PN Medical Reseller Program
This PN Medical, Inc. Authorized Reseller Agreement (the “Agreement”) is hereby entered into by and between PN Medical, Inc. (“PN Medical”) and Seller (“Seller” or “you”) (collectively, the “Parties” and individually, a “Party”). The “Effective Date” of this Agreement is the date this Agreement is accepted by PN Medical after being agreed to by you.
1. Modification of the Terms.
By entering into this Agreement, Seller affirms its agreement to adhere to the terms in the currently effective PN Medical, Inc. Authorized Reseller Policy, or the PN Medical, Inc. Authorized Distributor Policy, as applicable to Seller (the “Terms”). This Agreement supplements, amends, and is deemed incorporated into the Terms. Except as supplemented or amended pursuant to the terms and conditions in this Agreement, the Terms remain unchanged and in full force and effect as written. Unless otherwise defined herein, capitalized terms shall have the same meanings ascribed to them in the Terms.
(a) Seller is an independent contractor engaged in purchasing PN Medical products for resale to its customers. Seller is not an agent or legal representative of PN Medical for any purpose, and has no authority to act for, bind or commit PN Medical.
(b) Seller has no authority to make any commitment on behalf of PN Medical with respect to quantities, delivery, modifications, interfacing capability, suitability of product or suitability in specific applications. Seller has no authority to modify the warranty offered with PN Medical products. Seller will indemnify PN Medical from liability for any modified warranty or other commitment by Seller not specifically authorized by PN Medical.
(c) Seller will not represent itself in any way that implies Seller is an agent or branch of PN Medical. Seller will immediately change or discontinue any representation or business practice found to be misleading or deceptive by PN Medical immediately upon notice from PN Medical. PN Medical’s determination in such matters shall be final and not subject to appeal by Seller.
Seller is expected and encouraged to advertise and promote the sales of PN Medical products through all appropriate media including trade show exhibits, catalogs and direct mailings, space advertising, educational meetings, sales aids, etc. PN Medical must approve all original materials that use PN Medical name or trademarks (aside from Seller modifying existing PN Medical supplied template materials provided to Seller for completion). PN Medical will assist Seller in advertising and promoting PN Medical products in accordance with PN Medical policy.
4. Authorization of Online Sales or Sales to Third Parties for Resale.
Other than websites that may be defined in the Terms as “Permissible Public Websites,” as delineated on the Authorized Reseller Application, the Terms of this Agreement prohibits the sale of Products on any publicly accessible website, online marketplace, mobile application, or other online forum without PN Medical’s prior written consent. Pricing on any public website must adhere to the PN Medical MAP policy. As a material condition of this Authorized Reseller Agreement, Reseller shall be required to obtain a PN Medical approved reseller agreement from any individual or entity it sells PN Medical Products to (the “purchaser”) that the Reseller knows, or has reason to believe, are going to be resold by the purchaser. Such reseller agreement will provide that the purchaser will adhere to the PN Medical MAP policy and will otherwise comply with the terms of the reseller agreement.
5. Use of PN Medical Trademarks.
Reseller acknowledges the following:
- PN Medical owns all right, title and interest in the PN Medical names and logotypes.
- PN Medical is the owner of certain other trademarks and tradenames used in connection with certain product lines and software.
- Reseller will acquire no interest in any intellectual property, or any such trademarks or trade names by virtue of this Agreement, its activities under this Agreement, or any relationship with PN Medical.
- During the term of this Agreement, Reseller may indicate to the trade and to the public that it is an Authorized Reseller of the PN Medical products. Reseller may also use the PN Medical trademarks and trade names to promote and solicit sales or licensing of PN Medical products if done so in strict accordance with PN Medical guidelines. Reseller will not adopt or use such trademarks or trade names, or any confusingly word or symbol, as part of its company name or allow such marks or names to be used by others.
- At the expiration or termination of this Agreement, Reseller shall immediately discontinue any use of the PN Medical and PN Medical names or trademarks or any other combination of words, designs, trademarks or trade names that would indicate that it is or was a reseller of the PN Medical products.
6. Term, Limitations, Termination.
The term of this Agreement is twelve (12) months from the date of acceptance by PN Medical. This Agreement shall automatically renew on each subsequent year for a one-year term, unless it is terminated earlier in accordance with this Agreement.
- PN Medical or Seller may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon five (5) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.
