Bombsheller Private Label Agreement
Revised September 1st, 2016

This Private Label Agreement (the "Agreement") is entered into by and between you or your company (“You”) and Bombsheller, a Washington Corporation (collectively, “Parties”).

This Agreement establishes the terms for a private label production and supply relationship between the Parties with respect to those products for which You place an order through Bombsheller under this Agreement that are accepted by Bombsheller (the “Products”), including terms hereinafter set forth and to establish terms, conditions and procedures for the production of the Products, and other "Private Label Attributes" (as defined below) and sale of such Products by Bombsheller to You.

By clicking the Submit button below, You acknowledge that You accept and agree to abide by the terms of this Agreement.

Authorization as Private Label Partner
Authorization. Bombsheller hereby authorizes you to act as a non-exclusive private label customer of products solely in accordance with the terms and conditions of this Agreement, unless agreed upon otherwise in writing. You hereby accept this authorization and will ensure compliance with the terms of this Agreement unless otherwise agreed in writing by Bombsheller.

Engagement of Bombsheller. So long as this Agreement remains in effect, Bombsheller shall sell to You, and You shall purchase and accept from Bombsheller, upon the terms and conditions set forth in this Agreement, in Bombsheller’s quotation and as otherwise agreed in writing between the Parties, such amount of the products as You may request from time to time.

You acknowledge and agree that the rights granted to You under this Agreement are nonexclusive and Bombsheller reserves the right to sell its products to any other Person, including wholesalers, retailers and customers worldwide.

General Performance Obligations
Marketing and Reselling Products. You shall, in good faith and at your own expense: market, advertise, promote and resell the Products to customers consistent with good business practices, in each case using commercially reasonable efforts to maximize the sales volume of the Products;

    only resell or offer to resell the Products that You currently have in inventory or that have been ordered from Bombsheller and which order has been accepted by Bombsheller as available for delivery to You, unless you have received prior written authorization from Bombsheller;

    develop and execute a marketing plan sufficient to fulfill your obligations under this Agreement;

    market, advertise, promote and resell Products and conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill and reputation of Bombsheller; and

No modifications. Except as explicitly authorized in this Agreement or in a separate written agreement with Bombsheller, You may not service, repair, modify, alter, replace, reverse engineer or otherwise change the Products you sell to customers.

Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, you shall not:

    make any representations, warranties, guarantees, indemnities, similar claims or other commitments to any customer regarding the Products, which representations, warranties, guarantees, indemnities, similar claims or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement;

    engage in any unfair, competitive, misleading or deceptive practices in regard to Bombsheller, Bombsheller’s Trademarks or the Products, including any product disparagement or "bait-and-switch" practices;

Co-branding. You acknowledge and agree that any Products that incorporate any designs, copyrights, trademarks, inventions, or other intellectual property rights owned by Bombsheller, in addition to the Private Label Attributes defined below, shall include Bombsheller’s name and/or logo (as determined by Bombsheller) on the Products and/or the packaging for the Products in such form and conspicuous location so as to indicate that the Products have been manufactured for You by Bombsheller.

Intellectual Property Rights
Private Label Attributes. You hereby grant Bombsheller a limited, non-exclusive, royalty free license to use the trademarks, trade names, trade dress, logos, graphics, packaging designs, artwork and any other branding intellectual property (“Private Label Attributes”) as specified in your order in connection with the production, labeling, and packaging of the Products.

Ownership. Subject to the express rights and licenses granted by Bombsheller in this Agreement, You acknowledge and agree that:

    any and all of Bombsheller’s Intellectual Property Rights are the sole and exclusive property of Bombsheller or its licensors;

    You shall not acquire any ownership interest in any of Bombsheller’s Intellectual Property Rights under this Agreement;
    
Bombsheller’s Retained Rights. You acknowledge and agree that as between You and Bombsheller, Bombsheller is and shall remain the sole and exclusive owner of all intellectual property rights with respect to the Products, except for any Private Label Attributes, and that Bombsheller retains the right to produce, market, distribute, use, and sell any and all of the Products without the Private Label Attributes anywhere in the world, without any duty or obligation to You, including, without limitation, under Bombsheller’s trade name, trademarks, or logos, or under private label names and designs other than the Private Label Attributes. You acknowledge and agree that all rights, title and interest with respect to any Product or any other intellectual property that You may in the future own by operation of law relating to the Products or any modifications or improvements thereof (other than the Private Label Attributes) are hereby assigned and shall be assigned by You to Bombsheller and that You shall not acquire any rights or ownership interest with respect to any intellectual property pertaining to the Products (other than the Private Label Attributes) through this Agreement or otherwise.

