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Last Updated: 30 March 2022
These Setex reseller program terms and conditions (“Reseller Program Terms”, “Program Terms” or “Program Agreement”) govern your participation in the Setex Reseller Program. Before joining or applying to our Setex Reseller Program, please carefully read these Program Terms. As a participant (or prospective participant) in the Setex Reseller Program, you are required to follow these Program Terms and to keep your own employees, agents and contractors in compliance with these Program Terms.
By joining or participating in the Setex Reseller Program, or clicking that you agree or accept the Program Terms when prompted, you agree to be bound by these Program Terms and all other Setex guidelines, documents and materials that we make available to you in connection with your participation in the Setex Reseller Program. If you do not consent to these Program Terms, you are not permitted to participate in the Setex Reseller Program. If you are signing up to the Setex Reseller Program on behalf of a company or other entity, you represent and warrant that you are an authorized representative of such company or entity with the right to bind such company or entity to these Program Terms. You further represent and warrant that you are at least 18 years of age or older.
1. Definitions
As used in these Program Terms:
(a) “Advertising” means any communication in any medium (including without limitation, print, electronic and computer-based systems) promoting the Products or using the Setex Trademarks that is directed to the trade or the public, including trade and public directory listings, brochures, graphic images, logos, videos, point-of-sale displays, exhibition displays, posters, and billboards;
(b) “Advertising Standards” means any applicable advertising laws, regulations or standards, data laws relating to advertising (including the Children's Online Privacy Protection Act), including without limitation any FTC Guidance, any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice;
(c) “Amazon” means that website, the primary home page of which is identified by the URL www.amazon.com, and any successor or replacement of such website;
(d) “Data Regulation" means any applicable data protection, privacy or similar laws that apply to data processed in connection with this Program Agreement, including FTC Guidance, self-regulatory principles set forth by the Digital Advertising Alliance, the California Consumer Privacy Act of 2018 Cal. Civil Code § 1798.100 et seq. (“CCPA”) and other U.S. state and federal legislation relating to data privacy and security;
(e) “FTC Guidance” means the published cases and guidelines from the United States Federal Trade Commission, including without limitation the guidance on substantiation of claims, privacy, data security, and advertising;
(f) “Online Interface” means the part of our website that is accessible only to participants in the Setex Reseller Program and which contains pricing information and/or other Setex Reseller Program materials;
(g) “Online Platform” means Amazon, Walmart, or any other ecommerce platform notified by Setex to Reseller in writing from time to time;
(h) “our website” means the Setex website located at setexwholesale.com;
(i) “Person” means any person, individual, firm, association, syndicate, partnership, joint venture, trustee, trust, corporation, division of a corporation, unincorporated organization or other entity or a government agency or political subdivision thereof;
(j) “Point-of-Sale Displays” means in-store retail merchandising displays and literature applicable to the Product and designed to educate and assist in the purchase decision of the consumer at the point of purchase so that the consumer understands the benefits of and ultimately selects the Products;
(k) “Products” means Setex’s products offered for sale on the Online Interface;
(l) “Reseller”, ”you” or “your” means the Setex Reseller Program participant who has agreed to be bound by these Program Terms;
(m) “Reseller Terms of Sale” means reseller terms of sale set out in Exhibit A;
(n) “Retail Point of Sale” means a retail point of sale in the Territory that is owned and controlled by Reseller;
(o) “Setex”, “we”, “us”, or “our” refers to Setex Technologies, Inc.;
(p) “Setex Brand Guidelines” means the Setex brand guidelines that are communicated to you by us from time to time;
(q) “Setex Reseller Program” means the Setex reseller program;
(r) “Setex Trademarks” means all the trademarks and trade names, whether or not registered, which are owned by Setex and which appear on Setex Products including without limitation, the trademarks “SETEX”, “SETEXGRIP”, “STAY IN CONTROL”, and “SETEX GECKOGRIP”;
(s) “Territory” means the United States of America;
(t) "Walmart" means that website, the primary home page of which is identified by the URL www.walmart.com, and any successor or replacement of such website;
(u) “your website” means the website (i) that you own or operate, (ii) that you use to promote the Setex Products as permitted by these Program Terms, and (iii) for which you have submitted the URL to us through the Online Interface.
2. Enrollment in the Setex Reseller Program
2.1 Our selective distribution system. In order to achieve a consistent standard and quality of service, we operate a selective distribution system, meaning that we work with screened and approved resellers who have agreed to our specific standards designed to protect our strong reputation and following among consumers.
2.2 The purpose of the Setex Reseller Program is to permit you to: (a) sell our Products to consumers at your Retail Point(s) of Sale and on your website; and (b) promote the Setex Products to consumers at your Retail Point(s) of Sale and on your website. In order to participate in the Setex Reseller Program, you must first submit an application to us via our website. Your application must include all information requested by us, including information about your business, your retail point(s) of sale, links to any website that you intend to use in connection with the Setex Reseller Program, and your contact information. After receiving your application, we will review your application materials (usually within three business days) and notify you by email of your acceptance or rejection into our Setex Reseller Program. We reserve the right to reject your application for any reason, and encourage you to contact us with any questions regarding your application.
