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HYER Authorized Retailer Agreement

This Agreement is by and between Hyer Boots, Inc. (“Hyer”) and the entity listed as Retailer below (“Retailer”).This Agreement consists of this cover page (the “Cover Page”), the Master Terms and Conditions (the “Master Terms”) and any and all exhibits, attachments and amendments hereto (collectively, the “Agreement”). All capitalized terms not defined in this Cover Page have the meaning given to them in the Master Terms. In the event of any conflict between this Cover Page and the Master Terms, the terms set forth in this Cover Page will prevail.References to “days” herein will mean calendar days unless otherwise specified.
MASTER TERMS 
 
These Master Terms and Conditions (“Master Terms”) set forth the terms and conditions under which Hyer appoints Retailer as an authorized reseller of the Products.
  1.  APPOINTMENT
Subject to the terms and conditions of this Agreement, Hyer appoints Retailer, and Retailer hereby accepts the appointment, as Hyer’s non-exclusive reseller of the Products to End Users in the Territory.Nothing in this Agreement will be interpreted to limit Hyer’s rights to sell, market or distribute Products, including the right to make direct sales and to appoint other retailers, dealers, licensees, or agents in any location.
  1. PURCHASE OF HYER PRODUCTS
(a) Products and Hyer Price Sheet. Subject to the terms and conditions of this Agreement, Hyer will sell Products to Retailer at the prices listed in the Hyer Price Sheet available through Hyer Catalog/Line Sheet. The “Hyer Price Sheet” means the document identifying the Hyer products available for purchase by Retailer (the “Products”) and the prices at which those Products may be purchased by Retailer, as further specified in Section 6. 
(b) Order Procedure. Pursuant to this Agreement, Retailer shall place an order to purchase Products from Hyer (the “Order”) by either (i) issuing and delivering to Hyer a written order in a method of delivery agreed to by the Parties; or (ii) submitting an order form via Hyer’s online platform. By placing an Order, Retailer makes an offer to purchase Products under the terms and conditions of this Agreement. In the Order, the Retailer shall specify, along with other information requested therein, a list of Products to be purchased, quantities ordered, requested delivery date, and delivery address. 
(c) Order Acceptance. Hyer may, in its sole discretion, accept or reject any Order. Hyer may accept any Order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering the ordered Products, whichever occurs first. Hyer expressly rejects any additional Retailer terms or conditions that Retailer may add to an Order that seek to add to or modify the terms of this Agreement. No Order is binding on Hyer unless accepted by Hyer as provided in this Agreement. Retailer may issue its own purchase orders, but such purchase orders are for administrative purposes and will have no force or effect, including any terms and conditions attached to any such purchase order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Retailer’s general terms and conditions contained in any purchase order or other document issued by Retailer. 
(d) Order Cancellation. Hyer may, in its sole discretion, without liability or penalty, cancel any Order placed by Retailer and accepted by Hyer, in whole or in part: (i) if Hyer discontinues its sale of Products or reduces or allocates its inventory of Products; (ii) if Hyer determines that Retailer is in violation of its payment obligations under or has breached or is in breach of this Agreement; or (ii) pursuant to Hyer’s rights under Section 6. Unless agreed to by the Parties in writing, Retailer has no right to cancel or amend any Order submitted by it to Hyer. 
  1. SHIPMENT AND DELIVERY
(a) Shipment. Unless expressly agreed to by the Parties in writing, Hyer shall select the method of shipment of and the carrier for the Products. All freight, insurance, and other shipping expenses, as well as expenses for any special packing requested by Retailer and provided by Hyer, will be paid by Retailer. Hyer may charge Retailer its then-standard small order handling charge for any Order requiring Hyer to ship Products in less than its standard box-lot quantities.
(b) Delivery. Unless expressly agreed to by the Parties in writing, Hyer shall deliver the Products to the deliver address specified in the Order, using Hyer’s standard methods for packaging and shipping the Products, with shipping paid by Retailer, considered pre-paid and added to invoice.
(c) Title and Risk of Loss. Title to Products shipped under any Order passes to Retailer either uponRetailer’s receipt of such Products or Hyer’s receipt of payment for such Products, whichever is later. Risk of loss for Products shipped under any Order passes to Retailer upon Hyer’s delivery of such Products to the carrier.