- PN Medical may, from time to time, give Reseller written notice of amendments to this Agreement. Any such amendment will automatically become a part of this Agreement thirty (30) days from the date of the notice, unless otherwise specified in the notice.
- Upon expiration, non-renewal or termination of this Agreement, all interests in accrued marketing funds (if any) will automatically lapse–it does not affect any existing outstanding amounts due.
- Your Authorized Reseller Agreement and status in the program may be suspended or terminated for any of the following reasons:
- Inappropriate advertisements (Making non-FDA approved claims such as, “The Breather Fit will increase Vo2Max by 25%” or “The Breather will cure your COPD.”, or misleading hyperlinks)
- Advertising on sites containing/promoting illegal activities; or advertising on Amazon.com, or advertising on Affiliate sites that are not PN Medical authorized
- Making sales in violation of the PN Medical MAP policy
- Making sales to not authorized Affiliates or third-party Resellers
- Violation of intellectual property rightsViolation of any material provision of this Agreement
7. Compliance with Laws.
Seller agrees to comply with all laws and regulations that are applicable to the business that Seller transacts. Seller agrees to indemnify and hold PN Medical harmless for all liability or damages caused by Sellers failure to comply with the terms of this provision.
Modification. PN Medical reserves the right to update, amend or modify this Agreement upon written notice to Seller. Unless otherwise provided, such amendments will take effect immediately and Seller’s continued use, advertising, offering for sale, or sale of the Products on the Authorized Websites following notice of the amendments will be deemed Seller’s acceptance of the amendments.
Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.
Severability. If any provision of this Agreement is held contrary to law, the remaining provisions shall remain valid.
Assignment. This Agreement may not be assigned or transferred by Seller without the prior, written consent of PN Medical. PN Medical is entitled to assign this Agreement, in whole or in part, without Seller’s consent to any PN Medical-affiliated company or to any entity to which PN Medical sells, transfers, conveys, assigns, or leases all or substantially all of its rights and assets with respect to the development, production, marketing, or sale of the Products. This Agreement is intended for the benefit of the Parties and their permitted assigns, and no other person will be entitled to rely upon this Agreement or be entitled to any benefits under this Agreement.
Entire Agreement. This Agreement, the Terms and their attachments, if any, constitute the entire agreement between the Parties regarding the contemplated transactions and supersedes all prior agreements and understandings between the Parties relating to the sale of the Products online.
Governing Law and Dispute Resolution. The terms of this Agreement and any dispute arising under it shall be governed by, construed, and enforced in accordance with the laws of the State of Florida, without regard to its choice of law rules. In the event of a dispute over the terms or performance under this Agreement, the Parties expressly submit to personal jurisdiction and venue in the federal or state courts of record in Orange County, Florida. In the event of a breach or threatened breach of this Agreement by Seller, Seller is responsible for PN Medical’s attorneys’ fees and costs associated with any lawsuit or other action necessary to obtain appropriate relief.
Confidentiality. This Agreement, and its attachments, if any, constitute confidential, proprietary information of PN Medical and shall not be used for any purpose other than the authorized advertising and sale of the Products nor disclosed to any third party without the prior written consent of PN Medical.
Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES’ ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.
Limitation of Liability. Neither party shall be liable to the other for any incidental, consequential, indirect or punitive damages arising from or out of this Agreement for any reason.
The Parties have caused this PN Medical, Inc. Authorized Online Seller Agreement to be executed in their respective names by their duly authorized representatives.
EXHIBIT A. ONLINE SALES POLICY
The Authorized Websites must be confined to the specific approved domain name(s) and/or screen name(s) or storefront name(s). The Authorized Websites must not give the appearance that they are operated by PN Medical or any third party.
Anonymous sales are prohibited. Seller’s full legal name (or registered fictitious name), mailing address, email address, and telephone contact must be stated conspicuously on the Authorized Websites and must be included with any shipment of Products from the Authorized Websites.
At PN Medical’s request, Seller will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Authorized Websites. All Product images and descriptions on the Authorized Websites must be kept up to date. Seller shall not advertise Products not carried in inventory.
The Authorized Websites shall have a mechanism for receiving customer feedback. Seller shall use reasonable efforts to address all customer feedback and inquiries received in a courteous and timely manner. Seller agrees to provide copies of any information related to customer feedback (including any responses to customers) to PN Medical for review upon request. Seller agrees to cooperate with PN Medical in the investigation of any negative online review associated with Seller’s sale of the Products and to use reasonable efforts to assist in resolving such reviews.
