Product Use And Purchase Agreement
This Agreement is made between the (“Purchaser”) and DA̅R-X Company, LLC, (“DĀR-X”) an Indiana limited liability company.
1. Products and Price. DĀR-X agrees to, from time to time, provide Purchaser with products from the BRAZILIAN SILK™ by DĀR-X Professional and Retail lines (the “Products”) set forth in Salon Order Forms provided by DĀR-X to Purchaser and while supplies last. All such orders are bound by the terms and conditions of this Agreement and those included in the Salon Order Form. Purchaser agrees to pre-pay DĀR-X according to the terms set forth on the applicable Salon Order Form. For any undisputed amount that is not paid within thirty (30) days after it is due, DĀR-X reserves the right to charge interest at a rate of one percent (1%) per month or the highest rate allowed by applicable law.
2. Shipping. Purchaser agrees to pay all shipping and handling charges associated with delivery of the Products to Purchaser’s facility. All Products are shipped via standard ground rates or within three business days and require signature unless otherwise agreed upon by the Purchaser and DĀR-X.
3. Returns. Purchaser agrees to contact DĀR-X within 14 days of receipt of products. DĀR-X, at its discretion shall determine whether or not to allow returns of any Products. All returns must be authorized by DĀR-X in writing. Should DĀR-X, at its discretion, provide authorization for return of any Product, DĀR-X at its discretion may impose a twenty percent (20%) restocking fee based upon the purchase price of the Products.
4. Product Warranty. The Products are guaranteed for a period of one (1) year from the date of delivery. DĀR-X does not guarantee, warrant or promise to Purchaser or Purchaser’s customers any particular results from use or application of the Products. Only the Products themselves are guaranteed.
5. Purchaser Rights and Obligations.
A. Purchaser desires to benefit from the BRAZILIAN SILK™ by DĀR-X name, trademark(s), copyright(s), press, branding, research, goodwill, and other intangibles (the “BRAZILIAN SILK™ by DĀR-X Intellectual Property”). Purchaser agrees that during the term of this Agreement, it shall use industry standards, best practices and its best efforts to diligently promote and sell the Products. Purchaser agrees to use only the BRAZILIAN SILK™ company logos in a format, color and design provided by and/or approved by DĀR-X in its absolute discretion, in any advertising or promotional materials. Purchaser shall not affix or apply to the Products any trademark or name, logo or emblem, or otherwise remove or tamper with any trademark, name, logo, emblem or other marking affixed or applied to the Products by or on behalf of DĀR-X.
B. Purchaser agrees not to advertise at a discounted price or use the product as a loss leader which is defined as a product sold at a low price to stimulate other profitable sales (ie. Groupons). The minimum suggested retail price is $250.00 (Two Hundred and fifty dollars).
C. From time to time as reasonably requested by DĀR-X, a DĀR-X representative shall be permitted to visit Purchaser’s facility during reasonable business hours to inspect the use and/or display of any DĀR-X product, service, process, logo, name, or advertisement.
D. Purchaser agrees that during the term of this Agreement, it shall only perform the BRAZILIAN SILK™ by DĀR-X treatment according to the instructions provided in DĀR-X training sessions and/or printed materials provided by DĀR-X to Purchaser. Purchaser agrees that it will not allow any personnel to perform the Brazilian Silk™ keratin treatment process unless such personnel has been trained by DĀR-X on the appropriate application of the Brazilian Silk™ process as provided in the DĀR-X training sessions and/or printed materials provided by DĀR-X. DĀR-X may from time to time in its absolute discretion require Purchaser’s personnel to complete additional training through DĀR-X.
6. Authorized Location. Purchaser may not use any Products at any location other than the location(s) listed in the first paragraph of this Agreement.
7. Intellectual Property. Nothing in this Agreement or arising from the granting of authorization to sell and use DĀR-X products shall be construed as conferring any license or granting any right, title or interest in favor of Purchaser, Purchaser’s successor-in-interest or affiliates, or any third-party, of the DĀR-X formula or other Intellectual Property. Purchaser agrees not to attempt to copy, reverse engineer, duplicate or create derivative products of the Products and not to provide Products to any party for such purposes.