(d) Inspection. Retailer shall inspect the Products received under this Agreement within three (3) business days of receipt of the Products and either accept or, if any Product are Nonconforming Goods or Excess Products, reject such Products. “Nonconforming Goods” means any Product received by Retailer from Hyer pursuant to an Order that: (a) is not a Product; (b) does not conform to the make/model number/UPC/SKU listed in the applicable Order; or (c) on visual inspection, Retailer reasonably determines are otherwise defective. “Excess Product” means a Product that, when counted together with all other Products have the same make/model number/UPC/SKU and received by Retailer under the same Order, is in excess of the quantities of the Products ordered under the Order. All shipment and freight charges will be deemed correct, and the Products delivered deemed accepted, unless Hyer receives from Retailer, no later than three (3) business days after the date of delivery to Retailer’s shipper, a written notice to Hyer at info@hyerboots.com specifying the shipment, the Order number, and the exact nature of the damage or Order discrepancy. Retailer acknowledges that such three (3) business day period provides Retailer with sufficient opportunity to examine the Products. If Hyer determines, in its sole discretion, that the Products are Nonconforming Goods or Excess Products, Hyer may replace or refund such Products. Retailer acknowledges and agrees that the remedies set out in this Subsection are Retailer’s exclusive remedy for the delivery of Nonconforming Goods or Excess Products.
  1. RETAILER’S COMMITMENTS FOR MARKETING AND RESELLING 
(a) Retailer’s Best Efforts. Retailer will, consistent with good business practice, market, advertise, promote, and resell the Products using its best efforts to maximize the sales volume of the Products in the Territory. Retailer will conduct its business, including reasonable End User support, in a manner that reflects favorably at all times on Products and the good name, good will, and reputation of Hyer. Retailer will abide by the requirements of the Federal Trade Commission Mail or Telephone Order Merchandise rule. Without limiting the foregoing, except as expressly set forth herein, Retailer will be solely responsible for all costs and expenses related to the advertising, marketing, promotion, support, and distribution of the Products and for performing its obligations hereunder.
(b) No Deceptive or Damaging Behavior. Retailer represents and warrants that it will: (a) not make any reference or claim about Hyer or the Products other than presenting current information that has been published by Hyer or pre-approved by Hyer in writing; (b) not use deceptive, misleading, illegal, or unethical practices in marketing and promoting the Products; (c) not market, advertise, promote, or sell Products using a different business or trade name than specified in the Cover Page, unless Retailer has prior written approval from Hyer; and (d) not make any representation, warranty, guaranty, indemnity or other commitments regarding the Products without Hyer’s prior written authorization. Retailer agrees to conduct its business in a fair and equitable manner reflecting favorably upon Hyer’s reputation, image, credibility and goodwill, and to carry out no action which may be harmful to the image of Hyer. Retailer also agrees to use commercially reasonable efforts to promptly notify Hyer of any act of which Retailer has knowledge that would damage the reputation or goodwill of Products or that would misrepresent or disparage Products.
(c) Retailer-Designated Store Only; End Users Only. This Agreement authorizes Retailer to sell Products solely through its Retailer Designated Store (specified in the Cover Page) within the Territory, solely to End Users, and not to other distributors, online retailers, commercial resellers or other third parties. “End User” means the final purchaser that has acquired a Product from Retailer for its own use and not for resale, wholesale, remarketing, or distribution. Retailer is expressly prohibited from selling Products, directly or indirectly, on or through third-party online stores or marketplaces, including but not limited to Amazon.com or eBay.com. Retailer also agrees not to sell, either directly or indirectly, or assign or transfer, any Products to any person or entity when Retailer knows or has reason to suspect that the person or entity may resell any or all of the Products to a third party, including any third-party reseller or distributor. Retailer acknowledges that this Subsection exists to protect Hyer’s proprietary online store and any breach of this Subsection would constitute a material and uncurable breach of this Agreement.
(d) End User Data Security for Retailer Online Stores. To the extent Retailer is authorized to sell Products on its online store, Retailer represents and warrants that, throughout the Term of this Agreement, for Retailer’s online store websites used to sell Products to End Users, Retailer (i) maintains an industry standard encryption system that provides secure transactions for End Userspurchasing the Products; (ii) complies with the PCI Data Security Standard; and (iii) complies with any and all applicable data privacy or data security laws. 
(e) Authorized Hyer Retailer. Retailer is required to display on its online store website or in its brick and mortar store (as applicable, depending on the Retailer-Designated Store), and on any marketing and promotional materials for the Products, that it is an “Authorized Hyer Retailer.” 
