Last Updated on January 20, 2017.

DISTRIBUTOR TERMS AND CONDITIONS

THIS DISTRIBUTOR TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNS YOUR USE OF THE ONLINE DISTRIBUTION SERVICE MADE AVAILABLE TO THE DISTRIBUTORS PARTICLE INDUSTRIES, INC. (“WE,” “US,” OURS”) AT (https://wholesale.particle.io) (THE “DISTRIBUTOR WEB PORTAL”) DISTRIBUTION OF THE ITEMS LISTED IN THE DISTRIBUTOR WEB PORTAL (EACH, A “PRODUCT”). THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE (THE “EFFECTIVE DATE”) YOU INDICATE YOUR ACCEPTANCE OF THE AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A ORDERING DOCUMENT OR ONLINE ORDER SPECIFYING THE PRODUCTS TO BE PROVIDED HEREUNDER THAT REFERENCES THIS AGREEMENT (EACH, AN “ORDER”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT DISTRIBUTE OUR PRODUCTS.

  1. DISTRIBUTORSHIP

  1. Application. You may apply to become a distributor of Our Products by submitting an application for access to the Distributor Web Portal. If We approve Your application, We will send You a confirmation email and provide You with access to the Distributor Web Portal.

  1. Appointment. Subject to the terms and conditions of this Agreement, including but not limited to Your approval as a distributor of Our Products, We appoint You as the non-exclusive, worldwide distributor for the Products (as defined below) via the online tools and websites, which are owned and operated by You, and You accept the appointment.

  1. Products. We reserve the right to discontinue or modify the Products, modify the Product specifications, or replace the Products with other products at Our sole discretion.

  1. YOUR RESPONSIBILITIES

  1. Account Information. You agree to maintain the accuracy of the data contained in your Distributor Web Portal account including, but not limited to the URLs associated with the websites through which You distribute the Products.

  1. Covenants with Respect to Marketing Practices. You will (i) not engage in illegal or deceptive trade practices; and (ii) otherwise operate Your business in a professional and ethical manner, in accordance with this Agreement.

  1. Support. During the term of this Agreement and for three (3) months following its termination or expiration, You agree to offer non-technical, customer support to your Customers with regard to the Products.

  1. Local Regulations Relating to Products. You warrant to Us that the Products conform with all laws and regulations affecting the manufacture, sale, packaging and labeling of Products which are in force within the area(s) You intend to distribute the Products (“Local Regulations”) at the date of this Agreement. You further agree to give Us as much advance notice as reasonably possible of any prospective changes in the Local Regulations.

  1. OUR RESPONSIBILITIES. We shall :

  1. OPERATION OF DISTRIBUTORSHIP

  1. Product Orders. You shall purchase the Products hereunder by issuing a Order to Us. We may require You to order minimum quantities of certain Products and/or to meet a minimum Order value. Particle reserves the right to not fulfill any Order for any reason or no reason.

  1. Packing and Shipping. Subject to any shipping instructions You provide in a Order, We shall, at Our expense, pack all Products in accordance with Our standard packing procedure, which shall be suitable to permit shipment of the Products to Your customers; Risk of loss and damage to the Products shall pass to You upon the delivery of the Products to the common carrier of your choice at our factory and/or warehouse. If you do not indicate a preferred carrier, We will deliver the Products to you using our standard carrier.
  2. Inspection. You shall inspect Products received under this Agreement within five (5) business days receipt (the "Inspection Period") of the Products. If any Products do not conform to the specifications set forth either in this Agreement or on the Product’s packaging, You agree to notify Us in writing during the Inspection Period and furnish ay written evidence or other documentation as required by Us. Upon Your timely notification, We shall determine, in our sole discretion, whether the Products are nonconforming. If We determine that the Products are nonconforming, We shall either, in Our sole discretion: (i) replace the nonconforming Product(s) with conforming Product(s), or (ii) refund to You an amount equal to the price You actually paid for each nonconforming Product. If We elect to replace the nonconforming Products, We shall ship to You, at Our expense, the replacement Product(s) pursuant to the sub-section above titled Packing and Shipping.