2.3 It is your responsibility to ensure that the information in your application and otherwise associated with your Setex Reseller Program account, including your email address and other contact information and identification of your website and Retail Point(s) of Sale, is at all times complete, accurate and up-to-date. We will send notifications, approvals and other communications relating to the Setex Reseller Program and these Program Terms to the email address then-currently associated with your Setex Reseller Program account. You will be deemed to have received all notifications, approvals and other communications sent to the email address associated with your account, even if that email address is no longer current.
3. Non-exclusive right to resell Products to consumers at your Retail Point(s) of Sale and on your website
3.1 Right to resell Products to consumers at your Retail Point(s) of Sale. We grant you the personal, non-assignable, non-transferable, non-exclusive right, subject to all terms and conditions set forth in this Program Agreement, to sell the Products to consumers in your Retail Point of Sale during the term of his Program Agreement.
3.2 Permitted sales on your website. You may, subject to the terms and conditions herein, sell and offer to sell Products to consumers on your website during the term of his Program Agreement.
3.3 Resale price. You are free to determine your own resale prices for the Products.
3.4 Prohibited internet sales. Except as permitted in Section 3.2, you shall not sell or offer to sell Products using the internet, any internet site, or any other electronic medium or device, without our prior written approval in each case. For purposes of this Program Agreement, the term “internet site” shall include, but is not limited to, any World Wide Web site, USENET, newsgroup, bulletin board, server, or other online service at any electronic domain name, address, or location, or any other form of online service, electronic domain name, or other form of electronic commerce whatsoever. For the sake of clarity, you shall not sell or offer to sell Products on the Online Platforms.
3.5 No direct export sales. You acknowledge and agree that the rights granted pursuant to this Program Agreement are limited to the Territory and confer no rights upon you with respect to the sale or distribution of any Products outside the Territory. Without limiting the generality of the foregoing, you shall not knowingly, directly or indirectly, including through any agents, distribute or sell any Products outside the Territory and shall not solicit orders for Products, Advertise the Products, or keep any stock of the Products outside the Territory, except with our prior written permission.
3.6 No sales to other resellers. You shall not distribute, market or sell Products to any Person within the Territory if you know or has any reason to believe that such Products will be resold by such Person. If you become aware that any Person to whom you supply any Products is marketing or selling, or is planning to market or sell, the Products, you shall immediately notify us and shall cease forthwith to supply such Person with Products.
3.7 Packaging. You will resell Products only in the packaging supplied by Setex.
3.8 No exclusivity. The relationship between the Parties is non-exclusive and nothing in this Program Agreement shall preclude Setex from entering into relationships with any other parties that are similar to the relationship between Setex and Reseller.
3.9 This Program Agreement does not guarantee that you will make any sales of Products.
4. Product purchases; Orders; Reseller Terms of Sale
4.1 Orders for Products must be submitted by you through the Online Interface. During the term of this Program Agreement, all orders for Products must be submitted by you to us through the Online Interface (each an “Order”). We have no obligation to accept orders submitted outside the Online Interface.
4.2 Reseller Terms of Sale. During the term of this Program Agreement, all purchases of Products by you from us are governed by the Reseller Terms of Sale.
4.3 Orders are not intended to be separate or distinct contracts; Orders are intended to form part of this Program Agreement and to be subject to and governed by the terms and conditions of this Program Agreement.
5. Your website requirements
5.1 You are solely responsible for your website, including the development, maintenance and technical operation of your website and all materials and content that appear on your website. At all times during your participation in the Setex Reseller Program, your website must not:
(a) infringe on our or any third party’s intellectual property, publicity, privacy or other proprietary rights;
(b) violate any applicable law, rule, or regulation;
(c) contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contain nudity, pornography or sexually explicit materials;
(d) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information; or
(e) be directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder.
5.2 Your website must accurately and adequately disclose, either through a privacy policy or otherwise, how you collect, use, store and disclose data collected from consumers.
6. Linking to our website
After you have been accepted into the Setex Reseller Program, we may make certain links or banner ads to our website available to you in connection with the Setex Reseller Program (“Links”). By participating in the Setex Reseller Program, you consent to us monitoring, using and disclosing information about your website and customers in connection with your display of Links on your website. Further, you must:
(a) only use Links in exactly the form provided to you by us;
(b) not manipulate or change the Links in any manner;
(c) notify us of all domains of your websites that contain Links;
(d) not copy, resemble, or mirror the look and feel of our website on your website;
(e) not, in any way, create the impression that your website is our website;
(f) not frame our website on your website in any manner;
(g) not engage in cookie stuffing and or include pop-ups, false, or misleading links on your website;
(h) not attempt to mask the referring URL information for a Link (i.e. the page from where the Link click is originating);
(i) display Links in their entirety as provided to you by us;
(j) not advertise using links to our website other than the Links sent to you by us in connection with the Setex Reseller Program;
(k) not advertise using links copied from our internet advertising, from our customer e-mails, or from any other campaign.
