Your application to resell products of BrainGear Enterprises, Inc., a Delaware corporation (“BrainGear” and your application being the “Reseller Application”), is subject to acceptance by BrainGearBrainGear. Upon acceptance, the Reseller Application, together with the following Reseller Terms and Conditions (“Terms and Conditions”), shall constitute the entire agreement (the “Reseller Agreement”) between BrainGear and the individual or entity identified on the Reseller Application (“Reseller”). The Reseller Agreement sets forth BrainGear’s and Reseller’s rights and duties and contains important information about the resale and promotion of BrainGear products (“BrainGear Products”). Reseller represents and warrants that she, he or it has read, understands, and agrees to abide by the Reseller Agreement, including, but not limited to, the agreement to arbitrate set forth in Section 11 below and the class action wavier set forth in Section 12 below, that the information provided on the Reseller Application is accurate and complete, and that Reseller may perform her/his/its obligations without breach of any other agreement. The Reseller Agreement contains the entire agreement between BrainGear and Reseller and supersedes and replaces any and all prior representations, warranties, negotiations, and agreements with respect to the subject matter hereof. BrainGear may at any time revise these Terms and Conditions by posting the amended Terms and Conditions on the BrainGear website located at www.braingear.me or any successor URL (the “BrainGear Website”) and any changes or additions shall be effective immediately upon posting. Resellers must check the BrainGear Website frequently for revisions to these Terms and Conditions.
Purpose; Independent Contractor
Reseller is not, and shall not represent herself, himself or itself to be an employee, agent, affiliate, or representative of BrainGear or a purchaser of a franchise or a business opportunity. The Reseller Agreement does not create an employee/employer relationship, agency, partnership, or joint venture between BrainGear and Reseller. Reseller shall not be treated as an employee of BrainGear for any purpose, including without limitation, for federal, state or local tax purposes or receipt of any BrainGear employee benefits. Reseller is solely responsible for all decisions made and all costs incurred with respect to her, his or its Reseller activities, and will assume all entrepreneurial and business risk in connection therewith. Reseller is solely responsible for all income tax returns and payments required to be filed with or made to any tax authority with respect to her/his/its activities. BrainGear will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on Reseller’s behalf.
Reseller agrees to: (a) conduct her/his/its Reseller activities with a high standard of professionalism and in a manner that reflects favorably at all times on BrainGear and BrainGear Products; (b) avoid deceptive, misleading, or unethical practices; (c) make no representations, warranties, or other statements with respect to BrainGear Products or any business opportunity that are different from or in addition to those in the Reseller Agreement and BrainGear marketing materials; (d) not attempt to bind BrainGear to any agreement, or pursue, waive, or compromise any of BrainGear’s rights (or purport to do any of the foregoing); (e) reverse engineer any BrainGear Product or attempt to reformulate, manufacture, or produce any BrainGear Products or any product substantially similar to BrainGear Products; (f) periodically review these Terms and Conditions, as amended and from time to time and posted on the BrainGear Website; and (g) otherwise comply at all times with, and accept exclusive liability for non-compliance with, all applicable laws, regulations, rules, and these Terms and Conditions.
Product Ordering and Sales; No Inventory Requirements
Reseller understands that although there are minimum purchase requirements, as detailed on the BrainGear Website, there is no minimum inventory requirement. Reseller and end-user customers may purchase BrainGear Products through the BrainGear Website. BrainGear may accept or decline any order for BrainGear Products, and may cancel or delay shipment of BrainGear Products for any reason, including without limitation if Reseller fails to make any required payment or otherwise fails to comply with the Reseller Agreement. Title and risk of loss to the BrainGear Products shall pass to Reseller on delivery of the BrainGear Products to Reseller by the carrier of BrainGear’s choice. BrainGear has the right to communicate and do business with any and all customers acquired through Reseller’s efforts without restriction of any kind.