(f) Trademark License. Subject to the terms and conditions of this Agreement, Hyer grants the Retailer a limited, non-exclusive, non-transferable, royalty-free right and license to use, reproduce, display and perform Hyer’s trademarks, whether registered, pending, or common law (the “Marks”), solely for the purpose of the Retailer fulfilling its obligations or exercising its rights hereunder, including, for Retailer to market and promote the Product. Retailer will use the Marks in conformance with any branding and trademark usage policy Hyer may communicate to Retailerfrom time to time. In using the Marks, Retailer will not abbreviate, misspell, alter the color, design, or appearance of, combine with other trademarks, or manipulate the Marks in any way without the prior written approval of Hyer. Retailer’s use of the Marks will be subject to Hyer’s quality control procedures. Retailer acknowledges that its use of the Marks will not create in Retailer, and Retailerwill not represent it has, any right, title, or interest in the Marks other than the license granted herein. Retailer will not challenge the validity of or attempt to register any of the Marks, nor will it adopt any derivative or confusingly similar names, brands, or Marks, or create any combination trademarks with the Marks. Retailer acknowledges Hyer’s ownership and exclusive right to use the Marks. Retailer agrees that all goodwill arising as a result of Retailer’s use of the Marks will inure solely to Hyer. 
(g) Marketing Materials. Subject to the terms and conditions of this Agreement, and in each case with Hyer’s prior written approval, Hyer grants to Retailer a limited, non-exclusive, revocable, non-transferable right and license during the Term to create marketing materials and to modify and create derivative works from Hyer’s documentation solely for the purposes of marketing the Products in the Territory (the “New and Modified Materials”). Retailer agrees that the creation of any and allsuch Modified Materials will be at Retailer’s expense. Hyer will own all right, title and interest, including copyrights and other intellectual property rights, in and to the Modified Materials. Subject to applicable law, Retailer hereby irrevocably assigns to Hyer, in perpetuity, all right, title and interest (including all intellectual property rights) in and to such New and Modified Materials. Retailer will abide by Hyer’s trademark policy in the creation of New and Modified Materials and will provide a prototype of each New and Modified Material to Hyer prior to distribution for Hyer’s review and approval, which will not be unreasonably withheld or delayed.
(h) MSRP. Retailer is expected to abide by the MSRP or above, as listed in the Hyer Price Sheet.
  1.  DUTIES OF RETAILER
(a) Packaging and Warehousing Responsibilities. Retailer will ensure that the Products are properly packaged and labelled in compliance with all local regulations in each jurisdiction within the Territory. Retailer will ensure suitable warehousing in accordance with the specifications for the applicable Product and distribute each Product in packaging that will provide adequate protection for the Products.
(b) Product Source; No Alteration of Products. In order to ensure the authenticity and quality of the Products, Retailer will obtain any and all of the Products solely from Hyer (and not from any third party). Retailer will not obtain the Products from any other source, unless it first obtains Hyer’sprior written consent. Except as explicitly authorized in this Agreement or in a separate written agreement with Hyer, Retailer may not modify, alter, or otherwise change the Products it sells to its End Users.
  1. PRICE AND PAYMENT
(a) Price. The prices to be paid by Retailer to Hyer for Products (each a “Price”) will be as set forth in the Hyer Price Sheet. Retailer acknowledges that Hyer may modify the Hyer Price Sheet from time-to-time in its sole discretion and that the Product Prices to Retailer will be the price listed in the Hyer Price Sheet in effect at the time of Hyer’s acceptance of the Order for the applicable Products.
(b) Shipping Charges, Insurance, and Taxes. Retailer shall pay all charges, costs, and taxes related to the shipping of Products to Retailer, unless otherwise expressly agreed to by the Parties in writing. Product Prices and all amounts payable under this Agreement are exclusive of all state and local use, sales, value-added, withholding, and property taxes and other taxes (and, if applicable, duties). As between Retailer and Hyer, Retailer is responsible for all taxes incurred as a result of the purchase of Products from Hyer. Hyer will be promptly reimbursed by Retailer for any and all such taxes that Hyer may be required to pay in connection with this Agreement. Retailer will supply Hyer, upon Hyer’s request, with audited annual financial statements/reports and quarterly audited financial reports.
(c) Adjustment for Errors. Hyer reserves the right to correct shipping or invoicing errors when Product is shipped at an incorrect price. Such adjustments may result in an increase or decrease in invoiced price. Hyer will also correct shipping errors upon notification by Retailer. 
(d) Invoices and Payment Terms. Hyer will issue invoices to Retailer for all Products ordered. Retailer shall pay all invoiced amounts due to Hyer within terms from the date of invoice.