7. Use of Setex Materials and Setex Trademarks.
7.1 Subject to the terms and conditions herein, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, right to use, during the term of this Program Agreement, (i) any marketing or advertising materials provided to you by us in connection with the Setex Reseller Program, including Links and (ii) only those Setex Trademarks or logos provided to you by us in connection with the Setex Reseller Program (collectively the “Setex Materials”), in each case solely for the limited purpose of promoting Setex Products to consumers at your Retail Point(s) Sale or on your website in connection with your participation in the Setex Reseller Program.
7.2 You may use Setex Materials only as directed by us and in exactly the form provided to you by us. Except as expressly permitted herein, You shall not modify Setex Trademarks in any manner.
7.3 All your uses of Setex Materials shall be in compliance with this Program Agreement. You shall cease display and use of any Setex Materials as requested by us from time to time.
7.4 You shall only use each of the Setex Trademarks in its entirety and shall not separately use any element or elements of Setex Trademarks.
7.5 Except as expressly permitted herein, you shall not, without our prior written consent, (i) combine Setex Trademarks with any other designs, marks, names, prefixes, suffixes, symbols, or other modifying words or (ii) make any change in the presentation of Setex Trademarks.
7.6 You shall not use Setex Trademarks to disparage Setex or Setex Products in a manner that, in our reasonable judgment, may diminish or otherwise damage our good will in Setex Trademarks.
7.7 No use of Setex Materials in connection with other products or services. You shall not use Setex Materials, Setex Trademarks, or the Setex trade name in connection with any goods or services other than as expressly permitted hereunder. You shall not use Setex Trademarks in connection with or for the benefit of your own products or services of any third party’s products or services. You shall not use the Setex Trademarks in a way that suggests your own products or services come from or are endorsed by Setex.
7.8 You shall not place our trade name or logo adjacent to the trade name or logo of any competing brand.
7.9 You must not take any action inconsistent with our ownership of the Setex Materials and any benefits accruing from use of Setex Materials will automatically vest in Setex. All right, title and interest in and to the Setex Materials and all goodwill associated therewith will remain and vest with Setex.
7.10 No use of Setex Trademarks in your business or domain name. You shall not use any of the Setex Materials as part of your business name or the domain or sub-domain for your website.
7.11 No adoption of confusingly similar marks. You shall not adopt, use, or seek to register any trademark, service mark, trade name, domain name or other communicative device which is the same or confusingly similar to or incorporates any of the Setex Trademarks or the Setex trade name without the express written permission of Setex.
7.12 No use of Setex Trademarks for donations or contributions. You shall not, except with our prior written consent in each instance, make political or charitable donations or contributions or subscriptions of any variety utilizing our name or any Setex Trademarks, and shall not, except with our prior written consent in each instance, use the Setex Trademarks in connection with any political party, charitable organization, or other third-party or for any political, charitable, or other non-commercial purpose that may be endorsed or promoted by you.
8. Advertising and promotion of Setex Products
8.1 Our quality standards. You agree that the nature and quality of all Advertising, promotional and other related uses of Setex Trademarks by you, shall conform to and be consistent with our quality standards, including but not limited to the Setex Brand Guidelines. Those standards of quality shall, under all circumstances, be set by and be under the control of Setex. We may from time to time provide information or guidance on such standards to you in writing. You will not create, publish, distribute, or print any written material, including postings on your website, that reference the Setex Reseller Program or contain the Setex Materials that are inconsistent with our written guidance. Upon written notification by us, you shall immediately remove or modify, as requested by us, any Product Advertising that we determine, in our sole discretion, is inconsistent with our quality standards.
8.2 Prior approval of all Advertising. You shall not use or publish any Advertising or other promotional materials bearing or utilizing the Setex Trademarks that has not been previously approved in writing by Setex. You agree that, prior to the use or publication of any Advertising or other promotional materials that bear or utilize the Setex Trademarks, including all Advertising on your website and Point-of-Sale Displays, you shall submit the same to Setex for approval to the following email address: retail@setextechnologies.com.
8.3 Prior approval of Advertising on your website. Subject to the terms and conditions herein, you may, with our prior written approval in each case, advertise Products on your website.
8.4 No other internet Advertising. Except for Advertising on your website as permitted in Section 8.3, you shall not publicly advertise the Products using the internet (i.e., banner or other advertisements), any other electronic medium, or any print medium, without our prior written consent in each case. For the sake of clarity, you shall not advertise the Products on the Online Platforms.
8.5 Compliance with Advertising Standards. Your Advertising will comply with all Advertising Standards and Data Regulation. We, however, are not obliged to check the legality or accuracy of your Advertising. For the sake of clarity, any review or approval by Setex of your Advertising is to confirm consistency with our branding and marketing policies and not to assess or confirm compliance with any applicable laws or regulations in the Territory.
8.6 No promotion via email or SMS message. You shall not promote Setex Products via email or SMS messages. We have a strict no tolerance policy on email and SMS marketing. If we determine that you have used Setex Materials in email or SMS marketing, we may immediately terminate your participation in the Setex Reseller Program.