With respect to sales of Products from the Authorized Websites, Seller is responsible for all fulfillment to its individual customers, any applicable taxes associated with such individuals’ purchases of Products, and any returns of Products.
To the extent that one or more of the Authorized Websites is a storefront on a third-party marketplace website, including, but not limited to storefronts on Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, PN Medical reserves the right to require Seller to adhere and agree to additional “Online Quality Control” policy relating to the quality and sale of Products through such storefronts. Pricing on any Authorized Websites must adhere to PN Medical’s MAP policy.
Exhibit B. ONLINE QUALITY CONTROL POLICY
Preliminary Vetting and Approval of All Authorized Online Sellers
No one may sell our products online without first obtaining our permission and agreeing to adhere to certain requirements designed to ensure product quality and the superior customer service that consumers have come to expect from PN Medical products. Before permitting any seller to sell our products online, we will vet the seller to ensure the seller meets our criteria, including, but not limited to, the following:
- An appropriately registered and recognized business that meets applicable criteria (credit, sales history, facilities requirements, etc.);
- An acceptable online review history, without a significant presence of negative product or seller reviews;
- An acceptable business operating record taking account of, among other things, any lawsuits, complaints, or actions related to the delivery of damaged products, misrepresented products, poor-quality products, or other similar issues; and
- An acceptable business operating record with respect to solvency, compliance with applicable laws, and other criteria.
Authorized Online Sellers must adhere to the following requirements:
- Authorized Online Sellers shall adhere to all terms in the applicable authorized reseller policy or agreement, including, without limitation, all requirements related to product storage, handling, customer service, consumer safety, and product quality.
- Authorized Online Sellers may only sell on websites that were listed on the Reseller Application and if applicable, those that PN Medical has specifically approved (“Approved Websites”).
- Approved Websites must clearly state the business’s name and current contact information, including mailing address, email address, and telephone number. All shipments must identify the seller and provide this contact information. Anonymous sales are prohibited.
- Authorized Online Sellers must comply with all applicable data security, accessibility and privacy laws, regulations, and industry standards in the operation of the Approved Websites.
- Authorized Online Sellers agree not to represent or advertise or resell any product as “new” that has been returned or repackaged.
- Authorized Online Sellers agree to not fulfill orders in any way that results in the shipped product not coming from product stock in the seller’s possession. PN Medical must review and approve any use of third-party fulfillment services before such third-party fulfillment services can be used.
- Approved Websites will have a mechanism for soliciting customer feedback/reviews and the Authorized Online Seller will take appropriate steps to address any feedback received.
- Authorized Online Sellers agree to cooperate with PN Medical in investigating any negative online product reviews.
Online Quality Control Auditing Program
We will operate an online quality control auditing program pursuant to which we will regularly monitor online sellers and online product and seller reviews, conduct test purchases and inspections, and confirm authorized online sellers’ compliance with all Authorized Online Seller Requirements. Through this program, we will conduct the following actions:
- Once every quarter, we will re-vet each of our Authorized Online Sellers to determine whether they still meet our criteria. If a problem is discovered, we will contact the seller at issue and determine whether the problem can be remedied. If it cannot be remedied within a reasonable period of time, we will terminate the seller’s status as an Authorized Online Seller.
- Once every quarter, we will examine every Approved Website to confirm that it complies with our requirements for Approved Websites. If we find deficiencies—for example, that an Approved Website does not properly identify our Authorized Online Seller or does not have a mechanism for soliciting customer feedback or reviews—we will notify the Authorized Online Seller that was approved to sell on the Approved Website. If the deficiencies in the Approved Website are not corrected within 15 business day from date of first notice, we will terminate the seller’s status as an Authorized Online Seller.
- Once per month, at a minimum, we will inspect all online reviews of our products that have been posted on Approved Websites since our last inspection. If we find reviews asserting that poor quality products were sold through an Approved Website, we will contact the Authorized Online Seller that was approved to sell on the website and investigate the cause of the negative online review(s). As part of this investigation, in our discretion, we may visit or have an agent of our choice visit the facilities of the Authorized Online Seller to confirm that all of our requirements related to product storage, handling, consumer safety, and quality are being properly followed. If we discover that an Authorized Online Seller is not following our quality control requirements, we will discipline the seller appropriately —up to and including possible termination of the seller’s status as an authorized seller of PN Medical products.