Sales and Marketing Restrictions; No Third-Party Platforms
Reseller may not market or sell the BrainGear Products in retail outlets or other locations open or available to the public. Reseller shall not market or sell BrainGear Products on websites or domains that are not owned or operated by Reseller, including Amazon (US, CA, MX, UK, FR, DE, IT, IN, CN, JP), Walmart, Jet, eBay, Rakuten, Alibaba, Alibaba Express, Groupon, LivingSocial, or other deal sites or third-party platforms or marketplaces. Reseller shall promote BrainGear Products only by using images and product descriptions that are provided by BrainGear to Reseller for download here (the “Authorized Marketing Materials”). In the event that Reseller desires to use any marketing material other than the Authorized Marketing Materials must request approval for such use by Reseller sending a written request to firstname.lastname@example.org. BrainGear may, in its sole discretion, grant or deny Reseller’s request.
Minimum Advertised Price
Reseller may sell BrainGear on their own website. However, Reseller shall not market or sell any BrainGear Product at below the minimum advertised price (“MAP”) set by BrainGear and as otherwise communicated in writing to Reseller from time to time. In addition, Reseller may not offer any specialized pricing, such as “Two-for-One,” “Buy Two, Get One Free,” or any “Value Packs” that would have the effect of reducing the per unit MAP.
Reseller is solely responsible for collecting and remitting applicable sales taxes to the appropriate tax agencies based on the purchase price of the BrainGear Products sold to Reseller’s customers.
Customer and Reseller Refunds and Returns
Reseller acknowledges and agrees that Reseller is solely responsible for returns of BrainGear Products purchased from Reseller by a Reseller customer. BrainGear will only accept Reseller returns of BrainGear Products that are unopened, in original packaging, undamaged, marketable by BrainGear and returned to BrainGear within 30 days of purchase by Reseller.
BrainGear Content and Confidential Information
BrainGear is and shall be the sole and exclusive owner of all rights, title, and interest in and to BrainGear’s registered and unregistered trademarks and service marks (collectively, “BrainGear Trademarks”), website copy, slogans, marketing materials, look-and-feel, and all intellectual property and proprietary rights therein (collectively, “BrainGear Content”), subject only to the specific licenses granted to Reseller in the Reseller Agreement, and BrainGear expressly reserves all such rights. Except as expressly set forth in the Reseller Agreement, Reseller shall not acquire or claim any rights in any BrainGear Trademarks or BrainGear Content.
“Confidential Information” means any trade secret, manufacturing process, formulae or other confidential information relating to the business affairs, accounts, works, marketing plans, sales plans, prospects, research, management, financing, products, inventions, designs, processes and any data bases, data surveys, customer lists, specifications, drawings, records, reports, software or other documents, material or other information whether in writing or otherwise concerning BrainGear or any of its customers or suppliers to which Reseller, Reseller’s employee or Reseller’s agents gain access.
Reseller shall not use or disclose any Confidential Information of BrainGear except as expressly permitted by this Reseller Agreement. BrainGear hereby gives notice to Reseller of the whistleblower protections of the Defend Trade Secrets Act. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. Reseller agrees to give notice to Reseller’s employees, if applicable, of the protections of this provision with regards to any confidential information or trade secrets that are subject to this Reseller Agreement.
Warranty; Defective Product Returns; Disclaimer
BrainGear warrants that the BrainGear Products as and when delivered by BrainGear shall be free from material defects. BrainGear’s sole obligation, and Reseller’s sole and exclusive remedy, for breach of this warranty shall be to report any damaged or defective BrainGear Product within 10 days following receipt of such BrainGear Product from a BrainGear approved shipper, return such damaged or defective BrainGear Product within 30 days from receipt accompanied by a valid Return Authorization Number supplied by BrainGear, and receive a replacement or credit. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAINGEAR HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE BRAINGEAR PRODUCTS, THE BRAINGEAR TRADEMARKS, THE BRAINGEAR CONTENT, AND ANY OTHER SUBJECT MATTER OF THE RESELLER AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF CONTENT, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, AND CORRESPONDENCE TO DESCRIPTION.
