A.) ELINA makes skincare products (the “Products”) for use by skin care professionals and for retail sale by such skin care professionals (the “Distributor”). The Distributor is a licensed professional in good standing through Distributor’s state licensing bureau or department either as a licensed esthetician, cosmetologist, massage therapist or like profession.
B.) ELINA sells its products to Distributors with the requirement that the Distributor shall comply with ELINA’s best practices for utilizing and marketing the Products. Such best practices include all of the requirements for maintaining licensure by the Distributor’s state licensing agency, as well as such standards of care set by ELINA and the Association for Holistic Skin Care Practitioners (AHSCP). Because ELINA believes that a Distributor’s ability to fulfill such requirements assures the Product maintains its unique value and exclusive character, ELINA takes great care to be sure that its Distributors are qualified to use and market the Products.
C.) Distributor desires to purchase the Products for use with and retail sale to its consumers subject to the terms and conditions of this Agreement.
D.) ELINA is willing to sell the Products to Distributor subject to the terms and conditions in this Agreement.
1.) Grant of Rights. ELINA grants to Distributor the exclusive right to promote, distribute, and sell the Products identified on Exhibit 1 in the Territory described in paragraph 4, below, for the period of one (1) year, to be renewed automatically, unless Distributor is given notice by ELINA not less than 30 days prior to the end of the term of ELINA’S intent not to renew this Agreement.
2.) Required Standards of Practice. As a requirement of the right to sell the Products, Distributor agrees that Distributor shall comply with the following minimum standards of practice in the use and sale of the Products:
- Distributor or Distributor’s principal shall be licensed in good standing in the state in which Distributor conducts business as an esthetician, cosmetologist, massage therapist, medical doctor or doctor of osteopathic medicine, physical therapist or similarly licensed;
- Distributor shall not sell the Products beyond their expiration date. Distributor shall promptly return such expired product to ELINA for exchange at no charge to Distributor not more than thirty (30) days following the expiration date (or in the case of seasonal Products, not more than thirty (30) days following the end of the season;
- Distributor shall participate in all scheduled Distributor continuing education conference calls and workshops with ELINA, or confirm that Distributor has made arrangements to obtain such continuing education through confirmed alternative means;
- Distributor shall attend the Annual Holistic Skin Care Conference. If Distributor cannot attend for any reason, they MUST obtain 12 hours continuing education directly with ELINA ORGANICS either in Kalamazoo, Pompano Beach locations or through regional educational events of ELINA ORGANICS or online workshops.
- Distributor shall certify to ELINA on request that Distributor is trained or otherwise utilizing up to date professional skin care protocols and that Distributor is otherwise complying with AHSCP guidelines.
- Distributor shall provide ELINA with evidence that Distributor carries appropriate commercial general liability insurance, including professional liability coverage, naming ELINA as an additional insured on such policy.
- Distributor shall use its best efforts to attend the Annual Conference of AHSCP and/or participate in on-going AHSCP training.
ELINA shall sell the Products to Distributor for the price established in the ELINA wholesale price list then in effect, and as the wholesale price may be amended from time to time with thirty (30) days notice in writing from ELINA to Distributor.
Distributor shall have the right to distribute the Products in the territory set forth in Exhibit 2, attached to this Agreement (the “Territory”). In the event ELINA in its sole discretion decides to make the right to distribute the Products in the territory directly adjacent to the Territory assigned to Distributor pursuant to this Agreement becomes available, Distributor shall have ten (10) days to exercise the right to distribute the Product in such adjacent territory.In the event Distributor exercises the right on written notice to ELINA, it shall do so pursuant to the then existing term of this Agreement.
From time to time, ELINA shall provide Distributor with sample advertising materials for selected Products. Distributor, at its cost may reproduce such materials, provided, however, that Distributor must obtain ELINA’S final approval in writing for any changes to the samples of advertising. All of Distributor’s advertising shall conform to standards that ELINA approves from time to time. Distributor shall submit for ELINA’S consent, prior to use, samples of all proposed advertising and promotion for which ELINA has not previously provided express written consent. If ELINA does not notify Distributor within ten (10) days from the date of receipt by ELINA that ELINA withholds consent, then ELINA shall be deemed to have consented to the proposed advertising or promotion. Distributor shall, at Distributor’s own expense, advertise and promote the Products in its establishment.
6.) Distributor’s Duties
Distributor shall use Distributor’s best efforts to promote and sell the Products in the establishment.
Distributor shall maintain such minimum levels of inventory of the Products as are appropriate to satisfy Distributor’s anticipated demand from time to time. ELINA will review sales performance based on ordering and return patterns. We will review this on a case by case basis.
