USA Trade Agreement

PROFESSIONAL HAIR LABS MAP POLICY and RESELLER AGREEMENT

As  the  world’s  leading  adhesive,  scalp  treatment  manufacturer  and  supplier  for  the  hair replacement  industry,  Scientific Cosmetix LLC, DBA Professional  Hair  Labs, Inc. (“PRO LABS”)  is  focused  on  maintaining  high  margins  for  our  reseller,  wholesaler  and  distribution  network.    In  recognition of  the  investment  in  time  and resources  required  for  our  high-quality  resellers,  wholesalers  and distributors  to  provide  the  level  of  Reseller  service  and  product  knowledge  expected  from our  Resellers,  Professional  Hair  Labs  is  committed  to  enforcing  policies  which allow  our  resellers  to maintain  profit  margins  through  the  sale  of  our  products.    Professional  Hair  Labs  has  an  established  Minimum  Advertised  Price  (MAP)  Policy  and Authorized Reseller Account Agreement  that  an  Authorized  Reseller  must  follow  for  the  advertising  and  marketing  of  Professional  Hair  Labs  products.  All  Professional  Hair Labs  Authorized  Resellers  must  agree  to  the  terms  and  conditions  of  the  following  MAP / Policy and Reseller Account Agreement.

HOW TO CONFORM TO MAP

MAP standards will be applied to the sales and marketing of all PRO LABS products.

MAP pricing for all Professional Hair Labs products can be found on your current price list. All advertised prices must be at or above MAP for all PRO LABS products if a MAP price has been established by PRO LABS. If a price is listed in an advertisement it must be at or above MAP.

Resellers are NOT required to list prices in their advertising. Other statements such as “call for price” or “call for quote” are acceptable and permitted.

Resellers are also responsible for ensuring their PRO LABS pricing is at or above MAP on all internet search engines.

Resellers are free to set the actual resale price of any product as long as it is at or above MAP price given the most recent publication of the price list.

“Free” offers that coincide with the offering of PRO LABS products such as “Free Shipping or Handling,” “0% Sales Tax” among others are permissible under the MAP Agreement. Price matching policies, however, are NOT permitted and all PRO LABS products must be offered at the MAP or higher.

PRO LABS’ MAP policy for all our products apply to advertising placements, including but not limited to: print ads (inserts, magazines, newspapers, catalogs, mail order catalogs, etc.), broadcast (radio and TV), direct mail, faxes, internet placement with third parties (banner ads, broadcast emails, destination pages, third-party sites), internet placements on resellers own website, and any flyers, posters or coupons.

From time to time, PRO LABS may permit resellers to advertise MAP Products at prices lower than the MAP price. In such events, PRO LABS reserves the right to modify or suspend the MAP price with respect to the affected products for a specified period of time by providing advance notice to all resellers of such changes.

Displayed price must NOT be below the current MAP.

No online sales unless URL is authorized by PRO LABS.

No trans-shipping of product to other retailers/dealers unless they have agreed to our MAP Agreement (no unauthorized broker deals). Reseller agrees to sell to the end-user only.

Distributors, Wholesaler, Retailers and Salons working with PRO LABS are required to provide a signed MAP agreement from any dealer selling PRO LABS products. Unauthorized dealers should not be sold to or provided a feed from any distributor whatsoever.

Failure to comply with the above MAP policy may result in termination and a forfeiture of your Pro Labs dealer status.

Placing an order constitutes your assent to this MAP Agreement and that you have read and agree to abide by all Pro Labs Minimum Advertised Price Policy.