8. Agreement Term and Termination. The term of this Agreement shall be five (5) years. Either party may terminate this Agreement at any time by providing the other party with notice. In such a case, this Agreement shall terminate thirty (30) days after the date the notice is received. Sections 3, 4, 6, 7, 8, 9 and 11 of this Agreement shall survive termination of this Agreement and the parties shall continue to be bound by such sections. Additionally, any payments due hereunder shall remain due after termination of this Agreement.
9. Liability and Indemnification. Purchaser, its agent, contractors, subcontractors, associates or other entities acting on behalf of Purchaser each agrees to defend, indemnify and hold DĀR-X and its officers, directors, employees and agents harmless from and against any and all claims, suits, liabilities, damages, costs, or expenses as a result of any services performed by Purchaser, its agents, contractors, subcontractors, associates or other entities acting on behalf of Purchaser. Purchaser agrees that it is the sole responsibility of Purchaser to obtain a waiver from any customer who will be receiving the services from Purchaser.
10. Force Majeure. DĀR-X shall not be liable for any delay or failure to make any delivery (or portions thereof) when due, if occasioned, in whole or in part, by an act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or shortage or failure of supply of materials or labor, or strikes or other labor trouble, unavailability or transportation or any occurrence, act, cause or thing beyond the control of DĀR-X.
11. Miscellaneous. This Agreement is non-transferable and non-assignable by Purchaser without the prior written approval of DĀR-X. This Agreement is the sole and complete agreement between the parties and may not be changed, modified, or discharged except by an agreement in writing signed by both parties. If any provision of this Agreement is held to be illegal, void, or unenforceable, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. This Agreement shall be governed by the laws of the state of Indiana. Any action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought against any of the parties only in any federal or state court located in Indianapolis, Indiana, and each of the parties hereby consents to the exclusive jurisdiction of such courts in any such action or proceeding and waives any objection to venue laid therein. The failure of either party to enforce at any time for any period any provision hereof shall not be construed to be a waiver of such provision. This Agreement may be executed in any number of counterparts (including any facsimile counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
1. Products and Price. DĀR-X agrees to, from time to time, provide Purchaser with products from the BRAZILIAN SILK™ by DĀR-X Professional and Retail lines (the “Products”) set forth in Salon Order Forms provided by DĀR-X to Purchaser and while supplies last. All such orders are bound by the terms and conditions of this Agreement and those included in the Salon Order Form. Purchaser agrees to pre-pay DĀR-X according to the terms set forth on the applicable Salon Order Form. For any undisputed amount that is not paid within thirty (30) days after it is due, DĀR-X reserves the right to charge interest at a rate of one percent (1%) per month or the highest rate allowed by applicable law.
2. Shipping. Purchaser agrees to pay all shipping and handling charges associated with delivery of the Products to Purchaser’s facility. All Products are shipped via standard ground rates or within three business days and require signature unless otherwise agreed upon by the Purchaser and DĀR-X.
3. Returns. Purchaser agrees to contact DĀR-X within 14 days of receipt of products. DĀR-X, at its discretion shall determine whether or not to allow returns of any Products. All returns must be authorized by DĀR-X in writing. Should DĀR-X, at its discretion, provide authorization for return of any Product, DĀR-X at its discretion may impose a twenty percent (20%) restocking fee based upon the purchase price of the Products.
4. Product Warranty. The Products are guaranteed for a period of one (1) year from the date of delivery. DĀR-X does not guarantee, warrant or promise to Purchaser or Purchaser’s customers any particular results from use or application of the Products. Only the Products themselves are guaranteed.
5. Purchaser Rights and Obligations.
A. Purchaser desires to benefit from the BRAZILIAN SILK™ by DĀR-X name, trademark(s), copyright(s), press, branding, research, goodwill, and other intangibles (the “BRAZILIAN SILK™ by DĀR-X Intellectual Property”). Purchaser agrees that during the term of this Agreement, it shall use industry standards, best practices and its best efforts to diligently promote and sell the Products. Purchaser agrees to use only the BRAZILIAN SILK™ company logos in a format, color and design provided by and/or approved by DĀR-X in its absolute discretion, in any advertising or promotional materials. Purchaser shall not affix or apply to the Products any trademark or name, logo or emblem, or otherwise remove or tamper with any trademark, name, logo, emblem or other marking affixed or applied to the Products by or on behalf of DĀR-X.
