Online Reseller Agreement

1. Modification of the Terms. By entering into this Agreement, Seller affirms its agreement to adhere to the terms in the currently effective Wellmore Authorized Distributor Policy for Canada, Wellmore Authorized Reseller Policy for Canada, or Wellmore Authorized Retailer Policy for Canada as applicable to Seller (the “Terms”).  This Agreement supplements, amends, and is deemed incorporated into the Terms.  Except as supplemented or amended pursuant to the terms and conditions in this Agreement, the Terms remain unchanged and in full force and effect as written.  Unless otherwise defined herein, capitalized terms shall have the same meanings ascribed to them in the Terms.

2. Authorization of Online Sales. Other than websites that may be defined in the Terms as “Permissible Public Websites,” the Terms prohibit the sale of the Products on any website, online marketplace, mobile application, or other online forum without Wellmore’s prior written consent.  Execution by Wellmore of this Agreement constitutes Wellmore’s consent, and the various provisions in the Terms pertaining to such prohibition are deemed amended in order to effectuate such approval.  Subject to and to the extent provided by the terms and conditions herein, including the Wellmore Online Sales Guidelines attached as Exhibit A, Seller may market for sale and sell Authorized Products (as herein defined) solely and exclusively at the website(s) and/or mobile application(s) identified as approved by Wellmore in the Application for Website Approval above or designated as Permissible Public Websites in the Terms (collectively, the “Authorized Websites”).  “Authorized Products” means (i) the Products for any Permissible Public Website, and (ii) for each website in the Application for Website Approval above, the Products sold under the Brand(s) identified as Approved by Wellmore.  Seller shall not market for sale or sell Products on or through any other website, online marketplace, mobile application, or other online forum, and shall not sell Products other than Authorized Products on the Authorized Websites. 

3. Intellectual Property. The license granted to Seller in the Terms to use the Wellmore IP is hereby amended to authorize use of the Wellmore IP to market and sell Authorized Products on the Authorized Websites, subject to the additional quality controls contained herein.  Seller acknowledges that it owns no right, title, or interest in any of the Wellmore IP except as granted in the Terms or herein.  Seller’s license to use the Wellmore IP to market and sell Authorized Products on the Authorized Websites shall be revoked immediately upon termination of this Agreement.

4. Termination. Wellmore, in its sole and absolute discretion, may terminate its approval for Seller to market and sell all or certain Authorized Products at one or all of the Authorized Websites, and Seller must cease all such marketing and sales immediately on the applicable Authorized Website(s) upon the effective date of such termination.  Upon termination of approval to market and sell all or certain Authorized Products at one or more Authorized Websites, Seller’s authorization to use Wellmore IP on the applicable Authorized Websites shall be revoked.  Wellmore may terminate this Agreement with written notice at any time.  On termination of Seller’s status as an Authorized Distributor, Authorized Reseller or Authorized Retailer pursuant to the Terms, this Agreement shall terminate automatically, and Seller shall immediately cease all marketing and sales of Authorized Products on the Authorized Websites.

5. Availability of Injunctive Relief. If there is a breach or threatened breach of the Terms or Sections 2 (Authorization of Online Sales), 3 (Intellectual Property), or 4 (Termination) of this Agreement, it is agreed and understood that Wellmore will have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement.  No failure, refusal, neglect, delay, waiver, forbearance, or omission by Wellmore to exercise any right(s) herein or to insist upon full compliance by Seller with Seller’s obligations herein shall constitute a waiver of any provision herein or otherwise limit Wellmore’s right to fully enforce any or all provisions and parts thereof.

6. Indemnification. Except as otherwise provided herein, Seller shall, and hereby does, indemnify, defend, save and hold harmless Wellmore, and its directors, officers, employees, shareholders, members, partners, counsel, auditors, accountants, agents, advisors and all other representatives and each of the heirs, executors, successors and assigns of any of the foregoing, from and against any and all losses, liabilities, obligations, actions, causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever, in law, admiralty, or equity, known or unknown of any kind to the extent they are caused by, arise from, or are incurred in connection with (a) any breach of, or failure to perform, any term, covenant or condition in the Agreement by Seller, or (b) the negligence or willful misconduct of Seller or its officers, employees, agents or contractors.

7. Miscellaneous.

• Wellmore reserves the right to update, amend, or modify this Agreement upon written notice to Seller.  Unless otherwise provided, such amendments will take effect immediately, and Seller’s continued use, advertising, offering for sale, or sale of the Authorized Products on the Authorized Websites following notice of the amendments will be deemed Seller’s acceptance of the amendments.

• No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.

• If any provision of this Agreement is held contrary to law, the remaining provisions shall remain valid.

• This Agreement may not be assigned or transferred by Seller without the prior, written consent of Wellmore.  Wellmore is entitled to assign this Agreement, in whole or in part, without Seller’s consent to any Wellmore-affiliated company or to any entity to which Wellmore sells, transfers, conveys, assigns, or leases all or substantially all of its rights and assets with respect to the development, production, marketing, or sale of the Products.  This Agreement is intended for the benefit of the Parties and their permitted assignees, and no other person will be entitled to rely upon this Agreement or be entitled to any benefits under this Agreement.

• Entire Agreement. This Agreement, the Terms and their attachments, if any, constitute the entire agreement between the Parties regarding the contemplated transactions and supersedes all prior agreements and understandings between the Parties relating to the sale of the Products online.