  1. PRICING

  1. Purchase Price. We shall sell Products to You at the prices listed in the Distributor Web Portal and You shall be liable for payment of the purchase price of all Products ordered under this Agreement. We may change Our prices at Our sole discretion and at any time.

  1. Taxes. You will be solely responsible for any national, provincial or local sales, use, value added or other tax, tariff, duty or assessment levied or imposed arising out of or related to any of the transactions contemplated under this Agreement, other than any tax based on Our net income. You will pay directly, or reimburse Us for, the amount of such sales, use, value added or other tax, tariff, duty or assessment which We are at any time obligated to pay or collect. You further agree to provide Us on request with a copy of any applicable tax exemption certificate or resale permit.

  1. PAYMENT

  1. Payment Forms. You agree to pay all fees as stated on Your Order, including any fees incurred as a result of Your chosen form of payment.  All payments due to Us hereunder will be made by credit card, wire transfer or in another form acceptable to Us. If You provide Us with valid credit card information, You authorize Us to charge such credit card for the amount of Your purchase.  All payments will be made in United States dollars, free of any withholding tax, and of any currency control or other restriction.

  1. Payment Terms. We will generally invoice You immediately upon Your submission of each Order. Invoices for Orders submitted subject to Our rights under the subsection titled Credit Terms below, shall be due and payable by You thirty (30) days from the date of the invoice. Any balances outstanding, but unpaid, after the date payment is due on an invoice to You, shall accrue interest at a rate of 1.5% per month or such maximum lesser rate as may be permitted by law. Such accrual of interest will be in addition, and not in limitation of, any other rights or remedies which We may have under this Agreement or at law in equity.

  1. Unsatisfactory Credit Status. If Particle determines in its sole discretion that Your financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Our other rights under this Agreement, at law, or in equity, We may without liability or penalty, take any of the following actions: (i) on five (5) Business Days' prior notice, modify the terms set forth in the subsection titled Payment Terms above for outstanding and future purchases, including requiring You to pay cash in advance or cash on delivery; and/or (ii) 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 Us.

  1. LICENSES

  1. Your Use of Our Trademarks. While this Agreement continues in force, You may use the applicable trade names, service marks, and trademarks in connection with the advertisement and sale of each Product and to refer to and advertise Yourself as an authorized distributor of the Products.  

  1. Our Use of Your Trademarks. While this Agreement continues in force, We may use Your applicable trade names, service marks, and trademarks to refer to and advertise You as an authorized distributor of the Products.

  1. Open Source Software. You understand that the hosted software we provide for Your customers to use with the Products (the “Hosted Software”) may include software components that are subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement (each, an “Open-Source License”) that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled (each, an “Open-Source Component”). Any use of the Open-Source Component(s) by You or your customers shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).

  1. CONFIDENTIALITY

  1. Confidential Information. From time to time during the term if this Agreement, either Party may disclose or make Confidential Information available to the other Party. “Confidential Information” includes, but is not limited to:

Confidential Information shall not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by receiving party on a non-confidential basis from a third party.

  1. Disclosure. The receiving party shall not disclose any such Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to perform its obligations hereunder. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.

  1. TERM AND TERMINATION

  1. Term. This Agreement shall commence on the Effective Date and remain in effect for as long as You maintain an active account on the Distributor Web Portal.

  1. Termination. Either party may terminate this Agreement at any time for any reasons or no reason.  No termination of this Agreement will release You from your obligation to pay Us any amounts which accrued prior to the date of termination or which will accrue to Us after the date of termination. If We terminate this Agreement, We will notify you via the email address associated with your account. If You wish to terminate the Agreement, simply close your account on the Distributor Web Portal by sending Us an email to distribution@particle.io requesting that Your account be closed. .

