NORTH AMERICA DEALER AGREEMENT
The Terms & Conditions and MAP Policy (“MAP”) outlined in this document (collectively the “Terms”) applies to all Dealers of Velasa Sports, Inc. d.b.a. Sparx Hockey Products (“Products”). Dealers should familiarize themselves with this document. All Dealers should understand that Sparx Hockey (“Sparx”) has the right to select and manage its dealer network and strategy. Changes to the Sparx Hockey dealer network may occur at any time at the sole discretion of Sparx. Updates to this document can be found at www.sparxhockey.com/dealerterms. Dealer recognizes that the Terms in effect on the date when a Dealer places a new order govern the Terms of that order.
Acceptance of Order. Sparx Hockey shall not be deemed to have accepted any order (or any portion thereof) from a Dealer, with respect to any of Sparx’s products, until such order has been approved by Sparx Hockey and such Products have been delivered by Sparx to the carrier for delivery to Dealer as provided herein. The acceptance by Sparx, of any order for any Product, is based upon the express condition that Dealer agrees to accept and be bound by all of the Terms set forth herein. The Terms set forth herein, and such modifications or additions hereto as may be agreed by Sparx in writing shall constitute the entire agreement and understanding of Sparx and Dealer with respect to the transactions contemplated hereby. Such Terms shall control irrespective of any inconsistent or additional terms and conditions, whether printed or otherwise, set forth in any communication from Dealer to Sparx, or which otherwise would be deemed established by any course of dealing, course of performance or usage of trade, unless otherwise provided herein or specifically agreed to in writing by Sparx Hockey.
Order Confirmation; Invoices. Upon receipt of an order for the Products, Sparx Hockey may, at its option, acknowledge such receipt by forwarding to Dealer an "Order Acknowledgment." Any such Order Acknowledgment shall not be deemed to constitute Sparx Hockey’s acceptance of the order or any portion thereof; such acceptance shall only occur as provided in the Acceptance of Order section above. To the extent that any terms and conditions set forth in any such Order Acknowledgment, or in any invoice delivered by Sparx Hockey to Dealer in connection with any sale of the Products hereunder, are different from, inconsistent with or in addition to the Terms provided herein, such terms and conditions, together with those herein which are not different from or inconsistent with those in such Order Acknowledgement or invoice, shall control and constitute the entire agreement and understanding of the parties with respect to the transactions contemplated hereby.
Sale By Dealer. Unless otherwise agreed to in writing by Sparx Hockey, Dealer shall resell the products only to consumers from those locations authorized by Sparx in writing. For purposes hereof, "consumers" is defined to mean individuals, who purchase, use, and dispose of products for personal, family, or household purposes with no intent for resale. Any sale or distribution of Sparx products beyond the direct-to-consumer model (retail) that Sparx has approved for a specific Dealer location, may be deemed “Re-Distribution”. Re-Distribution is a violation of these Dealer Terms & Conditions.
Dealers shall not purchase Sparx products from any source other than Sparx Hockey. Dealers shall not purchase or sell unauthorized Sparx products. Dealer expressly acknowledges and agrees that the damages suffered by Sparx Hockey for a breach of these Terms & Conditions are impossible to estimate or quantify at this time, and that such harm and damages suffered by Sparx Hockey are likely to be irreparable. Therefore, Dealer agrees that liquidated damages shall be awarded to Sparx Hockey in the amount of Five Hundred US Dollars (US$500) for each product sold or purchased by Dealer in violation hereof.
Minimum Advertised Price Policy. Sparx Hockey provides this basic Minimum Advertised Price Policy (MAP), which applies to all Dealers selling Sparx products. The Company has determined that price erosion for our premium Products will have an adverse effect on Sparx Hockey’s broad distribution network and on Sparx’s ability to reach consumers in all markets.
The Minimum Advertised Price for any Sparx products shall not be less than the current Manufacturer’s Suggested Retail Price (MSRP) as published on the Sparx websites (www.sparxhockey.com) and listed on the corresponding price sheet for all products. MAP pricing is established by Sparx and may be adjusted at any time at our sole discretion.
MAP restrictions will apply to any form of communication, regardless of the nature or purpose, including product order forms, internet shopping carts, discount offers, catalogs, websites, etc. If discount offers are included in any communications, Sparx Hockey products must be excluded from such promotions, or must be priced to meet or exceed the MAP for such products. MAP applies only to advertised prices and does not apply to the price at which the products are actually sold or offered for sale to an individual consumer within the dealer’s retail location or over the telephone. Sparx Hockey Dealers remain free to sell these products at any price they choose. Any exceptions to this policy must be achieved in writing from Sparx Hockey. Intentional or repeated failure to abide by this policy will result in termination of a Dealer relationship. It is under the sole discretion of Sparx whether or not to provide prior notice or issue warnings before taking any action under this policy.