8.) Payment and Shipping Terms
Unless otherwise agreed to in writing between ELINA and Distributor, Distributor shall pay for all product and cost of shipping in advance.
Distributor acknowledges and agrees that (a) ELINA owns the trademark “ELINA” and owns and will develop other trademarks associated with ELINA (the “ELINA Marks”); (b) ELINA owns all rights, title, and interest in and to the ELINA Marks; and (c)all use of the ELINA Marks is for the benefit of ELINA. Distributor shall use the ELINA Marks only to identify, promote, and sell ELINA. Distributor shall not acquire any right, title, or interest in any of the ELINA Marks, except the right to distribute, promote, and sell products bearing the ELINA Marks pursuant to the terms of this Agreement.
ELINA warrants that the ELINA Products will generally conform to the ingredient specifications on the product package. ELINA makes no warranty of any kind other than as expressly stated herein. ELINA DISCLAIMS ANY EXPRESSED OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
11.) Limit of Liability
ELINA SHALL NOT BE LIABLE TO DISTRUBTOR OR TO ANY OTHER PERSON OR ENTITY FOR ANY COST, EXPENSE, LOSS OF PROFIT, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, OR FOR OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGE, COST, LOSS, OR EXPENSE OF ANY KIND. ELINA SHALL NOT BE LIABLE FOR ANY MISREPRESENTATION OR WARRANTY MADE BY DISTRIBUTOR OR ANY AGENT OF DISTRIBUTOR, OR ANY OTHER PERSON OR ENTITY OTHER THAN ELINA. IF FOR ANY REASON THE EXCLUSION OF DAMAGES IN THIS PARAGRAPH IS NOT ENFORCEABLE OR VOID, THEN ELINA’S LIABILITY TO DISTRIBUTOR OR OTHERS SHALL NOT IN ANY EVENT EXCEED THE AMOUNT ACTUALLY PAID BY DISTRIBUTOR TO ELINA FOR THAT PORTION OF THE PRODUCTS INVOLVED, OR IF THE MATTER DOES NOT DIRECTLY INVOLVE SPECIFIC PRODUCTS, THEN FOR THE PORTION OF THE PRODUCTS MUST CLOSELY RELATED TO THE MATTER.
Distributor is an entity duly organized, validly existing and in good standing under the laws of the appropriate jurisdiction in which it is registered.
Execution and delivery of this Agreement has been duly authorized by appropriate action, and this Agreement constitutes a valid, binding and enforceable obligation of Distributor.
Distributor shall indemnify, defend, and hold harmless ELINA and all shareholders, directors, officers, employees, attorneys, and agents of ELINA for, from, and against all claims, actions, government inquiries, investigations, liability, demands, loss, damage, and attorney’s fees resulting or arising from, or directly or indirectly relating to; (a) the operation of Distributor’s business; (b) advertising by Distributor; or (c) the breach or possible breach by Distributor of this Agreement.
15.) No Transfer by Distributor
Distributor acknowledges that ELINA entered into this Agreement in reliance on and consideration of the personal skill and qualifications of Distributor. Therefore, Distributor shall have no right or power to, and shall not, assign, sell, or transfer, voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise, any or all of this Agreement or any of Distributor’s rights or interest in this Agreement or in Distributor, without ELINA’s prior written consent. Any purported agreement, sale, or transfer made without such consent shall be void and of no effect, Distributor shall have no right to and shall not pledge, encumber, hypothecate, or otherwise grant any security interest in this Agreement or any aspect of the business being conducted pursuant to this Agreement without ELINA’s prior written consent. Any purported pledge, encumbrance, hypothecation, or security interest made without such consent shall be void and of no effect.
Distributor shall be deemed to be in default and all rights granted in this Agreement shall automatically terminate without notice to Distributor, if Distributor becomes insolvent or makes a general assignment for the benefit of creditors; if a petition in bankruptcy is filed by Distributor or a bankruptcy petition is filed against and consented to by Distributor; if Distributor is adjudicated bankrupt; if a bill in equity or other proceeding for appointment of a receiver of Distributor or other custodian for Distributor’s business or assets is filed and consented to by Distributor; if a receiver or other custodian (permanent or temporary) of any of Distributor’s assets or property is appointed by a court of competent jurisdiction; or if proceedings for a composition with creditors under any state or federal law are instituted by or against Distributor. Distributor shall also be deemed to be in default, and ELINA shall have the right to terminate this Agreement, effective immediately on delivery of written notice of termination, on the occurrence of or within a reasonable time after ELINA learns that, at any time; Distributor (a) stopped operating the business contemplated by this Agreement or no longer has the right to transact business as a result of the suspension or termination of Distributor or Distributor’s principal’s license to practice its profession; (b) Distributor is convicted of a felony, a crime involving moral turpitude, or any crime or offense that ELINA considers likely, in ELINA’s sole opinion, to adversely affect Distributor’s operations or ELINA’s reputation or the reputation of the Products; (c) Distributor purported to sell, assign, or transfer any right or obligation arising under this Agreement contrary to the restriction in Paragraph 15 above; (d) Distributor falsified or attempted to falsify any record to be maintained by Distributor relating to the Products; (e) Distributor submitted any report to ELINA that misrepresented information, misled ELINA, or attempted to misrepresent or mislead; (f) Distributor failed to pay when due any amount owed to ELINA; or (g) breached any other provision of this Agreement and failed to cure the breach within ten (10) days after delivery by ELINA of written notice of breach and demand for cure.