  1. Remaining Inventory. You may continue to market the Products that remain in Your inventory after the termination date until such time as such inventory is exhausted, provided that You will comply fully with all of the terms and conditions of this Agreement applicable to the marketing of Products. If at any time You fail to comply with such terms and conditions, You will cease all marketing of Products immediately upon notice from Us.

  1. Survival of Certain Terms. All provisions that by their nature are intended to survive termination or expiration of this Agreement shall remain in full effect, including but not limited to, Sections 2(c), 2(b) and 2(d) to the extent that You elect to exercise Your rights under 9(c) above, 6, 8, 9(c), 10, 11, 12, and 13. All other rights and obligations of the parties shall cease upon termination or expiration of this Agreement.

  1. WARRANTIES AND DISCLAIMERS

  1. Company Warranty. Each party hereby represents and warrants to the other that: (a) it has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder and has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (b) the execution and delivery of this Agreement and the performance of such party's obligations hereunder do not and will not conflict with or violate any requirement of applicable laws or regulations.

  1. Product Warranty. We make no warranties or representations as to the Product to You or to any other person. We reserve the right to change Our returns policy, at any time, without further notice and without liability to You or any other person.

  1. Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY STATED IN THIS SECTION TITLED WARRANTIES AND DISCLAIMERS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITH REGARD TO PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, AND OF ALL OTHER PRODUCT WARRANTY OBLIGATIONS OR LIABILITIES ON OUR PART. WE NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR US ANY OTHER LIABILITIES. THE FOREGOING CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR THE FURNISHING OF DEFECTIVE OR NONCONFORMING PRODUCTS.

  1. LIMITATION OF LIABILITY. OUR LIABILITY, IF ANY, FOR DAMAGES RELATING TO ANY OF THE PRODUCTS WILL BE LIMITED TO ACTUAL AMOUNTS PAID BY YOU FOR SUCH PRODUCTS AND WILL IN NO EVENT INCLUDE LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES DIRECTLY OR INDIRECTLY ARISING FROM ANY PERSON'S USE OR INABILITY TO USE PRODUCTS EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT, OR FROM ANY OTHER CAUSE, EVEN IF WE HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE OR COST OF LABOR BY REASON OF THE FACT THAT SUCH PRODUCTS WERE DEFECTIVE OR NONCONFORMING. YOU UNDERSTAND AND AGREE THAT OUR SUPPLIERS  AND US SHALL HAVE NO LIABILITY TO YOUR CUSTOMERS AND THAT ANY RIGHTS SUCH CUSTOMERS MAY HAVE SHALL BE SOLELY AGAINST YOU.

  1. INDEMNIFICATION. You will defend and indemnify Us (including reasonable attorneys’ fees and costs of litigation) against and hold Us harmless from, any and all claims by Us or any third party arising out of or relating to Your acts (other than the mere marketing of the Products), omissions or misrepresentations, regardless of the form of action, including but not limited to, Your breach of the subsections titled Compliance with Laws, Restrictions on Exportation,  Import Licenses, and Local Regulations Relating to Products.

  1. GENERAL PROVISIONS

  1. Independent Contractors. The parties agree that they are independent contractors and each is engaged in the operation of its own business. Neither party will be considered the agent of the other for any purpose whatsoever. Nothing contained in this Agreement will be construed to establish a relationship that would allow either party to make representations or warranties on behalf of the other except as expressly provided by this Agreement. The parties agree that this Agreement does not establish a franchise, joint venture or partnership.

  1. Compliance with Laws. You will comply with all applicable federal, state, regional and local laws and regulations, including but not limited to, all applicable consumer protection, privacy, and games and sweepstakes laws and regulations, in performing your duties hereunder, and in any of your dealings with respect to the Products, and will take reasonable steps to ensure that each of Your  remarketers (if any) comply with all applicable national, state, regional and local laws and regulations in any of its dealings with respect to the Products. You shall keep Us informed in writing of regulatory requirements, and any changes thereto, imposed by the laws of any territories where You are offering Products for sale and on any and all efforts made by You to comply therewith. Without limiting the generality of the foregoing, when shipping batteries to Your customers, You shall comply with the International Air Transport Association (IATA) (http://www.iata.org/whatwedo/cargo/dgr/Pages/lithium-batteries.aspx) and the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) regulations (http://phmsa.dot.gov/hazmat).