(i) In lieu of accepting returns of shipped Products (except as provided under Section 3(d), Hyer will offer a two percent (2%) discount on invoices that the Retailer pays upon invoice terms. Retailers making payment beyond the terms of invoice will forgo the discount and must pay the invoice in full. 
(ii) Invoices that have not been paid within thirty (30) days after the date of invoice will begin to incur interest at a rate equal to one and one half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Retailer shall also reimburse Hyer for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Upon termination of this Agreement for any reason, all undisputed invoices will immediately become due and payable in full and will not be eligible for the two percent discount.
(iii) Retailer shall make all payments by check, wire transfer, or credit card. Credit card payments are subject to a convenience fee.
(e) Invoice Disputes. If Retailer reasonably and in good faith disputes any amount on an invoice, Retailer will: (i) notify Hyer of such dispute in writing within ten (10) business days of the date of such invoice; and (ii) pay any portion of the invoice that is not in reasonable and good faith dispute.Thereafter, Retailer and Hyer will work in good faith to resolve the dispute. Upon resolution, Retailer will promptly pay any amount determined due to Hyer. Retailer will be deemed to have accepted all invoices for which Hyer does not receive timely notice of a dispute within ten (10)business days of the date of the invoice.
(f) Credit Status. Each issuance of an Order by Retailer to Hyer constitutes Retailer’s representation and warranty that Retailer can pay for the Products identified in the Order in accordance with the terms of this Agreement. Retailer shall furnish Hyer with such statements accurately and fairly evidencing Retailer’s financial condition as Hyer may, from time to time, reasonably request, including the information requested in the Cover Page. Retailer hereby authorizes Hyer to investigate Retailer’s credit and financial standing and authorizes Retailer’s banks and other creditors past and present to provide credit and financial information to Hyer. Throughout the Term, Retailer shall be in compliance with all loan covenants or other material obligations of Retailer to its lenders. If at any time Hyer determines in its sole discretion that Retailer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Hyer’s other rights under this Agreement, at law or in equity, Hyer may without liability or penalty, take any of the following actions: 
(i) modify the payment terms specified herein for outstanding and future purchases, including requiring Retailer to pay cash in advance or cash on delivery;
(ii) reject any Order received from Retailer;
(iii) cancel any previously accepted Order;
(iv) delay any further shipment of Products to Retailer;
(v) stop delivery of any Products in transit in the possession of a common carrier or bailee and cause the Products in transit to be returned to Hyer;
(vi) immediately terminate this Agreement; or 
(vii) accelerate the due date of all amounts owing by Retailer to Hyer.
No actions taken by Hyer nor any failure of Hyer to act under this section constitute a waiver by Hyer of any of its rights to enforce Retailer’s obligations under this Agreement including the obligation of Retailer to make payments as required under this Agreement.
(g) Guaranty. To ensure Hyer is paid all amounts due and owed to it by Retailer under this Agreement, Hyer may request Retailer obtain a guarantor pursuant to the Guaranty attached hereto as Exhibit A.
(h) Security Interest. To secure Retailer’s prompt and complete payment of any and all present and future indebtedness, obligations, and liabilities of Retailer to Hyer under this Agreement, Retailer hereby grants Hyer a first-priority security interest, prior to all other liens and encumbrances, in all inventory of Products purchased under this Agreement, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Hyer may file a financing statement for the security interest and Retailer shall execute any statements or other documentation necessary to perfect Hyer’s security interest in the products. Retailer also authorizes Hyer to execute, on Retailer’s behalf, statements or other documentation necessary to perfect Hyer’s security interest in the Products. Hyer is entitled to all applicable rights and remedies of a secured party under applicable Law.
  1. INVENTORY ADJUSTMENT 
(a) Product Changes. Hyer reserves the right from time to time in its sole discretion, without incurring any liability to Retailer with respect to any previously placed Order: (i) to discontinue or to limit its production of any Product; (ii) to allocate, terminate or limit deliveries of any Product in time of shortage; (iii) to alter the design or construction of any Product; (iv) to add new and additional products to the Products; and (v) upon reasonable notice to Retailer, to change its sales and distribution policies, not inconsistent with the terms of this Agreement. Hyer will use reasonable efforts to keep Retailer reasonably informed of significant changes and innovations in new products and performance of Products.
  1. RETURN POLICY
(a) Limited Right of Return. Except as provided under Section 3(d), Hyer will not accept returns for any Products shipped to Retailer and will not issue any refunds or credits for returns. As specified above in Section 6(d)(i), in lieu of accepting returns for shipped Products, Hyer will offer a two percent (2%) discount on invoices that the Retailer pays within terms from the date of invoice. 