- PN Medical reserves the right to run random compliance checks throughout the year and purchase PN Medical product/s from the Authorized Online Seller, through every Approved Website on which each seller is approved to sell our products. We will inspect each purchased product to confirm that our Authorized Online Seller’s contact information is provided with the product. We will also inspect each product to determine whether there are any quality issues, including damage to packaging, damage to a product itself, broken seals, signs of tampering or repackaging, etc. If we discover any quality issues, we will investigate the cause of the problem and promptly communicate with our Authorized Online Seller. As part of this investigation, in our discretion, we may visit or have an agent of our choice visit the facilities of the Authorized Online Seller to determine whether our requirements related to product storage, handling, consumer safety, and quality are being properly followed. If we discover that an Authorized Online Seller is not following our quality control requirements, the seller’s status as an authorized seller of PN Medical products may be terminated.
Specific Requirements for Authorized Amazon Seller
To protect the value and goodwill associated with the PN Medical, Inc. brand and to prevent consumer confusion, we have approved only a limited number of sellers to sell on the Amazon Marketplace (“Authorized Amazon Sellers”). This limitation allows us to closely monitor seller and product reviews and to promptly address any issues directly with our approved sellers. This limitation will also help prevent the confusion that exists when consumers are presented with many marketplace sellers and are unable to discern which are authorized and subject to our quality controls. In addition to the requirements set forth above, Authorized Amazon Sellers must satisfy the following requirements:
- Maintenance of a 95% or higher favorable seller feedback score.
- Prohibition against commingling products or fulfilling orders in any way that potentially results in delivery to the buyer of a product from another seller’s stock. All products sold by Authorized Amazon Sellers on the Amazon Marketplace must have been purchased directly from PN Medical.
- Amazon’s “repackaging service” policy must be disabled. PN Medical products that are returned to Amazon fulfillment centers cannot be resold as “new” under any circumstances.
EXHIBIT C. MINIMUM ADVERTISED PRICE (MAP) POLICY
Effective as of this date: November 15, 2018
PN Medical, Inc. (PN Medical) is a recognized leader in respiratory medical devices. It maintains a significant investment in a consistent brand image emphasizing quality and safety. In keeping with that image, PN Medical believes that certain advertising practices undermine PN Medical’s brand and reputation within the target consumer population and discourages PN Medical’s resellers from investing in PN Medical’s product lines and providing the best possible service and support to consumers.
To protect the value and integrity of the PN Medical brand, PN Medical, Inc. has unilaterally established this Minimum Advertised Price (“MAP”) Policy, which applies to all authorized resellers of PN Medical products in the United States of America (“Resellers”). This Policy applies to advertisements of all PN Medical products.
PN Medical will provide Resellers with suggested resale (list) prices for PN Medical products which are applicable in the United States (“Price Lists”), as well as the MAP for each product. This MAP Policy applies only to advertised prices and does not apply to the prices at which PN Medical products are actually sold. From time to time PN Medical may run special promotions — such as seasonal events or slow season sales, and hence the price recommended by PN Medical in such cases may dip temporarily below MAP. In each and every case PN Medical shall notify its resellers of such lower recommended price and the time period for which it recommends such price. From time to time, PN Medical may offer special promotions on certain PN Medical Products. In such an event, PN Medical reserves the right to modify or suspend this MAP Policy in whole or in part by notifying Resellers of the duration and nature of the modification or suspension.
While Resellers remain free to advertise and sell PN Medical products at any price they deem appropriate, it is a violation of this Policy for a Reseller to advertise any PN Medical product at a price below the MAP. Such advertisements include, but are not limited to:
- Offering coupons, discounts, Reseller-provided rebates, or other inducements that, when applied, result in a price lower than the MAP, including through use of a storewide sale, promotional code, or other similar provision that can be applied to PN Medical products.
- Bundling PN Medical products with other products or services (whether made by or provided by PN Medical or another entity) in a manner that implies below-MAP pricing for the bundled PN Medical product.
- Strikeouts or strikethroughs of pricing information, “see price in cart,” or other statements that suggest that a lower price for a PN Medical product may be found at the final online checkout stage.
PN Medical reserves the right, acting in its sole discretion, to make a final determination as to the compliance of any advertisement and method of sale. Resellers are responsible for ensuring that their advertising of PN Medical Products complies with all applicable local, state and federal laws, ordinances and statutes.