8.7 Pay-Per-Click Advertising. If you engage in pay-per-click (“PPC”) advertising for your website, you shall not bid on any Setex Trademarks (including, but not limited to Setex, Setex.com, Setex Geckogrip), or any variations or misspellings thereof, for search or content-based campaigns on Google, MSN, Yahoo!, Facebook or any other search or advertising network.
8.8 We have a strict no tolerance policy on PPC trademark bidding. If you automate your PPC campaigns, it is your responsibility to exclude Setex Trademarks from your program. We strongly suggest that you add Setex Trademarks as negative keywords. If we determine that you have engaged in PPC trademark bidding with any Setex Trademarks, we may immediately terminate your participation in the Setex Reseller Program.
9. Third-party websites and social media
You are permitted to promote the Setex Products (including posting Links) on third party social media websites (e.g., Facebook, Instagram, Twitter) and other blogs, forums and similar websites in accordance with these Program Terms. If you use such third party websites to promote the Setex Products, you must comply with such website’s own terms and conditions regarding the posting of promotional content. Further, you must comply with the following social media guidelines:
(a) You shall not post your Links on any public forum found on Setex’s own social media accounts. For example, you may not post Links as comments to posts or news feed stories found on Setex’s Facebook page, Setex’s Instagram page, or Setex’s Twitter account.
(b) You shall not purchase or run ads on any social media website using the Links or any other Setex Materials.
10. Our Online Interface
10.1 Setex provides the Online Interface subject to these terms and conditions, and by using our Online Interface, you agree to these terms and conditions.
10.2 License and Permitted Use. Subject to your compliance with the terms and conditions of this Program Agreement, Setex or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make use of our Online Interface solely for purposes of the Setex Reseller Program. All rights not expressly granted to you in these terms and conditions are reserved. You may not misuse the Online Interface. You may use our Online Interface only as permitted by law. The licenses granted by us automatically terminate if you do not comply with these terms and conditions. We reserve the right to refuse service, terminate your rights to use our Online Interface, or cancel orders at our sole discretion.
10.3 Use of third-party Services. Our Online Interface may include third-party technology, software, applications and links to other websites and resources provided by third parties. Any such links are provided for your convenience only. We do not have any control over the content of those third-party websites or resources. You therefore acknowledge and agree as follows: (i) we are not responsible for the practices or policies of third parties or for any loss or damage that may arise from your use of any third-party technology, services, software or applications or any linked third-party website or resource; and (ii) if you use any third-party technology, services or software or access any website or resource linked to our Online Interface, you do so at your own risk and subject to the terms and conditions of use of any such third-party technologies, websites or resources.
11. Communication policy
11.1 If we ask you for clarification or more information regarding your business, your website, any Advertising, or any resale of Products by you that we suspect may be in violation of these Program Terms, we expect you to respond to any such inquiry in a timely and honest manner.
11.2 We may immediately terminate your participation in the Setex Reseller Program with written notice if:
(a) you violate these Program Terms;
(b) we suspect your participation in the Setex Reseller Program, or any action taken by you in connection with the Setex Reseller Program, is fraudulent, deceptive or violates any applicable law;
(c) your communications to us are not forthcoming, are intentionally vague or if we have reason to believe you are lying or being dishonest; or
(d) we attempt to contact you and you are unresponsive within a reasonable period of time or our emails to you are undeliverable.
12. Effective Date; Termination
12.1 These Program Terms will be effective upon our acceptance of your Setex Reseller Program application and will end when terminated by either you or us as described in these Program Terms. Either you or we may terminate these Program Terms for any reason, with or without cause, by giving the other party written notice. Upon termination, (i) you must immediately discontinue the use of all Setex Materials, including removing all Setex Materials from your websites and (ii) you must immediately cease using the Links. The provisions of these Program Terms which are intended to survive by their nature will survive termination or expiration, including Section 14 (Confidentiality), Section 15 (Intellectual property ownership), Section 16 (Indemnification), Section 17 (Warranty Disclaimer), Section 18 (Limitations of Liability), Section 20 (Governing Law; Arbitration), and Section 21 (Miscellaneous).
12.2 Upon the termination of your participation in the Setex Reseller Program you will no longer be permitted order Products through the Online Interface. No termination of these Program Terms will relieve either party from any liability for any breach of, or liability accruing under, these Program Terms prior to termination.
13. Independent contractor; your responsibilities and obligations
13.1 You have no authority to assume or create any obligation or warranty, express or implied, on behalf of Setex or to represent Setex in any capacity. The relationship between you and Setex is that independent contractor, and nothing in these Program Terms will create or imply any partnership, joint venture, commercial agency, franchise, sales representative, or employment relationship.
13.2 You determine your own hours and days of operation, your own management practices, operational practices, marketing practices, accounting practices, and personnel practices without any guidance or assistance from Setex.
13.3 You represent that you have extensive knowledge of and experience within your field and within the Territory and have not relied upon and do not intend to rely upon Setex’s knowledge of the market.
13.4 You understand that Setex will not provide any marketing plan, program or system to you and that you are responsible for your own marketing.