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Authorized Reseller Account Agreement

PRO LABS offers goods bearing certain Trademarks, as defined below, (“Product”) for sale to retailers that have been authorized by PRO LABS to make purchases of such Product (“Resellers.”) The applicant identified on the PRO LABS Authorized Reseller Form (the “Applicant”) has submitted to PRO LABS an Authorized Reseller application (the ” Application”) requesting that we accept it as a Reseller and/or permit it to purchase and Resell Product.  Applicant agrees that, if approved as an Authorized Reseller, each order it submits to PRO LABS for the purchase of Product (each, an “Order”) will be governed by the terms and conditions in effect at the time that Order is submitted (“the Terms and Conditions”) and that those Terms and Conditions are incorporated in this Application. The Terms and Conditions that are current as of November 5, 2018 are outlined below. The completed Application (if approved by PRO LABS) shall be referred to as “the Account Agreement” and the Account Agreement, together with the Terms and Conditions, may be referred to as “this Agreement”). In this Agreement, Applicant (if approved) is referred to as “Reseller”.

1. TERMINATION: This Account Agreement may be terminated at any time by either party, with or without cause, upon written notice to the other party. The notice will be effective (a) immediately, if termination is for cause, and (b) ten (10) days after receipt, if termination is without cause. Upon termination (i) Reseller will no longer place orders or purchase Product on credit, for cash or otherwise; and (ii) PRO LABS may cancel or terminate any Order whether or not it had previously been accepted in writing and (iii) PRO LABS will not in any event ship any Product or otherwise accept any Orders, whether or not the Orders were placed prior to the effective date of the termination, and (iv) the following provisions of this Account Agreement will survive: Termination; Personal Certification of Reseller’s Representative; Security Agreement; and Restriction on Assignment. Upon termination, the terms, conditions and representations herein shall remain in full force and effect with respect to all Orders accepted by PRO LABS prior to the date of termination. In addition, the following provisions of the Terms and Conditions of Sale will survive expiration or termination of this Agreement: Reseller Covenants; General Restrictions; Reseller’s General Representations, Warranties and Obligations; Trademarks; Limited Remedy; Disclaimer of Implied Warranties; Limitation on Damages and Actions; Confidentiality; Severability/Waiver/Construction; Attorney’s Fees/Governing Law/Forum Selection; Indemnification; and any other provision that, by its nature, is intended to continue in effect following termination of the relationship.
2. PERSONAL CERTIFICATION OF RESELLER’S REPRESENTATIVE: The individual executing the Application and the Terms and Conditions on behalf of Reseller certifies in his or her individual capacity that: (a) he or she is authorized to do so on behalf of Reseller; and (b) that to his or her knowledge after reasonable investigation, the contents of and other data submitted with the Application accurately represent Reseller’s business, prospects as of the date reflected in that information; and (c) there has been no material change in Reseller’s business, prospects or condition between the dates reflected in that information and the date shown.
3. RESTRICTION ON ASSIGNMENT: Reseller will not assign this Agreement, or any right conferred in this Agreement. A change of control of Reseller, by stock sale or gift, by merger, by operation of law, by contract, or otherwise, will be deemed an assignment for purposes of this Section. Any purported assignment of this Agreement will be void; the successor entity will not be an authorized PRO LABS Reseller unless it has (a) submitted a new application; and (b) been approved by PRO LABS, in its sole discretion, as a new Reseller; and (c) executed an account agreement in the then-current form.
4. AMENDMENT: No modification of this Agreement (including the Terms and Conditions of Sale) will be binding against PRO LABS unless it is reflected in a written instrument that: (a) expressly refers to the provision(s) of this Agreement to be amended; (b) provides the full text of the amendment; and (c) is signed by an authorized representative of PRO LABS.
5. APPROVAL:

• THIS APPLICATION WILL HAVE NO FORCE OR EFFECT UNTIL APPROVED BY PRO LABS.
• RESELLER IS NOT AUTHORIZED TO SELL PRO LABS PRODUCT AT ANY RETAIL OUTLET OR (IN THE CASE OF APPROVED INTERNET SALES) ON WEBSITE OTHER THAN THAT OR THOSE APPROVED BY PRO LABS.
• APPROVAL OF THIS APPLICATION IS APPROVAL FOR PRODUCTS BEARING PRO LABS TRADEMARKS ONLY.