E-Commerce Guidelines. Dealers are prohibited from selling Sparx products over the Internet unless explicitly authorized in writing by an authorized representative of Sparx. If authorized to sell online, Dealers shall not market, advertise, or offer to sell or fulfill orders for any Sparx Hockey products from any co-branded, affiliate, or portal websites or locations (including but not limited to Amazon, Walmart.com, Jet, Craigslist, Gumtree, Alibaba or other similar sites and auction websites such as eBay) without direct authorization from Sparx Hockey.
Search Marketing. Dealer agrees to not compete against Sparx Hockey in online search marketing and will refrain from bidding on, paying for or utilizing in any manner Sparx Hockey branded key words to promote dealer’s business. Sparx Hockey branded keywords include, but are not limited to “Sparx Sharpener,” ‘Sparx Hockey,” “Sparx Skate Sharpener,” “Sparx Machine.” Dealer also agrees to refrain from bidding on, paying for or utilizing in any manner search terms that include, but are not limited to, “home skate sharpening”, “home skate sharpener”, portable home skate sharpener”, “at-home skate sharpening” or “at-home skate sharpener” to promote dealer’s business. Sparx Hockey reserves the right to add additional search terms to prohibited key word list at any time during the term of the dealer agreement.
Prices and Payment. Sparx Hockey prices are subject to change, at any time and without notice, and shall be those prices in effect for its products at the time of shipment. Invoices shall be issued before shipment of an order. Unless otherwise agreed in writing, prices are F.O.B. Sparx Hockey place of manufacture and/or distribution of the Products. Dealer shall also pay and be exclusively liable for all costs of shipping, delivery, insurance, and the like from the delivery point. Payment shall be remitted to the address specified on the invoice; remittance stubs shall be included with all payments. Unless otherwise specified, all payments received will be applied firstly to accrued service charges, if any, and then to the oldest unpaid invoices. A $50.00 service charge shall be applied to all returned checks. Discounts shall apply only if all invoices are paid in full by their due dates. All overdue payments shall be subject to an additional interest and service charge calculated at the lower of eighteen percent (18.0%) per annum or the highest rate allowed by applicable law.
If, in the sole judgment of Sparx Hockey, Dealer's financial condition at any time does not justify the commencement or continuance of Sparx Hockey's delivery of the Products hereunder, Sparx may make a written demand for full or partial payment in advance. If Sparx does not receive such payment within thirty (30) days after such demand, Sparx may suspend its performance until such payment is made and cancel all or any part of a Dealer's order. In the event of collections by a third party, all outstanding invoices shall be accelerated and become immediately due and payable regardless of the original due date(s) on the invoice(s). Dealer shall be liable for all costs incurred by Sparx to collect payments due from Dealer, including without limitation attorneys’ fees and collection agency fees. Dealer shall not deduct from any amounts due to Sparx Hockey any part of any amounts owed or alleged to be owed by Sparx Hockey to Dealer or any damages or losses which Dealer may have sustained or allege to have sustained as a result of any breach or alleged breach by Sparx Hockey of any obligation of any kind to Dealer (whether or not arising hereunder or in connection herewith).
Taxes. Prices do not include any tax or other governmental charge or assessment upon the sale, shipment, production, or use of products ordered or sold hereunder. In the event that Sparx is charged for any of the fees listed in this section, Dealer shall be solely responsible for, and shall pay to Sparx Hockey upon demand by Sparx, any such tax, charge or assessment (other than any such tax on or measured by Sparx Hockey's income).
Title and Risk of Loss. Title to the Products supplied shall pass to Dealer when delivered to the carrier, and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to the Products ordered hereunder shall be borne by Dealer.
Cancellation. If Dealer desires to cancel an order, it must request cancellation through its Sparx Hockey Sales Representative; Sparx shall have the right to approve or reject cancellation requests in its sole discretion. If the order has been entered into Sparx’s order system, the request for cancellation must be made at least forty-five (45) days prior to the requested ship date to be considered for approval. Cancellations of 1-15% of the value of the order shall result in loss of original discount; in such event, an appropriate discount based on adjusted volume shall apply. Cancellations of more than 15% of the value of the order may result, in Sparx’s discretion, in the cancellation of the order. In such event, a new order will need to be placed by the Dealer.
Delivery. Sparx shall attempt in good faith to deliver Products in accordance with the instructions set forth herein, or on such other schedule as Sparx may provide to Dealer in any Order Acknowledgment or other response to an order. Delivery shall be by such modes of transport and such carriers as Sparx, in its sole discretion, shall deem appropriate. During any period of shortage of any of the Products, Sparx shall have the right to prorate and/or allocate its supply of such Product among its customers under any orders and contracts in any manner as Sparx may deem appropriate.