For purposes of this MAP Policy, the terms “advertise” and “advertisement” include all promotional or pricing information displayed via any type of media, including without limitation, print, newspapers, brochures, flyers, posters, magazines, catalogs, direct mailers, television, radio, billboards, signage (except signs displayed within a brick-and-mortar selling location), websites, blogs, social media, affiliate marketing networks/comparison shopping engines, Reseller-initiated text messages or emails to customers or prospective customers, mobile/smart phone applications, banner ads, online product ads, paid search ads, pay-per-click ads, display ads, mobile ads, product listing ads, sponsored links, ads in any other media in a digital format that is communicated or conveyed via the Internet, and any other marketing or promotional materials, whether displayed online or through broadcast or other media.
Direct or indirect attempts to circumvent this Policy also violate this Policy; however, it is not a violation to advertise that a customer may “call for price,” “text for price,” or “email for price” as long as no price is listed and no automated call, text message, or “bounce-back” email is used in response. Furthermore, it is not a violation of this Policy to use the phrases “price too low to print,” “lowest prices in town on The Breather – call for quote,” “we will match any price,” or “volume discounts are available” in advertising.
Notwithstanding the foregoing, pricing information displayed at the final online checkout stage of a transaction is not considered “advertising” under this Policy. The “final online checkout stage” is the stage when the PN Medical product is put into a shopping cart that contains the customer’s name, shipping address, email address, and payment information. Pricing information in the “shopping cart” or “checkout” stages must be obscured technically so that it is not retrievable by shopping and pricing engines, and not displayed on search page results within the Reseller’s own website.
This Policy does not constitute an agreement between PN Medical and any other entity. PN Medical neither solicits nor will it accept any assurance of compliance with this Policy from any Reseller or other party. Each Reseller must independently choose whether to comply with the terms of this Policy. This Policy is not negotiable and will not be altered for any individual Reseller.
PN Medical will take the following actions against any Reseller that fails to comply with this Policy:
- For a Reseller’s first violation of the Policy, PN Medical will notify the Reseller in writing of such failure and will immediately place the Reseller on a shipping hold for thirty (30) days.
- For a Reseller’s second violation of the Policy, PN Medical will notify the Reseller in writing of such failure and will immediately place the Reseller on a shipping hold for ninety (90) days.
- For a Reseller’s third violation of the Policy, PN Medical will terminate its business relationship with the Reseller and the Reseller’s status as an “authorized” seller of PN Medical products.
This MAP Policy has been adopted unilaterally. PN Medical (i) will investigate and resolve any reported violation unilaterally, in its sole discretion, and without notice, and (ii) will communicate its decision solely to the particular Reseller who is the subject of any investigation. PN Medical may engage in monitoring of advertised prices of PN Medical products, either directly or via the use of third parties retained to monitor advertisements.
All questions regarding this MAP Policy should be directed to the Policy Administrator in writing at email@example.com. PN Medical will accept no other form of communication from Resellers regarding this Policy. No PN Medical employee or agent is authorized to modify, interpret, or grant exceptions to this Policy; solicit or obtain the agreement of any person to this Policy; or otherwise discuss any aspect of this Policy with any Reseller, including that Reseller’s or any other Reseller’s compliance with the terms of the Policy.
The Policy Administrator shall be solely responsible for determining whether a violation of this MAP Policy has occurred, for communicating any violations with the Reseller, and enforcing consequences.
PN Medical reserves the right to update, modify, suspend, reinstitute, or cancel this MAP Policy, in whole or in part, at any time and for any reason. PN Medical shall make any such modifications available to all Resellers. If PN Medical changes the MAP on any product, it will provide at least 14 days’ notice to Resellers before such change takes effect.
This Policy is effective November 15, 2018 and supersedes all prior PN Medical policies and/or representations regarding minimum advertised prices or resale prices for PN Medical products applicable to any Reseller. To the extent that any provision, term, or agreement governing the relationship between PN Medical and any Reseller may be construed in a manner that is inconsistent with the terms of this Policy, the terms of this Policy control.
2019 Minimum Advertised Price (MAP)
|Product||Suggested Retail Price||Minimum Advertised Pricing|
The Breather Fit
|Product||Suggested Retail Price||Minimum Advertised Pricing|
|The Breather Fit||$59.95||$52.50|