 

 

Terms and Conditions of Sale

PRO LABS offers certain goods bearing PRO LABS Trademarks (as defined below) (“Product”) for sale to retailers that have been authorized by PRO LABS to make purchases of such Product.  By submitting an order to PRO LABS (each, an “Order”), Reseller agrees that such Order will be governed by the terms and conditions of sale in effect at the time the Order is submitted (“the Terms and Conditions”). The Terms and Conditions that are current as of November 5, 2018 are set forth below.

1. ORDERS: Orders submitted by Reseller are offers and do not form binding contracts unless and until they have been accepted by PRO LABS. The preparation of a purchase order by PRO LABS, the submission by Reseller of a purchase order to PRO LABS, or the acknowledgement or confirmation by PRO LABS of receipt of a purchase order shall not constitute PRO LABS’s acceptance of that Order. PRO LABS may, in its sole discretion, accept all or any part of an Order or substitute comparable Product for the items that were ordered. PRO LABS will be deemed to have accepted an Order, or part of an Order, only if and when PRO LABS ships the Product. PRO LABS may at any time refuse to ship Product for any reason, even if PRO LABS has received payment for the applicable Order and/or has confirmed that Order on our website or otherwise. PRO LABS will in its sole discretion determine which of PRO LABS’s products are made available to Reseller for Orders, and determine how to allocate Product among Reseller and PRO LABS’s other Resellers. Accordingly, PRO LABS reserves the right to discontinue product lines and to make changes in goods offered at any time. Unless Reseller complies with the Section of the Agreement regarding returns, Reseller will be deemed to have accepted those substitute goods on the terms outlined in PRO LABS’s orders. PRO LABS may cancel an Order at any time because the Order contains an incorrect price, requests Product that Reseller is not authorized to sell, or for any other reason, even if PRO LABS has acknowledged or confirmed that Order or has received payment for that Order. In the latter case, PRO LABS will, at its election, either refund the payment or credit Reseller’s account. Any Order that conflicts with or that includes provisions (other than item and quantity) in addition to these Terms and Conditions will have no force or effect to the extent it is inconsistent or includes additional terms. PRO LABS will be entitled to accept any Order and to rely on any other written or telephonic request or notice given by a person that appears to be an employee or agent of Reseller. Each Order will be subject to and governed in all respects by (a) these Terms and Conditions, and (b) if applicable, Reseller’s credit application (where applicable) and account agreement. PRO LABS has no obligation to accept Orders; as stated in Section 19, either party may terminate their relationship at any time.
2. PRICES: PRO LABS may correct typographical or other errors in pricing, may reduce or cancel any discounts previously offered to Reseller, and may change its prices at any time. Each Order will be confirmed at the prices prevailing at the time that Order is fully recorded into PRO LABS’s central ordering system. Nothing contained herein shall obligate Reseller to resell the Product at any particular price or on any specific terms and conditions notwithstanding suggested retail prices published by PRO LABS, if any.
3. TERMS OF SALE: Reseller will pay for all Product by the date specified on PRO LABS’s invoice, or if none is specified, within 30 days after the date of that invoice. Any sum not paid when due is subject to a service charge of 1.5% per month or the maximum rate permitted by law. The amount reflected in each PRO LABS invoice will be deemed to be an account stated unless Reseller disputes the amount of that invoice in writing within 30 days after the date that invoice is due. Reseller will pay the undisputed portion of each invoice. PRO LABS has the right to apply payments it receives from Reseller to any of Reseller’s invoices and to disregard Reseller’s instructions to apply payment to any specific invoice. In the event Reseller is indebted to PRO LABS or to any PRO LABS affiliate, that debt may be offset against credits otherwise owing to Reseller to reduce or eliminate the credit. For all international Resellers, Reseller will pay for all Products upon order by bank wire or any other instruction provided by PRO LABS. Products may be subject to taxes, customs duties and fees levied by the destination country (“Import Fees”). Reseller shall be responsible for any and all fees associated with the transfer of the Product, including but not limited to applicable shipping and Import Fees.
4. SHIPPING; RISK OF LOSS; TITLE: PRO LABS will ship Product FCA, the PRO LABS Distribution Center or other shipping point. PRO LABS is not responsible for any loss resulting from any delay in shipping or failure to ship.
5. RETURNS: Product that was shipped in accordance with the specifications in the Order is not returnable unless PRO LABS has authorized the return, in writing, prior to the return shipment. If Reseller wishes to return Products, Reseller may submit to PRO LABS a request for return; provided, however, that PRO LABS will not issue any refunds or apply any credits except where (1) the Product being returned was either (a) defective or (b) not comparable to the items that were ordered; or (2) the return was approved by PRO LABS in writing and the Product was delivered to PRO LABS in the same condition that it was received. In either case, no credit will be issued if the return request was received by PRO LABS thirty days or more after delivery of those Products to Reseller. If PRO LABS issues a credit, as described above, the amount of the credit will be the net price actually paid by Reseller, as reflected in the applicable invoice. Product sold as close-outs, irregulars, seconds or B-grades may not be returned; such sales are final. Reseller will retain title and risk of loss until receipt by PRO LABS at the designated return destination. Restocking fees may apply. Any items that are returned without PRO LABS’s approval will be disposed of by PRO LABS unless Reseller prepays shipping costs for their return to Reseller.
6. RESELLER’S COVENANTS:
7. The following applies to Resellers that are approved to sell Product at one or more physical store locations (a “brick and mortar” store).