Inspection by Customer; Return of Products. Dealer shall carefully examine and check all deliveries of products as they are received and report to Sparx within ten (10) business days of delivery any alleged error, shortage, defect, or nonconformity of any such products (a “Return Request”) in accordance with this Section. If Sparx determines that the Return Request is warranted it will issue a return authorization to Dealer in connection with such Return Request (a “Return Authorization”) and Dealer shall promptly return the Products to Sparx for inspection. Sparx reserves the right to refuse delivery of any Products returned without a Return Authorization. Any failure by Dealer to examine and deliver a Return Request within ten (10) business days after delivery of the Products shall constitute a waiver by Dealer of any claim or right of Dealer against Sparx Hockey arising hereunder or by laws with respect to any such error, shortage, defect, or nonconformity reasonably discoverable by such examination and check. Except for returns due to defect, shortage, error, or non-conformity, returns shall be subject to a 15% restocking fee. Except for returns due to defect, shortage, error, or non- conformity the risk of loss and freight charges to and from Sparx in connection with any returned Products shall be borne by Dealer. Any and all claims by Dealer for damage or loss in transit shall be made by Dealer against the carrier. Sparx shall bear the risk of loss or damage while such returned Products are in Sparx Hockey's possession.
Warranty; Limitation of Liability. Sparx Hockey warrants its Products against manufacturing defect, from the date of purchase by a consumer, for such periods as specified by Sparx Hockey in writing for each specific Product. Sparx Hockey maintains current warranty information and terms for all products at www.sparxhockey.com/warranties. Liability of Sparx Hockey under or in connection with any sale of defective Products shall be limited, at the sole option of Sparx Hockey, to the repair parts required, replacement, or full or partial refund of the purchase price, of any of the Products or parts thereof. The foregoing remedy shall constitute the sole and exclusive remedy of Dealer under or in connection with any sale of the Products. All Products alleged by an end-use consumer to be defective must be returned to Sparx Hockey, together with proof of purchase. Dealer is not authorized to repair or replace any allegedly defective Product returned by a consumer without authorization of Sparx Hockey; Customer must return the Product to Sparx Hockey in accordance with Sparx Hockey’s return procedure.
Except as specifically provided herein, Sparx shall not be responsible or liable for any costs, expenses, or damages in connection with any disposal, removal, repair, or replacement (including any attempts or actions relating thereto) of any allegedly defective Product or Products not returned in compliance with these Terms, and no charge or set off of any kind relating thereto shall be made against Sparx Hockey without prior and specific written approval of Sparx Hockey. IN NO EVENT SHALL SPARX HOCKEY BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS, ANY SALE THEREOF, OR SPARX HOCKEY’S RELATIONSHIP WITH DEALER.
Exclusion of Warranties. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF SPARX HOCKEY EXCEPT AS PROVIDED HEREIN. THIS EXCLUSION MEANS THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY AND NO IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. THIS EXCLUSION ALSO MEANS THAT SPARX GRANTS NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, AND NONE SHALL ARISE OUT OF ANY SALE UNDER THIS AGREEMENT OR OUT OF EITHER PARTY’S CONDUCT.
Seller's Trademarks. Dealer shall have no right to use any of Sparx Hockey’s trademarks or trade name, except solely and directly in connection with the sale or advertising of the Products in connection with the resale of such Products to consumers, provided however, that Dealer is required to comply with Sparx’s policies and any legal requirements regarding the proper usage and display of such trademarks. Dealer shall have no right of any kind in or to any of Sparx Hockey's trademarks or trade names, and Sparx expressly reserves the right to prohibit, or restrict or condition further, in any way Sparx may deem necessary or appropriate, the use by Dealer of any of Sparx's trademarks or trade names.
Modification. Except as expressly provided herein, these Terms may not be modified, terminated, or repudiated, in whole or in part, except in writing executed by an authorized representative of Sparx. Sparx Hockey may, at its sole option, treat any attempted modification, termination or repudiation to which it does not assent in writing as a breach of the entire agreement and recover from Dealer all of Sparx's damages (including without limitation special, indirect, consequential and incidental damages) resulting therefrom or arising in connection therewith.
Cancellation by Sparx. Upon any breach by Dealer or failure by Dealer to comply with any of the Terms, or if Dealer becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature) or becomes the subject of any proceeding under any state, provincial or federal bankruptcy law or other law for the benefit of creditors or relief of debtors or makes any assignment for the benefit of creditors, Sparx shall have the right to immediately cancel or terminate any and all agreements with, or obligations to, Dealer relating to sales of the Products in whole or in such part as Sparx in its sole judgment shall deem expedient, and recover from Dealer all of Sparx’s damages (including without limitation special, indirect, consequential and incidental damages) resulting therefrom or arising in connection therewith.
Waiver and Severability. Sparx Hockey shall not be deemed to have waived any provision hereof, or any breach by Dealer of any provision hereof, unless specifically set forth in writing and executed by an authorized officer of Sparx Hockey, and no waiver by Sparx of any provision hereof or any breach by Dealer hereunder shall constitute a waiver of such provision or breach on any other occasion. The invalidity or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect in any way the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition hereof.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal, substantive laws of the Commonwealth of Massachusetts, USA, without regard to any choice or conflict of law principles and excluding application of the UN Convention on the Sale of Goods. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all other understandings whether oral or written.