Prohibited Acts. You shall not:

    take any action that may interfere with any of Bombsheller's rights in or to Bombsheller’s Intellectual Property Rights, including Bombsheller’s ownership or exercise thereof;

    challenge any right, title or interest of Bombsheller in or to Bombsheller’s Intellectual Property Rights;

    make any claim or take any action adverse to Bombsheller’s ownership of Bombsheller’s Intellectual Property Rights;

    register or apply for registrations, anywhere in the world, for Bombsheller’s Trademarks or any other Trademark that is similar to Bombsheller’s Trademarks or that incorporates Bombsheller’s Trademarks in whole or in confusingly similar part;

    use any mark, anywhere, that is confusingly similar to Bombsheller’s Trademarks;

    engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Products) or any Bombsheller Trademark; and

    misappropriate any of Bombsheller’s Trademarks for use as a domain name without prior written consent from Bombsheller.

Returns and Exchanges/Customer Support
Customer Support. You shall, at your own expense, provide knowledgeable assistance to customers regarding Bombsheller’s products. You are responsible for any and all customer contact for support, exchange, or return issues related to the Products you sell. You acknowledge and accept that Bombsheller shall not be liable or responsible for any support, exchange, or return issues that may arise from You and/or your customers.

Returns and Exchanges. You shall, at your own expense, provide customers with returns and exchanges for any product you sell. Bombsheller will not accept a return or exchange request from your customer or You, on behalf of your customer. Your own terms of sale should be made clear to your customers at time of purchase.

Terms of Sale
Terms of the Sale. Bombsheller shall sell Products to you at discounted wholesale rate, which shall be determined by Bombsheller. Your pricing will be sent to you via email and made visible when you log into the Bombsheller website using your Private Label Account. All orders submitted by You are subject to Bombsheller’s written acceptance.

Orders. All orders are placed on the Bombsheller website using your Private Label Account.
Payment. Bombsheller accepts most forms of major credit card payments, including Visa, MasterCard, Discover, and American Express.

No Discount Retail. The Minimum Advertised Price (MAP) for each product ensures that Partners do not compete on price. This price will be sent to you via email. Bombsheller reserves the right to revoke this agreement if You advertise products below MAP.

Shipment and Delivery
Shipment. Unless expressly agreed to by both parties in writing, Bombsheller shall select the method of shipment of and the carrier for the products. Bombsheller may, in its sole discretion, without liability or penalty, make partial shipments of Products to you. Each shipment constitutes a separate sale, and you shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order.

Shipping Charges, Insurance and Taxes. You shall pay for any and all costs involved with shipping and handling.
Delivery. Unless expressly agreed to by the Parties, Bombsheller shall deliver the Products to the specified delivery point. Bombsheller does not offer retail packaging and is not responsible for such packaging of the products.

Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that Bombsheller shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Bombsheller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of any Product relieves you of your obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Products.

Inspection. You shall inspect Products received under this Agreement within 7 business days of receipt (the "Inspection Period") of the Products and either accept or, if any Products are nonconforming goods or excess products, you must provide written notice to Bombsheller within 5 business days following receipt of the Products, furnished with a written description and evidence of such nonconforming goods or excess products. If you do not provide such notice of nonconforming goods or excess products, or if the goods are nonconforming due to Your own acts or omissions, You will be deemed to have accepted the Products, and Bombsheller shall have no obligation to replace the Products, and You shall pay for the Products. If you provide timely notification to Bombsheller of any Nonconforming Goods or Excess Products, Bombsheller shall determine, in its sole discretion, whether the Products are Nonconforming Goods or Excess Products. If Bombsheller determines that the Products are Nonconforming Goods or Excess Products, it shall either, in its sole discretion:

    if the Products are Nonconforming Goods, (i) replace the Nonconforming Goods with conforming Products, or (ii) refund the Price for the Nonconforming Goods (excluding Shipping Costs) or

    if the Products are Excess Products, refund the Price for the Excess Products excluding shipping costs incurred by you in connection therewith.