  1. WARRANTY DISCLAIMER
(a) Warranty Disclaimer. SUBJECT TO ANY WARRANTY THAT HYER PROVIDES DIRECTLY TO THE CONSUMER (IF ANY AND WHICH RIGHTS IN SUCH WARRANTY IS SOLELY FOR THE BENEFIT OF THE CONSUMER AND NOT RETAILER) THE PRODUCTS ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS”. HYER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. NO WARRANTY IS MADE BY HYER ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF TRADE. IN NO EVENT WILL HYER BE RESPONSIBLE FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, MISUSE OF A PRODUCT, OR MISTREATMENT OF A PRODUCT. HYERWILL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY. HYER WILL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NON-COMPATIBILITY OF THE PRODUCTS WITH OTHER ITEMS USED BY BUYER. THE WARRANTY OF REPLACEMENT PRODUCTS WILLTERMINATE WITH THE WARRANTY OF THE PRODUCT.
  1. TERM AND TERMINATION 
(a) Term. The term of this Agreement will commence on the Effective Date for a period of one (1) year (the “Initial Term”). The Agreement will thereafter automatically renew for additional periods of one (1) year (the “Renewal Term”; and together with the Initial Term, the “Term”) unless either party provides notice to the other of its intent not to renew with no less than thirty (30) days’ written notice. 
(b) Termination Without Cause. This Agreement may be terminated at any time, without cause, by either party upon giving at least thirty (30) days’ prior written notice to the other party. Such termination will be effective on the date stated in such notice. 
(c) Termination for Financial Distress. Either party may, without affecting any other rights or remedies of such party, terminate this Agreement and/or suspend or cancel any further deliveries of Products, effective upon written notice to the other party stating such party’s intention to terminate, if the other party: 
(i) ceases to function as a going concern or to conduct operations in the normal course of business;
(ii) has a petition filed by or against it under any bankruptcy or insolvency law which petition has not been dismissed or set aside within sixty (60) days of its filing; or 
(iii) fails to perform any of its obligations under this Agreement so as to be in default hereunder and fails to cure such default within thirty (30) days after written notice of such default. 
(d) Termination for Assignment or Change of Control. Hyer may terminate this Agreement immediately upon written notice to Retailer if Retailer experiences a Change of Control and the controlling entity is a competitor of Hyer (as determined by Hyer in its sole discretion). “Change of Control” means (i) an acquisition, reorganization, merger, or consolidation of Retailer by or with a third party in which the holders of the voting securities of Retailer outstanding immediately before such transaction cease to beneficially own at least fifty percent (50%) of the combined voting power of the surviving entity, directly or indirectly, immediately after such transaction; or (b) the sale or other transfer to a third party of all or substantially all of Retailer’s assets.
(e) Repurchase Upon Termination. Upon termination or expiration of this Agreement, Hyer reserves the right in its sole discretion to repurchase any or all unsold Products existing in Retailer’s inventory as of the effective date of termination that: (i) are in good and working condition and in their original packaging; and (ii) were purchased by Retailer directly from Hyer (“Eligible Products”). Eligible Products returned pursuant to this Section 10(e) must be returned within thirty (30) days of the effective termination date. Eligible Product not returned within such thirty (30) day period will not be subject to repurchase by Hyer. The repurchase price for Eligible Products will be the actual net invoice price paid by Retailer less any prior discounts provided to Retailer hereunder; provided that if this Agreement is terminated by Retailer for convenience pursuant to Section 10(b), the repurchase price to be paid by Hyer to Retailer for the repurchased Eligible Products will be reduced by a fifteen percent (15%) restocking fee. Retailer will pay all shipping expenses relating to the return of Eligible Products. Payment for repurchased Eligible Products will be made by Hyer in three (3) equal monthly installments, with the first installment due thirty (30) days after receipt of the Eligible Products by Hyer; provided that such Eligible Products meet the criteria set forth in this Section 10(e). 
(f) Orders; No Waiver.  After any notice of termination has been delivered by either party hereunder, deliveries of Product from Hyer to Retailer, unless otherwise agreed in writing by Hyer in its sole discretion, will require prepayment by wire transfer by Retailer to Hyer. The acceptance of any Order from or the sale of any Product to Retailer after the termination or expiration of this Agreement will not be construed as a renewal or extension of this Agreement nor as a waiver of termination. Upon termination of this Agreement for any reason, (i) Hyer may or may not fulfil any Order under this Agreement, upon written notice to Retailer; (ii) all undisputed invoices willimmediately become due and payable in full, and (iii) Retailer is not entitled to any refunds of Orders in transit when this Agreement is terminated. 