STORES – Except as expressly permitted below, or when otherwise approved by PRO LABS in writing, Reseller will not (a) sell Product under any store name or at any physical store location other than those approved by PRO LABS; (b) sell Product other than to retail consumers physically present at such store location who are purchasing for their personal use and not for resale; or (c) accept orders or sell Product through the Internet, e-mail or any other electronic channel, except that Reseller may advertise Product through those channels to create or enhance consumer awareness of Product performance features and/or indicate the availability of Product at an authorized store location so long as Reseller complies with Section 9 below. Reseller will at all times provide clean, modern and adequate retail outlet(s) necessary for the proper merchandising and selling of Product.

1. The following ONLY applies to Resellers that are approved to sell Product on a website.

INTERNET SALES –Reseller is authorized to sell Product to consumers via the Internet only from the website or websites identified in the Application or otherwise approved by PRO LABS in writing (the “Authorized Website(s)”) and to deliver that Product only to consumers with mailing addresses in the approved country, its territories and possessions.

(a) The Authorized Website(s) will not be co-branded with the name or other trademarks of any other person or entity.

(b) The Authorized Website(s) will not link to, or provide data feeds to, any transactional website, or permit any transactional website to link to the Authorized Website(s). For purposes of this Section 6B(b), a “transactional website” means a shopping portal, online marketplace, or other site which either (i) is capable of accepting orders from consumers, or (ii) creates the perception that orders are accepted on the site, even if the consumers are in fact redirected to other websites for order placement. The term “transactional website” excludes websites which aggregate images and information about merchandise without conducting sales transactions.

(c) Reseller will not (i) permit any fulfillment house or any other third party to fill consumer orders placed through the Authorized Website(s); or (ii) use certain trademarked terms, as designated by PRO LABS, in metadata; or (iii) purchase certain trademarked terms, as designated by PRO LABS, as Internet search terms; or (iv) use any PRO LABS trademark in any domain name or URL address.