Any claim or dispute arising under or relating to the Reseller Agreement (whether arising in contract, tort, claim of fraud or fraudulent inducement, or otherwise) that cannot be resolved through negotiation shall first be mediated in San Francisco, California, and if it cannot be resolved by mediation, is subject to and shall be settled exclusively by final, binding arbitration before a single arbitrator in San Francisco, California, in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any provision of the Reseller Agreement, or to rule upon or grant any extension, renewal, or continuance of the Reseller Agreement. The arbitrator shall not have the power to award special, incidental, indirect, punitive or exemplary, or consequential damages of any kind or nature, including, without limitation, damages for lost profits, lost business, or lost opportunities, however caused. All arbitration proceedings will be confidential. Although the Reseller Agreement is made and entered into between Reseller and BrainGear, BrainGear’s affiliates, owners, members, managers, and employees (“Related Parties”) are intended to be third-party beneficiaries of the Reseller Agreement for purposes of the provisions of this Reseller Agreement referring specifically to them, including this agreement to arbitrate. The parties acknowledge that nothing contained herein is intended to create any involvement by, responsibility of, or liability for, the Related Parties with respect to any dealings between Reseller and BrainGear, and the parties further acknowledge that nothing contained herein shall be argued by either of them to constitute any waiver by the Related Parties of any defense which Related Parties may otherwise have concerning whether they can properly be made a party to any dispute between the parties.
Class Action Waiver
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither Reseller nor BrainGear will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY OR ANY FAILURE OF ESSENTIAL PURPOSE, IN NO EVENT SHALL BRAINGEAR OR ANY OF ITS RELATED PARTIES BE LIABLE TO RESELLER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST BUSINESS, AND LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE RESELLER AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING, BUT NOT LIMITED TO, THE BRAINGEAR PRODUCTS, PROGRAM, BRAINGEAR MARKETING MATERIALS, OR BRAINGEAR BUSINESS SUPPLIES), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF BRAINGEAR OR ANY OF ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Reseller hereby agrees to indemnify, defend, and hold harmless BrainGear (together with its Related Parties, agents, other Resellers, stockholders, members, employees, directors, officers, and attorneys, collectively “Indemnified Parties”) from and against any and all losses or liabilities (including attorneys’ fees) they may suffer or incur as a result of Reseller’s breach or alleged breach of the Reseller Agreement, including, but not limited to, violation of any applicable laws. Without limitation of the foregoing, Reseller shall specifically indemnify the Indemnified Parties against any losses or liabilities they may suffer or incur as a result of Reseller being deemed an employee, agent, or holding any status other than an independent contractor to BrainGear, and Reseller’s tax liabilities.
The term of the Reseller Agreement shall commence on the date of BrainGear’s acceptance of Reseller’s Application and continue until the date which is 30 days following the date on which either BrainGear or Reseller gives the other written notice of termination.
BrainGear shall not be liable to any Reseller for damages of any kind solely as a result of terminating the Reseller Agreement, and termination of the Reseller Agreement shall be without prejudice to any other right or remedy of BrainGear under the Reseller Agreement or applicable law. Upon any expiration or termination of the Reseller Agreement, the following sections of these Terms and Conditions shall survive and continue full force and effect: Sections 3, 7 through 16.
The Reseller Agreement shall be governed by the law of California without giving effect to any choice of law rule that would cause the application of laws of any jurisdiction other than the laws of California. If any provision contained herein is found by a court of competent jurisdiction or an arbitrator to be invalid, illegal, or unenforceable in any respect, such provision shall be ineffective, but shall not in any way invalidate or otherwise affect any other provision. The Reseller Agreement may not be assigned by Reseller without the express written permission of BrainGear, but may be freely assigned by BrainGear, and shall be binding on each of the parties’ successors and permitted assigns. Any attempted assignment in violation of this Section shall be void. A party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing via U.S. mail, (iii) the first business day after mailing by nationally recognized overnight delivery service, (iv) the second business day after sending by confirmed facsimile, or (v) the first business day after sending by email. Notices to Customer shall be addressed to the relevant contact designated by Customer on the Reseller Application. All notices to BrainGear shall be sent to: BrainGear, 3035 Van Ness Avenue, San Francisco, CA 94109, Attention: Legal Department.