(g) No Liability for Termination. If either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of Hyer or Retailer. Termination will not, however, relieve either party of obligations incurred prior to such termination. 
(h) Survival. The following provisions will survive the expiration or any termination of this Agreement: Sections 4-5, and 9-16.
  1. CONFIDENTIALITY AND PROPRIETARY RIGHTS 
(a) Confidentiality.
(i) Retailer acknowledges that by reason of its relationship to Hyer hereunder it will have access to certain confidential information and materials including, but not limited to, information about Hyer’s business, plans, product road maps, customers and technology related to the Products and future Hyer products. All such information disclosed by Hyer to Retailer hereunder will be deemed Hyer’s confidential and proprietary information (“Confidential Information”) unless and until specifically advised otherwise by Hyer with respect to a particular item of information. Upon Retailer’s request, Hyer will state in writing whether it considers any particular information or materials to be confidential. All Confidential Information will remain the exclusive property of Hyer. Retailer will protect the Confidential Information from disclosure to third parties. 
(ii) Retailer agrees that it will not, without Hyer’s written consent, use in any way for its own account or the account of any third party, or disclose to any third party, any Confidential Information. Retailer may disclose confidential information to its employees who have signed a confidentiality agreement with Retailer and who have a need to know such information in order to perform its obligations hereunder. 
(iii) Upon Hyer’s request, Retailer will immediately return any tangible Confidential Information, together with all copies thereof. Retailer will not publish any technical description of the Products or future products beyond the description published by Hyer. After expiration or earlier termination of this Agreement, Retailer will not use or disclose any Hyer Confidential Information, and Retailer will not manufacture or have manufactured any products, devices, components, or assemblies utilizing any of Hyer’s Confidential Information. 
(b) Ownership. Retailer acknowledges that Hyer and its licensors own all right, title, and interest, including all intellectual property rights in and to the Product, the documentation provided or made accessible under this Agreement, the Modified Materials, and the Hyer Marks (collectively “Hyer Materials”), and that such items may contain confidential information, trade secrets, and/or patented technology. Retailer will not engage in any act or omission that would impair Hyer’s and/or its licensors’ rights in any Hyer Materials, including that Retailer will not, and Retailer will not authorize or request that any third party, reverse engineer or disassemble the Product. Hyer reserves all rights in such Product except the limited rights granted to Retailer under this Agreement. If Retailer has any rights to any such Hyer Materials that are not owned by Hyer upon creation or embodiment, Retailer unconditionally and irrevocably assigns to Hyer all right, title and interest worldwide in and to such Hyer Materials, including all intellectual property rights therein. All rights not granted herein in any of the foregoing are reserved to Hyer. All goodwill arising in or from the Product will inure solely to Hyer. 
(c) Feedback. Hyer may send Retailer questionnaires or surveys on a periodic basis in written or electronic form as mutually agreed between the Parties. Any comments, ideas and/or reports provided to Hyer, whether in such questionnaires or otherwise related to the Product (collectively, “Feedback”) will be considered proprietary to Hyer and Hyer Confidential Information, and Retailer irrevocably transfers and assigns to Hyer all intellectual property rights embodied in or arising in connection with such Feedback. 
(d) Continuous Development. Hyer may, in its sole discretion, modify, replace, or add to any of the Product at any time, including revisions to any and all accompanying documentation, terms and conditions, and licenses associated with the Product. Hyer will use commercially reasonable efforts to provide Retailer with prior notice of material changes. 
(e) Intellectual Property Notices. Retailer will not (and will require that its End Users not) remove, alter, cover or obfuscate any copyright notices, trademark notices, or other proprietary rights notices placed or embedded by Hyer on or in any Products. 
  1. INDEMNIFICATION.
Retailer agrees to indemnify, defend, and hold harmless Hyer and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Hyer Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right of indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Hyer Indemnified Party (collectively, “Losses”), arising out of or relating to any claim of a third party: (i) relating to any breach or non-fulfilment of any representation, warranty, or covenant under this Agreement by Retailer or its representatives; (ii) alleging or relating to any negligence, misrepresentation, error or omission by Retailer or its representatives in connection with the performance of its obligations under this Agreement; (iii) alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by the acts or omissions of Retailer or its representatives; (iv) relating to a purchase of a Product by any person or entity purchasing directly or indirectly through Retailer; (v) relating to any failure by Retailer or its representatives to comply with applicable laws, including Retailer’s failure to pay any required taxes, duties, levies, or any similar tariffs or fees in connection with this Agreement; or (vi) alleging that the Retailer breached its agreement with a third party as a result of or in connection with entering into, performing under, or terminating this Agreement. 