7. GENERAL RESTRICTIONS: Reseller will not directly or indirectly: (a) sell, consign or otherwise transfer Product (i) outside the approved country (and, if a “brick and mortar” store, other than at the approved physical store location or locations to which it was shipped); or (ii) to another retailer, or to an e-tailer, distributor, or broker; or (iii) to another retailer, or to a broker or distributor, or to any other person under circumstances where it knows or should know, based on the circumstances of the transaction, that the Product is intended for resale or will likely be resold; or (b) purchase or sell, offer to sell, or distribute (including at no cost), counterfeit PRO LABS goods; or (c) purchase authentic PRO LABS goods from any third party; or (d) purchase any PRO LABS Product from, or sell or offer to sell Product on behalf of or for the account of, any other third party; or (e) if PRO LABS sets a launch date for a particular PRO LABS Product, sell that Product prior to the date and time stated by PRO LABS; or (f) collect or use any sensitive personal data about consumers other than in compliance with industry best practices for security standards, and applicable law.
8. RESELLER’S GENERAL REPRESENTATIONS, WARRANTIES AND OBLIGATIONS:

(a) Reseller represents and warrants, and each time Reseller submits an Order, Reseller will be deemed to have represented and warranted, that (i) it wishes to purchase Product solely for business purposes and not for personal, family or household purposes; and (ii) the most recent financial information provided by Reseller is true, accurate and complete as of the dates indicated in that information and that there has been no material adverse change in Reseller’s business, prospects or financial condition since those dates.

9. TRADEMARKS: Reseller acknowledges PRO LABS’s sole ownership of and exclusive right, title and interest in and to the name “PROFESSIONAL HAIR LABS,” the PRO LABS logo design and all other trademarks owned by PRO LABS or its affiliates (“the PRO LABS Trademarks.”) Reseller recognizes that the PRO LABS Trademarks possess substantial goodwill and agrees that it will not use or display PRO LABS Trademarks in a manner that would disparage or damage them, or represent that it has any ownership in, or attempt to license, the PRO LABS Trademarks. All goodwill associated with Reseller’s use of the PRO LABS Trademarks will be owned exclusively by PRO LABS. Reseller will comply with PRO LABS’s latest trademark usage guidelines, which PRO LABS may provide and circulate from time to time, as well as any other policies governing the use of (i) PRO LABS logos and other trademarks, and (ii) product images and other copyrighted materials. Upon request by PRO LABS, Reseller will submit to PRO LABS, for its review, any public statements about PRO LABS or advertising materials bearing PRO LABS Trademarks, Product images, or Product descriptions. If PRO LABS does not approve such materials in writing, within five business days, the materials shall be deemed rejected and Reseller shall cease any use of the rejected materials. Reseller will not use any marks confusingly similar to the PRO LABS Trademarks or use the PRO LABS Trademarks in combination with other trademarks. Reseller will notify PRO LABS in writing of any infringement or improper use of the PRO LABS Trademarks that comes to its attention. Reseller acknowledges and agrees that the PRO LABS Trademarks and the PRO LABS reputation for quality are extremely valuable to PRO LABS, and that PRO LABS does not authorize Reseller to sell or otherwise distribute any damaged or defective PRO LABS Product. Accordingly, Reseller agrees that PRO LABS Product which may be damaged or defective, for any reason, shall be, at PRO LABS’s sole election, either returned to PRO LABS or disposed of according to PRO LABS’s instructions. PRO LABS and its agents shall have the right to witness such destruction.
10. LIMITED REMEDY; DISCLAIMER OF IMPLIED WARRANTIES: If any Product is defective, PRO LABS’s sole and exclusive liability to Reseller will be, at PRO LABS’s election, if the defect is material, to either (a) replace that defective Product or (b) refund the amount Reseller paid PRO LABS for that defective Product. AS BETWEEN RESELLER AND PRO LABS, PRO LABS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
11. LIMITATION ON DAMAGES AND ACTIONS: PRO LABS WILL NOT BE LIABLE FOR ANY LOSS OF PROFIT, INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES SUFFERED OR SUSTAINED BY RESELLER OR ANY OTHER PERSON. ANY ACTION (OTHER THAN FOR FAILURE TO PAY FOR GOODS DELIVERED) MUST BE COMMENCED WITHIN ONE YEAR FROM THE EARLIER OF THE DATE OF DELIVERY OF THE PRO LABS PRODUCT OR THE DATE OF THE ORDER GIVING RISE TO THE CLAIM. IN NO EVENT WILL PRO LABS’S LIABLITY TO RESELLER EXCEED, FOR DEFECTIVE PRODUCT, THE AMOUNT RESELLER PAID PRO LABS FOR THE PRODUCT GIVING RISE TO THE CLAIM, AND FOR ALL OTHER CLAIMS, THE AMOUNT RESELLER PAID PRO LABS WITHIN THE THREE MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. These limitations will apply regardless of whether the legal theory of liability for damages arises under contract, tort (including negligence and strict liability), or any other theory.

