Dealer Agreement

SPA PRODUCTS CANADA DEALER AGREEMENT

THE PARTIES:

The parties (Ontario Trade Printers Inc., doing business as Spa Products Canada (hereafter "SPC"), and the dealer or commercial partner described as the customer / purchaser in this quote, sales order, or invoice (hereafter "the Dealer" or "Dealer"), which are collectively referred to as "the parties," the parties agree and stipulate as follows;

INTENT OF THIS AGREEMENT:  

SPC desires to sell its products through select dealers that offer excellent end-user service; and,  The Dealer is an experienced seller, marketer, and/or installer or repairer of hot tubs, swim spas, pools, or related accessories; and, SPC and the Dealer desire to enter into this Agreement whereby the Dealer sells SPC’s products to End-User customers, or uses such products for display purposes in aid of selling the products to end-user customers (consumers).

DEFINITIONS and RECITATIONS:

An authorized Dealer (the “Dealer”) is an entity which has been or may hereafter be qualified and approved to sell products manufactured by Hot Tub Products, LLC and/or other manufacturers or products and which are sold or distributed by Spa Products Canada (“SPC”) to the Dealer. Dealer account approval or renewal is based on various factors and market conditions, and ongoing status as a dealer is determined at the sole discretion of SPC. Such criteria may include considerations such as, but are not limited to, proximity to other authorized Dealers, market history, market conditions, type of retail outlet, other products sold, customer base, sales and service performance, customer reviews or complaints, reputation, projected sales volumes, credit worthiness, state of accounts and payments, and aspects of The Dealer's physical location.

DEALER TYPES:

SPC offers three Dealer status levels: Displaying Dealer (“DD”) and Non-displaying Dealer (“NDD”), and Sub-Distributor Dealer ("SDD"), as defined below:

DISPLAYING DEALER (“DD”)

Unless otherwise permitted by SPC in writing, a “Displaying Dealer” (“DD”) must maintain a “brick and mortar” retail store or showroom, with regular hours of operation accessible by the public. The retail premises must meet all purchasing requirements as specified by SPC herein to remain a Displaying Dealer (“DD”) in good standing.

NON-DISPLAYING DEALER (“NDD”)

Non-displaying Dealers are not required to display products publicly, but must actively be in the business of selling hot tubs and/or swim spas or pools or related accessories, and/or be in the business of providing related repair or installation services, and must offer ongoing sales support, including after-sales support to customers, and must meet all other requirements as specified by SPC herein or otherwise, to remain a Non-displaying Dealer (“NDD”) in good standing.

SUB-DISTRUBUTOR DEALER (“SDD”)

Sub-distributor dealers are not required to display products publicly but must maintain and operate appropriate warehousing or storage space as required. The Dealer must actively and primarily be in the business of selling hot tubs and/or swim spas or pools or related accessories to retail dealers or resellers, as opposed to selling directly to end-user customers (consumers). SPC may require that SDD’s meet minimum order requirements, or volume requirements, which will be negotiated on a “case-by-case” basis. SDD’s must meet all other requirements as specified by SPC herein or otherwise, to remain a Sub-Distributor Dealer (“SDD”) in good standing.

APPROVED DEALER DESIGNATION

The designation as a Dealer with SPC is non-transferable and pertains only to the location(s) from which the Dealer operates, which have been approved as an SPC "approved location(s)", and/or to any one individual or body corporate. If the Dealer maintains annual calendar sales meeting the stated minimum sales requirements as stipulated by SPC, which may be amended from time to time, the Dealer will be eligible to be listed SPC’s, website and will be eligible to be forwarded possible sales leads in their proximity, at the sole and absolute discretion of SPC.

To maintain status as an approved Dealer (any type or status), the Dealer must abide by all terms and conditions as set out herein. SPC reserves the right, at its sole discretion, to discontinue servicing the account of the Dealer in the event the Dealer does not abide by these Terms and Conditions. SPC reserves the right to unilaterally terminate a dealer without cause or compensation of any kind.