13.5 You is solely responsible for generating your own sales.
13.6 You will not:
(a) make any false, misleading, or disparaging representations or statements with regard to Setex or the Setex Products;
(b) engage in any unfair or deceptive trade practice in connection with your promotion of the Setex Products or participation in the Setex Reseller Program; or
(c) sell Links to third parties in exchange for a fee or other compensation.
13.7 You will comply with all laws, rules and regulations applicable to your participation in the Setex Reseller Program and any guidelines and procedures of Setex made available to you (including any usage guidance pertaining to the Setex Materials).
13.8 High Risk Applications. Unless specifically agreed to in writing by us, Setex Products have not been tested or otherwise certified by us as fit for use, and are not meant to be foolproof or fault-tolerant, in applications (e.g., nuclear, aerospace, mobile vehicles, medical devices or equipment, or weapons systems) in which the failure of the Setex Products could lead directly or indirectly to death, bodily injury, or severe property or environmental damages. Accordingly, you must not promote or advertise Setex Products as being suitable for High Risk Applications.
14. Confidentiality
14.1 Confidential Information. You acknowledge that you may receive certain information of Setex which is reasonably or customarily considered to be confidential, proprietary, or otherwise sensitive, in whatever form (e.g., without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerized, electronic or otherwise) and whether or not it is specifically marked confidential, including without limitation, this Program Agreement, any information concerning or relating to our wholesale pricing, reseller discounts, business plans, customers, suppliers, profit margins, costs, future products or designs, our past, present or projected financial condition, the contents of any economic, market or other studies, reports or forecast concerning Setex or the conduct of our business (hereinafter “Confidential Information”). The Confidential Information shall remain the sole and exclusive property of Setex, and Setex has all right, title and interest therein. You will keep secret, hold in strict confidence and not use or disclose to any third party, without the prior written approval of Setex any Confidential Information, except as contemplated by this Program Agreement.
14.2 Exceptions. Confidential Information does not include information that: (a) becomes a matter of public knowledge through no fault of yours; (b) is rightfully received by you from a third party without restriction on disclosure; (c) is independently developed by you without the use of Setex's Confidential Information; or (d) is rightfully in your possession (without restriction on disclosure) prior to its disclosure by Setex. Notwithstanding the foregoing, information disclosed by Setex to you pursuant to a prior (or contemporaneous) confidentiality agreement between the parties shall be treated as Setex’s Confidential Information under this Program Agreement.
14.3 Care and Treatment of Confidential Information. You agree (a) to disclose Confidential Information only to those of your employees, contractors and consultants ("Related Persons") who have a need to know such information, are informed of its confidential nature and who are subject to an agreement or other binding obligation to treat Setex Confidential Information in a manner consistent with the terms of this Program Agreement, (b) not to disclose Setex Confidential Information to any third party except pursuant to a lawful judicial, administrative or governmental order after providing us an opportunity to avoid or limit such disclosure, (c) to protect Setex Confidential Information with at least the degree of care with which you protects your own confidential information, but in no case with less than a reasonable degree of care, (d) to ensure that the your Related Persons abide by the provisions of this Section 14, (e) to be liable for breaches of this Section 14 by your Related Persons, and (f) to notify us promptly of any breach of this Section 14 by you or any of your Related Persons.
14.4 Within thirty (30) days of a written request by Setex, you will destroy or return to Setex (a) all materials and communications received from Setex that constitute or contain Setex Confidential Information, (b) all materials you may have created that reveal any Setex Confidential Information, and (c) all copies of the foregoing; provided, however, that any back-up or archival files not readily accessible to your general employees that may contain any of the foregoing may be destroyed in the ordinary course of your business, and you shall not thereafter retrieve or restore such files.
14.5 Irreparable Injury. You acknowledge that our Confidential Information has great value and, if disclosed or used in violation of this Program Agreement, would cause Setex immediate and irreparable injury.
14.6 Notwithstanding anything to the contrary, the obligations set forth in Section 14.3 and Section 14.4 will survive the termination or expiration of this Program Agreement and terminate five (5) years from the date of the initial disclosure of the particular item of Confidential Information; provided, however, that for our Confidential Information that qualifies as trade secrets under applicable law, the obligations set forth in Section 14.3 and Section 14.4 shall continue for so long as said Confidential Information qualifies as trade secrets under applicable law.
15. Intellectual property ownership
15.1 Patents. One or more patents owned by Setex apply to our Products.
15.2 All right, title and interest in the intellectual property rights in Products, including Technology and trade secrets embodied therein and any developments created or provided in connection with or related to this Program Agreement, and any derivative works thereof, shall belong solely and exclusively to Setex or its licensors, and You shall have no rights whatsoever in any of the foregoing other than the rights set forth in this Program Agreement. Nothing in this Program Agreement or otherwise will be deemed to grant to you an ownership interest in the intellectual property rights in Products in whole or in part.