Representations and Warranties
Your Representations and Warranties. You represent and warrant to Bombsheller that:

    You are duly qualified to do business and are in good standing in every jurisdiction in which such qualification is required;

    You or your company have the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform your obligations under this Agreement; and

    this Agreement will constitute the legal, valid and binding obligation of you, enforceable against you in accordance with its terms.

The individual executing this Agreement on its behalf has been duly authorized and empowered to execute this Agreement for the purpose of binding it to this Agreement. The execution, delivery and performance of this Agreement and the grant of the rights granted hereunder to Bombsheller with respect to the Private Label Attributes do not require any third party consents or governmental approvals, filings, registrations or permits that have not already been obtained and will be maintained during the Term. The execution, delivery and performance of this Agreement by it does not and will not violate any contract or other arrangement between it and any third party, or any applicable law or regulation

You are the sole and exclusive owner of all intellectual property rights and other rights with respect to the Private Label Attributes and have all necessary power and authority to grant the license granted with respect to the Private Label Attributes to Bombsheller hereunder. You further represent and warrant that none of the Private Label Attributes infringe or otherwise violate any intellectual property or other right of any third party.

Warranties Disclaimer; Non-reliance. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES EXPRESSLY PROVIDED HEREIN, (A) NEITHER BOMBSHELLER NOR ANY PERSON ON BOMBSHELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; (iv)] NON-INFRINGEMENT; (v) PERFORMANCE OF PRODUCTS TO STANDARDS, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY BOMBSHELLER, OR ANY OTHER PERSON ON BOMBSHELLER’S BEHALF.

Limitation of Liability
No Liability for Consequential or Indirect Damages. IN NO EVENT IS BOMBSHELLER OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BOMBSHELLER’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE PRODUCTS SOLD TO YOU HEREUNDER OR OTHERWISE INVOLVING BOMBSHELLER’S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE PURCHASE PRICE PAID OR PAYABLE BY YOU TO BOMBSHELLER FOR THE PRODUCTS, IF ANY, GIVING RISE TO SUCH CLAIM(S).
Indemnification
Indemnification. You shall indemnify, hold harmless, and defend Bombsheller and its officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns 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 to indemnification under this Agreement and the cost of pursuing any insurance providers, arising out of or relating to any claim of a third party:

    Relating to actual or alleged infringement or misappropriation of the intellectual property rights of any third party;

relating to a breach or non-fulfillment of any material representation, warranty or covenant of this Agreement;

alleging or relating to any negligent act or omission by You or your employees (including any recklessness or willful misconduct) in connection with the performance of your obligations under this Agreement;

    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 you or your employees;

    relating to a purchase of a Product by any person or entity purchasing directly or indirectly through you; or

    relating to any failure by you or your employees to comply with any applicable Laws

Miscellaneous
No Franchise or Business Opportunity Agreement. The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise or business opportunity between you and Bombsheller. 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. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then the Parties shall negotiate in good faith to modify this Agreement so as to effect the Parties' original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a product reseller agreement and not a franchise agreement.

Further Assurances. On Bombsheller’s request, You shall, at your sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, reasonably necessary to give full effect to this Agreement.

Entire Agreement. This Agreement, including and together with related exhibits, schedules, attachments and appendices, together with the Purchase Order Transaction Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement, is invalid, illegal or unenforceable, the remainder of this Agreement is unenforceable.

Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement] and signed by an authorized Representative of each Party.

Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by [an authorized representative of] the Party waiving its right.

    Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.

    None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:

        any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or

        any act, omission or course of dealing between the Parties.

Assignment. You may not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of Bombsheller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Bombsheller may assign any of its rights or delegate any of its obligations without your consent.

Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

Governing Law and Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Washington, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Washington. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, in any forum other than the courts of the State of Washington.

Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Force Majeure. Bombsheller shall not be liable for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent the failure or delay is caused by or results from acts beyond the party’s control, including, but not limited to, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; or (h) labor disputes.

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