17.) Other Termination by ELINA or Distributor
ELINA and Distributor shall have the right at any time to terminate this Agreement, effective on delivery to the other of at least thirty (30) days written notice of ELINA or Distributor’s election to terminate this Agreement.
18.) Stopping Operation
On termination of this Agreement, Distributor shall immediately stop and permanently refrain from (a) operating as a Distributor of ELINA; (b) directly or indirectly representing that Distributor is or was a distributor of ELINA and (c) distributing and selling the Products in any manner. On termination of this Agreement, and during a reasonable time before any anticipated termination; ELINA shall have the right to cancel any or all unfilled orders of Distributor for the Products. On termination of this Agreement, Distributor shall (a) stop and permanently refrain from all use of the ELINA Marks and from any representation that suggests or represents an association or connection with ELINA and (b) make such changes to any facilities as may be necessary to avoid use of the ELINA Marks and prevent any association of Distributor with ELINA. On termination of this Agreement, Distributor shall immediately return to EILNA all originals and all copies of written materials, whether or not provided to Distributor by ELINA, which contain any of the ELINA Marks or otherwise relate to distribution of the Products. Distributor shall not retain any copy of any of these materials, except that ELINA shall not object to Distributor retaining copies of (a) this Agreement; (b) correspondence between Distributor and ELINA; and (c) documents that Distributor needs for purposes of compliance with law.
19.) Repurchase Option
ELINA shall have the option (but not the obligation), exercisable any time during the thirty (30) days after termination of this Agreement, to repurchase from Distributor any or all resalable ELINA products in Distributor’s possession, at the prices that ELINA sold those ELINA products to Distributor. ELINA shall have the right to offset against the purchase price any indebtedness, liability, or obligation of Distributor to ELINA.
Distributor is an independent contractor. This Agreement does not and shall not be construed to establish any partnership, joint venture, employer-employee, principal-agent, fiduciary-beneficiary, or other relationship. Distributor shall hold itself out to the public only as an independent distributor of ELINA. Distributor shall take such action as ELINA requests for this purpose, including without limitation, displaying conspicuous notices of this fact as ELINA specifies from time to time.
21.) No Representation
Distributor shall not make or purport to make any guarantee, warranty, representation, or other commitment on behalf of ELINA, whether regarding the Products or any other subject. In response to any inquiry about any of the Products, Distributor shall refer the inquirer to ELINA’s printed literature containing information about the Products.
22.) Compliance with Laws
Distributor shall comply with all federal, state, and local laws, rules, and regulations and shall timely obtain all permits, certificates, licenses, and fictitious name and other registrations needed to lawfully conduct Distributor’s business.
Distributor shall notify ELINA in writing within five (5) days of the commencement of any action, suit, or proceeding, and of the issuance of any order, writ, injunction, award, or decree of any court, agency, or other government instrumentality, that may adversely affect the operation of financial condition of Distributor’s business.
24.) Entire Agreement
This Agreement, including its exhibits, is the entire Agreement between the parties and merges and supersedes all prior correspondence, negotiations, discussions, and oral and written agreements. Distributor acknowledges, represents, and warrants that Distributor has not received, and has therefore not relied on and was not induced to enter into this Agreement by, any statement of fact, representation, or warranty outside the express terms of this Agreement. This Agreement may be amended only by a written instrument executed by the parties.
If any provision of this Agreement is held to be indefinite, overbroad, invalid, or otherwise unenforceable, the remainder of this Agreement shall continue in effect. If a court of competent jurisdiction deems any provision of this Agreement (other than for payment of money) unreasonable, the court may declare a reasonable modification of this Agreement shall be valid and enforceable as so modified.
Governing Law. This Agreement provides for performance by ELINA at its location in Kalamazoo, Michigan USA, and shall be interpreted, construed, and governed by the laws of the state of Michigan without regard to conflicts of law principles.
26.) Attorney’s Fees
In any litigation between the parties, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other litigation costs from non-prevailing party.