16. Indemnification. You will indemnify and hold Setex harmless from and against any liabilities, damages, costs and expenses, including without limitation attorneys’ fees and costs, incurred by Setex resulting from any and all third party claims, actions or proceedings arising out of, based on or related to (i) any statements, claims, representations or warranties made by you regarding the Setex Products that were in violation of our written guidance; (ii) any illegal, unfair, deceptive, misleading or unethical business practices whatsoever by you, whether with respect to your participation in the Setex Reseller Program, use of Links or otherwise; (iii) your website and any materials, content, products or services that appear on your website; (iv) your violation of any term or condition of these Program Terms; or (v) your or your employees’ willful misconduct.
17. WARRANTY DISCLAIMER. SETEX DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, UNDER THIS PROGRAM AGREEMENT OR OTHERWISE WITH RESPECT TO YOUR PARTICIPATION IN THE SETEX RESELLER PROGRAM, OUR WEBSITE, SETEX MATERIALS, AND SETEX PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, DESIGN, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SETEX MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE ONLINE INTERFACE AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE ONLINE INTERFACE. SETEX IS NOT RESPONSIBLE TO YOU FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS RESULTING FROM YOUR PARTICIPATION IN THE SETEX RESELLER PROGRAM, OR ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE PROGRAM TERMS OR YOUR PARTICIPATION IN THE SETEX RESELLER PROGRAM.
18. LIMITATIONS OF LIABILITY
18.1 AGGREGATE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF SETEX'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF SETEX ARISING OUT OF OR IN CONNECTION WITH THIS PROGRAM AGREEMENT AND SETEX’S PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED THE ACTUAL AMOUNT PAID TO SETEX BY RESELLER FOR PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE DAMAGES OR LOSSES OCCURRED OR THE CAUSE OF ACTION AROSE.
18.2 LIMITATION OF LIABILITY PER OCCURRENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF SETEX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF SETEX ARISING OUT OF OR IN CONNECTION WITH THIS PROGRAM AGREEMENT OR THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED PER OCCURRENCE THE ACTUAL AMOUNT PAID TO SETEX BY RESELLER FOR THE PRODUCT GIVING RISE TO THE LIABILITY. FOR THE PURPOSES OF THIS SECTION 18.2, “OCCURRENCE” INCLUDES WITHOUT LIMITATION, CONTINUOUS OR REPEATED EXPOSURE TO SUBSTANTIALLY THE SAME GENERAL HARMFUL CONDITIONS.
18.3 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL SETEX BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT ARISING UNDER OR IN CONNECTION WITH THIS PROGRAM AGREEMENT OR THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.
18.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, RESELLER’S REMEDIES FOR NON-CONFORMING PRODUCTS ARE LIMITED TO THE RETURN OF THE NON-CONFORMING PRODUCTS AND THE REPAYMENT OF THE PURCHASE PRICE OR TO THE REPAIR OR THE REPLACEMENT OF THE NON-CONFORMING PRODUCTS.
18.5 NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SETEX MORE THAN ONE (1) YEAR AFTER THE DATE OF THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF GREATER THAN ONE (1) YEAR.
19. Changes to Program Terms. Setex reserves the right to change, modify, revise or otherwise amend any provision of these Program Terms, and any other terms or guidelines governing your participation in the Setex Reseller Program, at any time at its sole discretion by providing notice to you that the Program Terms have been modified. Such notice may be provided by sending an email, or by posting a notice on the Online Interface, or by posting the revised Program Terms on the Online Interface and revising the date at the top or by such other form of notice as determined by Setex. Your continued participation on the Setex Reseller Program following the posting of the revised Program Terms or other notice will constitute your acceptance of such changes or modifications. If you do not agree with any changes or modifications, you must promptly notify us in writing and stop participating in the Setex Reseller Program. You should review these Program Terms often and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your participation in the Setex Reseller Program.
20. Governing Law; Arbitration
20.1 This Program Agreement and, to the fullest extent permitted by applicable law, all matters arising out of or relating in any way to this Program Agreement (whether arising in contract or tort), shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Commonwealth of Pennsylvania; provided, however, that the United States Arbitration Act (Title 9 US Code) shall govern the interpretation and enforcement of the arbitration clauses in this Program Agreement.
20.2 Arbitration. Any controversy or claim arising out of or relating to this Program Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. The place of arbitration shall be Pittsburgh, Pennsylvania. The language of arbitration shall be English. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Setex retains the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed a waiver of the right to arbitrate.
21. Miscellaneous
21.1 You may not assign or transfer these Program Terms to another person or entity without prior written consent of Setex. Any assignment in violation of the foregoing will be null and void. Setex may assign these Program Terms in its discretion.
21.2 These Program Terms will be binding on any permitted successors or assignees.
21.3 The remedies provided in these Program Terms will be cumulative, and the assertion by either party of any right or remedy will not preclude the assertion by such party of any other rights or the seeking of any other remedies.
21.4 The invalidity or unenforceability of any provision of these Program Terms will in no manner affect the validity or enforceability of any other provision hereof.
21.5 These Program Terms represent the entire agreement between you and Setex and supersedes any prior or contemporaneous understandings or agreements with respect to the subject matter hereof. Notwithstanding anything to the contrary, Setex’s Minimum Advertised Price Policy is a unilateral policy implemented by Setex and it does not form part of these Program Terms or of any other agreement between the parties.