B. Purchaser agrees not to advertise at a discounted price or use the product as a loss leader which is defined as a product sold at a low price to stimulate other profitable sales (ie. Groupons). The minimum suggested retail price is $250.00 (Two Hundred and fifty dollars).
C. From time to time as reasonably requested by DĀR-X, a DĀR-X representative shall be permitted to visit Purchaser’s facility during reasonable business hours to inspect the use and/or display of any DĀR-X product, service, process, logo, name, or advertisement.
D. Purchaser agrees that during the term of this Agreement, it shall only perform the BRAZILIAN SILK™ by DĀR-X treatment according to the instructions provided in DĀR-X training sessions and/or printed materials provided by DĀR-X to Purchaser. Purchaser agrees that it will not allow any personnel to perform the Brazilian Silk™ keratin treatment process unless such personnel has been trained by DĀR-X on the appropriate application of the Brazilian Silk™ process as provided in the DĀR-X training sessions and/or printed materials provided by DĀR-X. DĀR-X may from time to time in its absolute discretion require Purchaser’s personnel to complete additional training through DĀR-X.
6. Authorized Location. Purchaser may not use any Products at any location other than the location(s) listed in the first paragraph of this Agreement.
7. Intellectual Property. Nothing in this Agreement or arising from the granting of authorization to sell and use DĀR-X products shall be construed as conferring any license or granting any right, title or interest in favor of Purchaser, Purchaser’s successor-in-interest or affiliates, or any third-party, of the DĀR-X formula or other Intellectual Property. Purchaser agrees not to attempt to copy, reverse engineer, duplicate or create derivative products of the Products and not to provide Products to any party for such purposes.
8. Agreement Term and Termination. The term of this Agreement shall be five (5) years. Either party may terminate this Agreement at any time by providing the other party with notice. In such a case, this Agreement shall terminate thirty (30) days after the date the notice is received. Sections 3, 4, 6, 7, 8, 9 and 11 of this Agreement shall survive termination of this Agreement and the parties shall continue to be bound by such sections. Additionally, any payments due hereunder shall remain due after termination of this Agreement.
9. Liability and Indemnification. Purchaser, its agent, contractors, subcontractors, associates or other entities acting on behalf of Purchaser each agrees to defend, indemnify and hold DĀR-X and its officers, directors, employees and agents harmless from and against any and all claims, suits, liabilities, damages, costs, or expenses as a result of any services performed by Purchaser, its agents, contractors, subcontractors, associates or other entities acting on behalf of Purchaser. Purchaser agrees that it is the sole responsibility of Purchaser to obtain a waiver from any customer who will be receiving the services from Purchaser.
10. Force Majeure. DĀR-X shall not be liable for any delay or failure to make any delivery (or portions thereof) when due, if occasioned, in whole or in part, by an act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or shortage or failure of supply of materials or labor, or strikes or other labor trouble, unavailability or transportation or any occurrence, act, cause or thing beyond the control of DĀR-X.
11. Miscellaneous. This Agreement is non-transferable and non-assignable by Purchaser without the prior written approval of DĀR-X. This Agreement is the sole and complete agreement between the parties and may not be changed, modified, or discharged except by an agreement in writing signed by both parties. If any provision of this Agreement is held to be illegal, void, or unenforceable, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. This Agreement shall be governed by the laws of the state of Indiana. Any action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought against any of the parties only in any federal or state court located in Indianapolis, Indiana, and each of the parties hereby consents to the exclusive jurisdiction of such courts in any such action or proceeding and waives any objection to venue laid therein. The failure of either party to enforce at any time for any period any provision hereof shall not be construed to be a waiver of such provision. This Agreement may be executed in any number of counterparts (including any facsimile counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.