 

12. MODIFICATION: PRO LABS may at any time, in PRO LABS’s sole discretion, modify its Terms and Conditions of sale. Each Order will be governed by the Terms and Conditions in effect at the time Reseller submits that Order. Accordingly, Reseller will review the then-current version of the Terms and Conditions (available on our website, in the catalogue, or by request from PRO LABS) before placing each Order.
13. CONFIDENTIALITY.
14. Non-Disclosure. Reseller acknowledges that it may have access to information owned or controlled by PRO LABS or PRO LABS’s Affiliates, disclosure of which would cause substantial or irreparable harm to PRO LABS (“Confidential Information.”) Confidential Information includes the PRO LABS’s marketing plans, information regarding future releases of PRO LABS Product, and any other non-public material disclosed to Reseller or to which Reseller gains access. Reseller shall protect PRO LABS’s Confidential Information by using the same degree of care with respect to such information that it would exercise with its own confidential information or trade secrets, but in any event no less than reasonable care. Reseller shall make Confidential Information available only to those employees of Reseller who need to know the information in connection with Reseller’s business, and shall not disclose Confidential Information to any third party.
15. Publicity Restrictions. Reseller will notify PRO LABS. Reseller will not hold itself out as a representative of PRO LABS in any interview or statement, whether or not it is recorded, and whether or not it is intended for such publication.
16. Idea Submission. If Reseller chooses to submit to PRO LABS or share with PRO LABS any business plans, product or marketing ideas, or other materials, Reseller agrees that (i) PRO LABS is not subject to any restrictions in using such materials; Reseller hereby grants to PRO LABS an irrevocable license to use such materials, without compensation to Reseller; and (ii) PRO LABS is under no obligation to use such plans, ideas, or other materials, or to commercially exploit them in any territory.
17. SEVERABILITY\WAIVER\CONSTRUCTION: If a court of competent jurisdiction determines that any provision of the Agreement is invalid or unenforceable for any reason, that determination will not affect any other provision unless enforcement of the remaining provisions would be grossly inequitable under the circumstances or would frustrate the primary purpose of the Agreement. A party’s delay or failure to enforce or insist on strict compliance with any of the provisions of the Agreement will not constitute a waiver or otherwise modify the Agreement, and a party’s waiver of any right related to the Agreement on one occasion will not waive any other right, constitute a continuing waiver or waive that right on any other occasion. Reseller has had the opportunity to consult with its attorney in connection with these Terms and Conditions and the rest of the Agreement and to have the Agreement reviewed by its attorney; therefore, no rule of construction or interpretation that disfavors PRO LABS or that favors Reseller will apply to its interpretation.
18. ATTORNEYS’ FEES\GOVERNING LAW\FORUM SELECTION: Reseller will pay all costs, collection agency fees, expenses, reasonable attorney fees (whether incurred prior to, at trial or on appeal) incurred by PRO LABS in connection with the collection of any past due sums. The Agreement, and all disputes arising out of the Agreement or out of the relationship between PRO LABS and Reseller, will be governed by the laws of the state of Florida. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY. Reseller irrevocably consents to the jurisdiction of the state and federal courts located in the state of Florida in connection with any action arising out of or in connection with the Agreement and waive any objection that such venue is an inconvenient forum. Reseller will not initiate an action against PRO LABS in any other jurisdiction. PRO LABS may bring an action in any forum.