  1. LIMITATION OF LIABILITY.
HYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY RETAILER TO HYERDURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE MAKING OF THE CLAIM IN CONNECTION WITH SUCH LIABILITY HEREUNDER. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT (INCLUDING WITHOUT LIMITATION THE PROVISIONS OF SECTION 13 HEREOF), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. RETAILER’S REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES AVAILABLE TO REPRESENTATIVE, WHETHER PROVIDED AT LAW, EQUITY OR OTHERWISE.
  1. COMPLIANCE WITH LAWS 
(a) With respect to this Agreement, Retailer will comply and will cause all of its owners, directors, officers, employees, and agents (collectively, “Retailer Persons”) to comply, with all applicable laws and regulations including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 as amended, the Export Administration Act of 1979, the Export Administration Regulations, regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control, and all other applicable laws and regulations in jurisdictions in which the Retailer engages in business that govern corruption, bribery, kickbacks, ethical business conduct, fraud, money laundering, exports, embargoes, sanctions, boycotts, or similar matters (collectively, “Anti-Corruption and Export Compliance Laws”).
(b) Retailer and Retailer Persons will not, directly or indirectly through third parties, offer, promise, authorize, pay, provide, accept, or solicit any bribe, kickback, or improper payment, gratuity, favor, or benefit to or from (i) any Public Official; (ii) any individual or entity while knowing that all or a portion of that money or thing of value will be offered, promised, or provided to a Public Official; or (iii) any other individual or entity, to obtain, retain, or direct any business or for any other improper purpose. “Public Official” means (A) any director, officer, employee, representative, department, agency, official, corporate entity, instrumentality, or subdivision of any government, military, government-owned or affiliated entity, or any public international organization (such as the United Nations or World Bank), or (B) any candidate for public office, any political party, or any official of a political party. 
 
(c) None of Retailer or Retailer Persons are or have been accused of, or investigated or prosecuted for, violating any Anti-Corruption and Export Compliance Laws.         
(d) Retailer will immediately report to Hyer (i) any concerns, suspicions, or actual knowledge of violations of Anti-Corruption and Export Laws or any other applicable law, or (ii) if Retailer becomes the subject of any investigation, prosecution, or government or judicial determination related to a violation of Anti-Corruption and Export Laws or any other applicable law. Retailer will fully cooperate and cause Retailer Persons to cooperate with Hyer in Hyer’s review or investigation in relation to an actual or potential violation of any applicable law or regulation.
(e) Retailer understands and acknowledges that a violation of this Section 14 by Retailer or RetailerPersons will be deemed a material breach of this Agreement and will entitle Hyer to (i) terminate the Agreement immediately for cause, and (ii) be indemnified for and held harmless against any and all damages, fines, penalties, disgorgements, settlements, determinations, or claims faced by or imposed on Hyer or its personnel to the extent attributable to the material breach of this Section by Retailer or Retailer Persons.
  1. GENERAL
(a) No Franchise or Business Opportunity Agreement; Independent Contractors. The relationship of Hyer and Retailer established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. All financial obligations associated with Retailer’s business are the sole responsibility of Retailer. All sales and other agreements between Retailer and its customers are Retailer’s exclusive responsibility and will have no effect on Retailer’s obligations under this Agreement. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Retailer has the sole discretion to determine Retailer’s methods of operation, Retailer’s accounting practices, the types and amounts of insurance Retailer carries, Retailer’s personnel practices, Retailer’s advertising and promotion, Retailer’s End Users, and Retailer’s service areas and methods.
(b) Assignment. This Agreement cannot be assigned by either Retailer or Hyer without the prior written consent of the other; provided, however, that, upon written notice to the other, either party may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business. If Retailer experiences a Change of Control, Retailer will provide Hyer immediate written notice after the close of the transaction that gave rise to the Change of Control.
(c) No Implied Waivers. Any waiver of any kind by a party of a breach of this Agreement must be in writing, will be effective only to the extent set forth in such writing and will not operate or be construed as a waiver of any subsequent breach. Any delay or omission in exercising any right, power or remedy pursuant to a breach or default by a party will not impair any right, power or remedy which either party may have with respect to a future breach or default. 