21.6 The failure of either party to enforce any of the provisions of these Program Terms or the waiver thereof in any instance will not be construed as a general waiver or relinquishment on its part of any other provision, but the same will nevertheless be and remain in full force and effect.
21.7 In entering this Program Agreement, you have made an independent investigation of all relevant facts and has not relied upon any statement, representation, warranty, or agreement of Setex except for those expressly contained in this Program Agreement.
21.8 You represent that the term, termination, notice-of-termination, choice of law, and arbitration provisions of this Program Agreement are both reasonable and fair.
EXHIBIT A
RESELLER TERMS OF SALE
1. APPLICABILITY
1.1 These general terms and conditions are applicable to all sales of Products from Setex to Reseller during the term of the Program Agreement and supersede any and all conditions stipulated by Reseller (even if submitted in a later document).
1.2 Except for this Program Agreement, no other terms or conditions shall be of any effect unless otherwise specifically agreed to by Setex in a separate written agreement duly signed by Setex. No general terms and conditions of Reseller shall at any time form a part of the content of any contract or agreement between Reseller and Setex, even if they are not further expressly rejected by Setex.
2. TERMS OF SALE
2.1 No oral communications concerning the terms of any Order, including telephone communication, shall have any force and effect unless and until acknowledged by Setex in writing. For purposes of this section, the term “writing” shall also include email communication between Reseller and Setex.
2.2 Cancellation. No cancellation of an Order by Reseller is effective unless it is accepted by Setex in writing. All Order cancellations accepted by Setex are subject to a twenty-five percent (25%) cancellation fee calculated on the total Order value, unless otherwise agreed in writing by Setex. No cancellation will be accepted by Setex following delivery of the Products by Setex. No cancellation of any Order for Products manufactured to Reseller’s specification (“Special Orders”) will be accepted by Setex.
2.3 Returns. All sales of Products are final. Reseller has no right to return any Products to Setex without Setex’s prior written consent in each case. All returns authorized by Setex are subject to a twenty-five percent (25%) restocking service and handling fee, calculated on the total Order value, as well as an additional deduction for any damage to the Product that has occurred at any time following delivery of the Product to Reseller and prior to the return of the Product to Setex’s warehouse. Reseller shall pay all freight and insurance charges connected with shipping any returned Products to Setex and shall bear the risk of loss or damage to the Products until the Products are delivered to Setex’s warehouse. Setex may reject any unauthorized return of Products by Reseller and may reship any such Products to Reseller “freight collect,” in which case Reseller shall be responsible for all freight charges. No return of Special Order Products will be accepted by Setex.
3. PRICES
3.1 The price of the Products is Setex's current price in effect at the time of the Order.
3.2 Unless otherwise specified, all prices are EX WORKS Setex’s warehouse, the term EX WORKS being defined pursuant to the Incoterms 2020, and only include standard packaging, but not postage or other freight charges, duties, insurance or taxes, if any.
3.3 In addition to the published price, we may charge you for shipping, freight, taxes and other expenses that we incur in connection with the shipping of your order. When we collect taxes and other governmental fees from you, the amount collected will be stated separately on the invoice.
3.4 Customer assumes all liabilities for taxes, including any applicable VAT, sales, use, personal property, ad valorem, excise, and other taxes, duties, levies or charges imposed by any governmental authority (but excluding any taxes payable by Setex with respect to Setex’s net income) arising out of or connected with the sale of the products.
4. TERMS OF PAYMENT
4.1 Unless otherwise specified in the applicable Order, payment for Products (and for all services incidental thereto) is required in advance, prior to Product shipment.
4.2 Each payment by Reseller under this Program Agreement shall, except as required by law, be made without withholding or deduction for or on account of any taxes.
4.3 Setex may, with written notice to Reseller, change or withdraw extensions of credit at any time. If Setex ceases to extend credit terms before shipment, Reseller's sole remedy shall be cancellation of its Order.
4.4 If Reseller fails to make payment on or before the date required, Reseller shall pay service charges to Setex at the rate of one and one half percent (1.5%) per month or the maximum rate allowed by law. The specification of service charges on past-due balances shall not be deemed an agreement to extend credit.
4.5 If Reseller fails to observe the payment terms or is in breach of Reseller’s payment obligations under any other agreement between Setex and Reseller, or if Reseller becomes insolvent, then Setex may, without limiting Setex’s other rights and remedies hereunder: (i) accelerate Reseller’s unpaid obligations such that they become immediately due and payable; (ii) suspend Setex’s performance of any Order until Reseller’s account is current; and/or (iii) withhold further deliveries of Products to Reseller until Reseller’s account is current.
4.6 Except for claims founded in Reseller’s own right which are in the same currency and have been finally adjudicated or are due and undisputed, Reseller does not enjoy a right of set-off under any circumstances.
4.7 Reseller shall reimburse Setex for reasonable attorneys’ fees and any other reasonable costs associated with collecting delinquent payments.
5. DELIVERY TERMS, INSPECTION & ACCEPTANCE
5.1 All purchases of physical items from Setex are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
5.2 Unless otherwise specified in the applicable Order, Reseller shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by Setex with respect to its net income.