• The descriptive headings and sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.  Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same will not apply a presumption that the terms hereof will be more strictly construed against one Party by reason of the rule of construction that a document is to be construed more strictly against the Party who itself or through its agent prepared the same, it being agreed that all Parties, directly or through their agents, have participated in the preparation or negotiation hereof.

• This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

• Governing Law. The terms of this Agreement and any dispute arising under it shall be governed by, construed, and enforced in accordance with the laws of Delaware, without regard to its choice of law rules.

• Confidentiality. This Agreement, and its attachments, if any, constitute confidential, proprietary information of Wellmore and shall not be used for any purpose other than the authorized advertising and sale of the Authorized Products nor disclosed to any third party without the prior written consent of Wellmore.

• The following provisions shall survive the termination of this Agreement:  Section 3 (Intellectual Property); Section 6 (Indemnification); Section 7(h) (Governing Law); Section 7(i) (Confidentiality); Section 7(j) (Survival); Section 7(k) (Dispute Resolution); and Section 7(l) (Waiver of Jury Trial).
• Dispute Resolution. In the event of a dispute over the terms or performance under this Agreement, the Parties expressly submit to personal jurisdiction and venue in the state or federal courts of record in the State of Delaware.  In the event of a breach or threatened breach of this Agreement by Seller, Seller is responsible for Wellmore’s legal fees and costs associated with any lawsuit or other action necessary to obtain appropriate relief.  Notwithstanding the foregoing, Wellmore may apply for injunctive relief in any venue(s).

• Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES’ ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF.  THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.

• Language. The parties hereto confirm that it is their wish that this agreement as well as other documents relating hereto, including notices, have been and shall be drawn up in the English language only.  Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents, y compris tous avis, s’y rattachant, soient rédigés en langue anglaise seulement.

The Parties have caused this Wellmore Authorized Online Seller Agreement for Canada to be executed in their respective names by their duly authorized representatives.

EXHIBIT A

WELLMORE ONLINE SALES GUIDELINES

1. The Authorized Websites must be operated in Seller’s legal or registered business name or trade name.

2. The Authorized Websites must not give the appearance that they are operated by Wellmore or any third party.

3. Anonymous sales are prohibited. Seller’s full legal name or registered fictitious name, mailing address, email address, and telephone contact must be stated conspicuously on the Authorized Websites and must be included with any shipment of Authorized Products from the Authorized Websites or in an order confirmation email sent at the time of purchase. 

4. At Wellmore’s request, Seller will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Authorized Websites.

5. The Authorized Websites shall have a mechanism for receiving customer feedback and Seller shall use reasonable efforts to address all customer feedback and inquiries received in a timely manner. Seller agrees to provide copies of any information related to customer feedback (including any responses to customers) regarding the Authorized Products to Wellmore for review upon request.  All such copies of information provided to Wellmore shall be clear of any personally identifiable information relating to consumers prior to transmission.  Seller agrees to cooperate with Wellmore in the investigation of any negative online review associated with Seller’s sale of the Authorized Products and to use reasonable efforts to resolve any such reviews.  Seller shall maintain all records related to customer feedback for a period of one (1) year following the creation or submission of such a record, to the extent legally permitted.  Nothing in this paragraph shall be construed as a request to Seller to disclose personally identifiable information about its customers to Wellmore.

6. The Authorized Websites shall be in compliance with all applicable privacy, accessibility, anti-spam, and data security laws, regulations and industry standards, including, but not limited to, the Personal Information Protection and Electronic Documents Act (Canada), S.C. 2000, c. 5 and similar provincial privacy legislation, Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“CASL”) and the Payment Card Industry Data Security Standard (“PCI DSS”), including, without limitation, all notice, consent and unsubscribe obligations thereunder. Seller shall maintain and make available on the Authorized Websites detailed privacy policies that accurately describe its personal information practices and will remain in compliance with its privacy policies and the requirements of any contract to which it is a party.  So long as Seller retains authorization to sell Products on the Authorized Websites, Seller will maintain a comprehensive written information security governance program, which will include reasonable and appropriate physical, administrative and technological controls designed to prevent the unauthorized access to, use, disclosure, destruction, or loss of personal information in Seller’s custody and control.  Seller will not send or cause or permit to be sent any commercial electronic messages or install or cause to be installed any mobile applications or other computer programs, as such terms are defined under CASL, on behalf of Wellmore.  Seller will solely be responsible for all commercial electronic messages sent in connection with this Agreement.

7. Seller shall be responsible for all fulfillment to its customers who order Authorized Products through Authorized Websites, any applicable taxes associated with such purchases of Authorized Products, and any returns of Authorized Products.

8. Seller shall ensure that any third-party logistics provider engaged by Seller to store inventory or fulfill orders for the Authorized Products is aware of and complies with all product quality controls and customer service standards described herein or otherwise conveyed to Seller by Wellmore. Seller shall ensure that any such third-party logistics provider stores Seller’s inventory of Authorized Products separately from any Authorized Products owned by any third party.  Upon request by Wellmore, Seller shall disclose its use of third-party logistics providers, including the identity and location of any third-party logistics provider, and shall cooperate with Wellmore in investigating any concerns related to the Authorized Products that may relate to Seller’s use of a third-party logistics provider.  Under no circumstances shall Seller permit orders to be fulfilled by a third-party logistics provider in any way that results in the shipped Authorized Product coming from stock other than Seller’s.