(d) Severability. If it is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable in any jurisdiction, such provision will be enforced in such jurisdiction as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms, and any such determination will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent any provision (or part thereof) cannot be enforced in accordance with the stated intentions of the parties, such provision (or part thereof) will be deemed not to be a part of this Agreement; provided that in such event the parties will use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement. 
(e) Force Majeure. Except for payment of monies (to which this Subsection 15(e) will not apply)neither party will be liable for failure to fulfil its obligations under this Agreement or any Order issued hereunder or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, pandemic, quarantine, government shutdown, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation will be extended for the time period lost by reason of the delay. 
(f) Conflicting Terms. The parties agree that the terms and conditions of this Agreement will prevail over any contrary or additional terms, in any Order, sales acknowledgment, confirmation or any other document issued by either party effecting the purchase and/or sale of Products. 
(g) Headings. Headings of paragraphs herein are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. 
(h) Notice. Any notice, communication or statement relating to this Agreement will be in writing and deemed effective upon delivery: (i) in person; (ii) by verified facsimile transmission; or (iii) by registered or certified mail, postage prepaid, return receipt requested, to the address set forth in the Cover Page, provided, however, that either party may change the recipient and / or address for notice upon written notice to the other in accordance with the provisions of this Section 15(h).
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior understandings (whether written, verbal or implied) with respect thereto. Amendments to this Agreement must be in writing and signed by a duly authorized officer of each party. The Parties agree that the terms and conditions of this Agreement will prevail, notwithstanding any contrary or additional terms in any of the parties’ pre-printed documents, unless explicitly agreed to in writing by both parties. 
(j) Governing Law; Exclusive Jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods; rather this Agreement will be exclusively governed by and construed solely in accordance with the laws of Kansas, without reference to conflict of law principles. Hyer and Retailer agree that: (i) courts located and having jurisdiction in Overland Park, Kansas will have personal jurisdiction over them and such courts have exclusive jurisdiction over this Agreement, (ii) Overland Park, Kansas is the sole, exclusive and appropriate venue for any litigation arising under this Agreement and (iii) all such litigation must be conducted in Kansas, unless otherwise agreed in writing by all parties. 
(k) Attorneys’ Fees and Costs. The prevailing party to any litigation arising out of this Agreement will be entitled to recover its costs and expenses (including reasonable attorneys’ fees) from the other party. 
  1. MODIFICATION; AMENDMENT. 
No modification of, or amendment to, this Agreement will be effective unless in writing signed by both parties. This Agreement will not be supplemented or modified by any course of dealing or other trade usage.
Exhibit A
GUARANTY
 
In consideration of the substantial direct and indirect benefits derived by Guarantor from the transactions under this Agreement, and in order to induce Hyer to enter into this Agreement, the undersigned [parent/subsidiary/affiliate/[DESCRIPTION OF GUARANTOR’S RELATIONSHIP TO RETAILER]] of Retailer (“Guarantor”), as principal obligor and not merely as surety, hereby absolutely, unconditionally and irrevocably guarantees to Hyer the payment of all obligations of Retailer under this Agreement, plus all costs, expenses and fees (including the reasonable fees and expenses of Hyer’s counsel) in any way relating to the enforcement or protection of Hyer’s rights hereunder (collectively, the “Obligations”). 
 
(a) Guarantor acknowledges receipt of direct or indirect benefits, or both, from the underlying Agreement (the Hyer Authorized Retailer Agreement). 
(b) Guarantor agrees that whenever Retailer does not pay any of the Obligations as and when they fall due, Guarantor shall promptly pay such Obligations to Hyer upon written demand made upon Guarantor by Hyer at the address set forth below.
(c) This guaranty is a guaranty of payment and not of collection. Hyer shall not be obligated to enforce or exhaust its remedies against Retailer or under this Agreement before proceeding to enforce this guaranty.
(d) Guarantor agrees that this guaranty is irrevocable and continuing in nature and applies to all presently existing and future Obligations, and further agrees that its liability hereunder shall not be discharged or impaired by (i) any amendment to this Agreement; (ii) any bankruptcy, insolvency, reorganization or other event of Retailer that results in any payment of the Obligations being voided, rescinded or returned by Hyer, in which case this guaranty shall be reinstated; or (iii) any circumstances whatsoever that constitute a defense or a legal or equitable discharge of a guarantor or surety, whether foreseen or unforeseen. Guarantor hereby unconditionally and irrevocably waives each and every such defense and any right to revoke this guaranty.
(e) This guaranty shall be governed by and construed under the laws of the State of Kansas, without reference to any choice of law doctrine. Any action to enforce this guaranty against Guarantor may be brought in any court having jurisdiction thereof.