5.3 Any estimated delivery date communicated by Setex to Customer is an estimate of the approximate date the products are expected to be delivered and Setex does not promise, guarantee or otherwise obligate itself to have the products shipped on or before that time. The estimated delivery date is subject to change. Any delay in payment by Customer may result in a delay in delivery.
5.4 Reseller shall inspect the Products immediately upon receipt by Reseller. RESELLER SHALL NOTIFY SETEX IN WRITING OF ANY NON-CONFORMING PRODUCTS OR SHORTAGES WITHIN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF THE PRODUCTS BY RESELLER. No rejection of non-conforming Products by Reseller is effective if Reseller fails to notify Setex in writing of such rejection within ten (10) business days following receipt of the Products by Reseller. Reseller’s failure to notify Setex of any non-conforming Products or shortages within ten (10) business days following receipt of the Products by Reseller constitutes acceptance of the Products by Reseller and Reseller’s waiver of any right of inspection and of any claims of defects that could have been discovered upon a reasonable inspection of the Products.
6. INTELLECTUAL PROPERTY OWNERSHIP.
6.1 Setex Patents. One or more patents owned by Setex apply to Setex’s Products.
6.2 Setex Technology. Any Technology developed by Setex, whether or not requested and/or paid for by Reseller, and whether or not developed in conjunction with Reseller’s employees or agents, is the exclusive property of Setex. “Technology” means all know-how, information, ideas, inventions, modifications, prototypes, tools, other tangible embodiments, and works of authorship, including without limitation, specifications, drawings, software, databases, compilations, schematics, documentation, and presentations. No right, express or implied, is granted by this Program Agreement to Reseller to use in any manner the name or any other trade name or trademark of Setex.
6.3 Product Use Restrictions. Reseller agrees not to: (i) reverse engineer the Products; (ii) attempt to derive the production method(s) of Products; or (iii) use Products to acquire any intellectual property rights or file any patent applications based on Products without Setex’s prior written consent in each case. If Reseller transfers Products to Reseller’s affiliates, contractors, or agents (“Related Persons”), Reseller shall cause its Related Persons to abide by the foregoing product use restrictions.
6.4 Joint Development; Derivative Works. Setex has ongoing research and development programs to design, prototype and evaluate different materials to meet the specifications of applications in diverse sectors. Setex welcomes the opportunity to work with customers to understand their applications including material requirements and manufacturing parameters. If Reseller is interested in exploring product development opportunities with Setex, please contact us at retail@setextechnologies.com. Reseller agrees, in advance of creating any Derivative Works, to negotiate in good faith with Setex to establish the terms of a joint development or commercial license agreement governing such Derivative Works (each a “License”). Unless and until Reseller and Setex have entered into such a License, Reseller will not undertake the development of any Derivative Works. “Derivative Works” means any Technology developed by Reseller and/or Resellers Related Persons (solely or in collaboration with others) that incorporates Setex Products or is based on Setex Products or Setex Technology.
7. WARRANTY DISCLAIMER; ASSUMPTION OF RISK; INDEMNITY
7.1 PRODUCTS ARE SOLD “AS IS”. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT AS PROHIBITED BY LAW, SETEX MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND SETEX SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES WITH RESPECT TO THE PRODUCTS OR SERVICES (IF ANY) SUPPLIED HEREUNDER.
7.2 SETEX MAKES NO REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) THAT PRODUCTS OFFERED FOR SALE BY SETEX COMPLY WITH ANY LAWS, STANDARDS, CODES, OR REGULATIONS GOVERNING THEIR PURCHASE, USE, HANDLING, STORAGE, RESALE, TRANSPORTATION, DISPOSAL, EXPORT OR IMPORT IN ANY JURISDICTION OUTSIDE OF THE UNITED STATES.
7.3 Notwithstanding anything to the contrary, no representation or other affirmation of fact, including without limitation statements regarding suitability for an application or performance of the Products whether made by Setex's employees, agents, or otherwise shall be deemed to be a warranty by Setex for any purpose, or give rise to any liability of Setex whatsoever.
7.4 High Risk Applications. Unless specifically agreed to in writing by a duly authorized representative of Setex, Setex’s Products have not been tested or otherwise certified by Setex as fit for use, and are not meant to be foolproof or fault-tolerant, in applications (e.g., nuclear, aerospace, mobile vehicles, medical devices or equipment, or weapons systems) in which the failure of the Products could lead directly or indirectly to death, bodily injury, or severe property or environmental damage (“High Risk Applications”). Accordingly, Reseller shall not market the Products as being suitable for High Risk Applications. Notwithstanding anything to the contrary, Reseller agrees that Setex will not be liable for any claims or damages arising from Reseller’s marketing of Products for any High Risk Applications and Reseller shall indemnify Setex from any third-party claims arising out of or related to any representations by Reseller that the Products are suitable for High Risk Applications.
7.5 Reseller shall indemnify, defend and hold Setex harmless from and against any and all claims brought by any third party against Setex arising out of or related to any warranty or representations made by Reseller to its customers concerning the Products.
