixty (60) days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.

 

Consequences upon termination. DISTRIBUTOR shall immediately discontinue all further promotion, marketing and support of the Products. DISTRIBUTOR shall cease all display, advertising and use of all of EZ Stud Out’s Trademarks and will not thereafter use, advertise or display any EZ Stud Out Trademarks.

 

Upon termination of this Agreement: (i) the due date of all outstanding payments shall automatically be accelerated and all such payments shall become immediately due and payable; (ii) all purchase orders or portions thereof remaining un-shipped as of the effective date of termination may be canceled by EZ Stud Out, at its option; (iii) DISTRIBUTOR shall promptly return to EZ Stud Out all Confidential Information and/or any such tangible property representing the disclosed Confidential Information and/or Intellectual Property Rights divulged pursuant to this Agreement and all copies thereof; and (iv) DISTRIBUTOR shall erase/delete any such Confidential Information held by it in electronic form.

 

Inventory upon termination If DISTRIBUTOR has any unsold Products, it shall be allowed to continue selling them in accordance with the terms of this Agreement.

Accrued Rights, Surviving Obligations.  Termination or expiration of this Agreement for any reason shall not release either Party from any obligations that shall have accrued prior to such termination or expiration. Said obligations shall survive the expiration or termination of this Agreement.

 

13. INSURANCE

 

DISTRIBUTOR agrees to obtain and maintain during the term hereof, at its own expense, liability insurance providing protection in amounts which are reasonable and customary and approved by EZ Stud Out (at a minimum, in the amount of $1,000,000 per occurrence / $2,000,000 annual aggregate) applicable to any claims, liabilities, damages, costs, or expenses arising out of any acts or omissions of Distributor in selling, promoting or distributing the Product. Such insurance shall add EZ Stud Out, its directors, officers, agents, employees, assignees, and successors as additional insurers. Within thirty (30) days of the Effective Date, Distributor shall cause the insurance company issuing such policy to issue a certificate to EZ Stud Out confirming that such policy has been issued and is in full force and effect and provides coverage to EZ Stud Out and also confirming that before any cancellation, modification, or reduction in coverage of such policy, DISTRIBUTOR shall give EZ Stud Out ten (10) days prior written notice of such proposed cancellation, modification, or reduction.

 

14. ENTIRE AGREEMENT; SEVERABILITY; WAIVER

 

This Agreement, including all attachments, constitutes the entire agreement between the parties with respect to the subject matter contemplated herein, and supersedes all representations, whether express, implied, oral, or written.

 

Any waiver by either party of any right or remedy hereunder shall be effective only if it is in writing and signed by an authorized representative. No delay or omission by a party to exercise any right related to any breach or default of this Agreement will impair any such right or operate as a waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable for any reason, such determination shall not affect the remainder of this Agreement, and such remainder shall remain in full force and effect.

 

15. AMENDMENTS

This Agreement may not be amended, changed or modified except by a written instrument signed by both Parties.

 

16. FORCE MAJEURE

 

EZ Stud Out shall not be liable for loss, damage or delay caused by strikes or labor difficulties, lockouts, acts or omissions of any governmental authority, insurrection, riot, war or similar hostility, fires, floods, Acts of God, breakdown of essential machinery, accidents, cargo or material shortages, delays in transportation, inability to obtain labor, materials or parts from usual sources or otherwise due to causes beyond the EZ Stud Out's reasonable control. In the event of any such delay, performance will be postponed by such length of time as may be reasonably necessary under the circumstances.

17. APPLICABLE LAW

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec, Canada.

 

18. DISPUTES

 

The Parties agree to make a good faith effort to resolve and settle any dispute or claim arising out of or related to this Agreement, its interpretation, performance, breach, or rescission, promptly by negotiation. Any Party may give the other Party written notice of any dispute not resolved in the normal course of business. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations and; therefore, deemed to be off the record and without prejudice.

 

If the dispute has not been settled pursuant to the foregoing negotiation guidelines, within ninety (90) days of the commencement of such negotiations, or within such other period as the Parties may agree in writing, the Courts of the Province of Quebec, judicial District of Montreal, shall have exclusive jurisdiction over any matters not resolved by negotiation.

19. LANGUAGE

The Parties have expressly requested that this Agreement and any documents or notices related thereto or referred to therein be drafted and executed in the English language.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the day and year first above written.

 

 

EZ STUD OUT ENTERPRISE INC.