19. FORCE MAJEURE: If it becomes impossible for either Reseller or PRO LABS to perform its obligations under the Agreement as a result of fire, flood, earthquake, or other natural disaster, or any other event beyond that party’s reasonable control, that party’s performance may be delayed for the duration of the force majeure event, except that nothing in this Section 16 will excuse Reseller from its payment obligations.
20. RESTRICTION ON ASSIGNMENT: Reseller will not assign any right conferred herein by PRO LABS without the prior written consent of an authorized PRO LABS representative. A change of control of Reseller by stock sale or gift, merger, operation of law, by contract, or otherwise, will be deemed an assignment for purposes of this Section. Any attempted assignment or delegation by Reseller will be void. PRO LABS may grant, withhold or condition its consent to assignment in PRO LABS’s sole discretion. If PRO LABS authorizes an assignment or delegation, that authorization will not release Reseller from any of its obligations under the Agreement unless (a) the authorization expressly releases Reseller; (b) the assignee or delegate agrees in writing to be bound by the Agreement; and (c) any agreement between Reseller and the assignee or delegate states that PRO LABS has the right to enforce Reseller’s rights against the assignee or delegate.
21. SET-OFF: In the event Reseller is indebted to PRO LABS or to any PRO LABS affiliate, that debt may be offset against credits otherwise owing to Reseller to reduce or eliminate the credit.
22. TERMINATION: Nothing in these Terms and Conditions shall be construed to imply that Reseller is required to place Orders or that PRO LABS is required to accept Orders. Upon termination of the parties’ relationship, the terms, conditions and representations herein shall remain in full force and effect with respect to all Orders accepted by PRO LABS prior to the date of termination. Section 6 (Reseller Covenants); Section 7 (General Restrictions); Section 8 (Reseller’s General Representations, Warranties and Obligations); Section 9 (Trademarks); Section 10 (Limited Remedy; Disclaimer of Implied Warranties); Section 11 (Limitation on Damages and Actions); Section 13 (Confidentiality); Section 14 (Severability/Waiver/Construction); Section 15 (Attorney’s Fees/Governing Law/Forum Selection); Section 22 (Indemnification) and any other provision that, by its nature, is intended to continue in effect following termination of the relationship, shall survive.
23. RELATIONSHIP: The relationship of PRO LABS and Reseller established by the Agreement is that of vendor-purchaser and nothing contained herein shall be construed to create a partnership, joint venture, employment or any other relationship.
24. ENTIRE AGREEMENT: The Agreement contains the entire agreement and understanding between the parties with respect to its subject matter and supersedes prior and contemporaneous oral and written agreements, commitments and understandings concerning that subject matter.
25. INDEMNIFICATION: Each Party (the “Indemnifying Party”) will indemnify, defend, and hold the other Party, its respective shareholders, officers, directors, administrators, managers, personnel, successors and assigns (each, an “Indemnified Party”) harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys’ fees, that arise out of or relate to (a) the gross negligence, willful misconduct or fraud of the Indemnifying Party; (b) the breach of the Indemnifying Party’s obligations under this Agreement; (c) the breach of the Indemnifying Party’s representations or warranty obligations; (d) the failure by the Indemnifying Party to comply with any applicable laws, rules and regulations; and (e) any payments, compensation, damages, or other amounts, however characterized or determined, to a third party, which the Indemnified Party has reimbursed or may be obligated to pay as a result of any of the foregoing or any other breach of this Agreement by the Indemnifying Party. For purposes of this section, the acts or omissions of a Party’s employees, consultants, subcontractors, agents and representatives shall be deemed the acts or omissions of that Party.