  1. Restrictions on Exportation. You will not, without assuring compliance with U.S. and all applicable export laws and regulations administered by the U.S. government and/or local governmental authorities, that exist now or as amended, export or re-export (directly or indirectly), divert, or transship any Product purchased from Us, technical data, or a direct product thereof: (i) to any country subject to embargo or special export controls by the U.S. Department of the Treasury or other U.S. agency, (ii) to any country subject to national security controls, (iii) to any persons or entities identified on the U.S. Denied Person’s List, Entities List, Specially Designated Nationals List or other lists published by the U.S. Government, or (iv) for the design, development, production or use of prohibited items, or for any prohibited end uses, including terrorism support, military use, nuclear activities, missile technologies, or chemical or biological weapons. You as the exporter, re-exporter, or importer are responsible for ensuring that the Products are exported in accordance with the country specific trade compliance regulations, as well as, US Export Administration Regulations (EAR). Each Product has a respective Export Control Classification Number (ECCN) (per the United States Department of Commerce Export Administration Regulations), a Harmonized Tariff Schedule (HTS) code (per U.S. Customs and Border Protection regulations, as well as from Customs authorities from Brazil, Canada, Columbia, EU, India, and Peru). End-user, end-use, and country of ultimate destination may affect export licensing requirements. You are urged to consult the Export Administration Regulations, the Bureau of Industry and Security’s Export Counseling Division, and other appropriate sources concerning restricted/prohibited uses and the exportation/re-exportation of the Products.  All export information and assistance provided by Us  is provided for informational purposes only. We make no representation or warranty as to the accuracy or reliability of such regulations. Any use of such regulations by You is at Your own risk. We are  in no way responsible for any damages whether direct, consequential, incidental, or otherwise, suffered by You as a result of using or relying upon such regulations for any purpose whatsoever.

  1. Import Licenses. You shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products into the Your area of distribution, or their delivery to You. You shall be responsible for any customs duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and delivery of the Products.

  1. Notices and Modifications. We may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Distributor Web Portal, as determined by Us in our sole discretion. We reserve the right to determine the form and means of providing notifications to You, provided that You may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering You or Your network provider may apply to email notifications We send to the email address You provide Us. We may, in Our sole discretion, modify or update this Agreement from time to time, and so You should review this page periodically. When We change the Agreement in a material manner, We will update the ‘last modified’ date at the top of this page. Your continued distribution of Our Products and/or use of the Distributor Web Portal after any such change constitutes your acceptance of the new Distributor Terms and Conditions. If you do not agree to any of these terms or any future Distributor Terms and Conditions, You may terminate this Agreement.

  1. Assignment of Contract. You shall not assign this Agreement or Your rights or obligations hereunder without Our prior written consent. Any attempt to make such an assignment without Our consent shall be void.

  1. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

  1. Governing Law. These Terms will be governed according to the laws of California. The Superior Court of the County of San Francisco or the United States District Court for the Northern District of California will have jurisdiction and venue for all controversies arising out of, or relating, to this Agreement. The parties expressly waive the applicability of the UN Convention on Contracts for the International Sale of Goods and it will not apply to the terms and conditions of this Agreement. The prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred in any litigation arising under this Agreement.

  1. Class Action/Jury Waiver. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

  1. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreement You may enter into with Us in connection with the distribution of Our Products shall constitute the entire agreement between You and Us relating to the subject matter of this Agreement. Your Orders shall be governed by the terms and conditions of this Agreement and notwithstanding the content of Your Order, this Agreement shall take precedence over such Orders. Any conflicting, inconsistent, or additional terms of Your Order shall be null and void, and are hereby waived by You. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.