OFFER TO PURCHASE

An Order received by SPC from the Dealer is deemed to be an “offer to purchase” and may be accepted or rejected by SPC as an order at its sole discretion. When an Order is accepted by SPC, it will be confirmed by online order confirmation, phone, or email by a representative of SPC. A standard Order will be invoiced at the time the order is placed, or on the date the Order is shipped, at the discretion of SPC. SPC may also request a deposit or retainer in partial payment for any order.  “Custom orders" will typically be required by SPC to be prepaid by the Dealer, with the amount invoiced to be paid in advance of the order. Accounts in “prepay” status will be invoiced on the date that the Order is placed.

TERMS, CONDITIONS and COVENANTS OF THIS AGREEMENT

1. Appointment as Non-exclusive Dealer

1.1 Subject to the terms and conditions of this Agreement and subject to such implementing rules and instructions as SPC may issue from time to time, SPC hereby appoints Dealer as a non-exclusive dealer of its products.

2. Obligations of Dealer

2.1 Dealer will energetically promote the sale and use of the Products. Without limitation to the generality of the foregoing, Dealer will:

2.1.1 Act as a liaison between the end user and SPC when special questions or concerns arise; and,

2.1.2 Train end users of products sold by the Dealers in the safe operation of the Products as required; and,

2.1.3 The Dealer will not, under any circumstances, permit its staff to make unsubstantiated claims regarding the Products, or promote or advertise any claimed features or operations which are not factual, and specifically appear in either SPC or the manufacturer’s sales or training literature or website information.

2.1.4 The Dealer will not sell showroom or “demo” used or returned Products as new stock. The current condition and accurate status of the Product must be disclosed to any potential end-user customer.

2.2 All of the expenses incurred by Dealer relating to the sale of the Products and the provision of related services will be borne by Dealer except as otherwise expressly provided herein or agreed to in writing by SPC.

2.3 Dealer is responsible for the payment of all costs and expenses, including shipping costs and taxes, owed to SPC.

2.4 Dealer may not, without the consent of SPC, reverse engineer, disassemble, modify, or redesign any Product or component part thereof, or facilitate or provide the products to third-parties who intend to engage in such activities, or use any Product for any purpose other than that for which it is intended, or integrate any Product or component part thereof with any other equipment. Any such actions will render any Product warranties provided by the manufacturer or SPC null and void, and may void safety certifications which may pertain to the products.

2.5 Dealer must maintain acceptable end-user customer assistance and problem resolution to and for the end-user customers of the Products, when the products are purchased from The Dealer.

2.6 Dealer agrees that without the prior written permission of SPC, Dealer may sell the Products only to end-user customers and not to other retailers for the intent of resale. Dealer may only sell SPC products to end-user consumers. The Dealer may NOT resell, transfer, or distribute SPC products to distributors, wholesalers, retailers, resellers, or other Dealers unless pre-authorized in writing by SPC.

2.7 Dealer agrees that without the prior written consent of SPC, Dealer may not sell the Products through any third-party retail, e-commerce sites, auction, or websites, or mass-market sales, including, but not limited to, internet sites or venues such as eBay, Wayfair, Kijiji, Walmart, Etsy, Costco, Canadian Tire, Home Depot, Rona, Amazon, Facebook marketplace, Google Marketplace, Craigslist, or similar.

3. Promotional Information and Materials

3.1 SPC will, at Dealer expense, furnish Dealer with such quantities as is determined by SPC to be reasonable, of standard information and marketing literature in the English language relating to the Products. Upon the termination of this agreement for any reason whatsoever, or otherwise at the request of SPC, Dealer will forthwith return all manuals, product information letters, and similar material provided to Dealer by SPC. SPC reserves the right to review and approve any promotional materials regarding the Products developed by Dealer prior to their use.

3.11 SPC reserves the right to charge Dealer for any printed signage, promotional or marketing materials, relating to SPC’s Product offerings.

3.12 SPC may, as a condition of granting a “Displaying Dealership,” require that “Displaying Dealers (“DD) purchase in-store promotional materials for displayed products. These requirements will be detailed in the PURCHASING REQUIREMENTS as detailed in the SCHEDULE “A” document attached.

3.2 SPC may, at its sole discretion, list Authorized SPC Dealers on its website and other forums in whatever way it is deemed most useful to the end users of the Products.

4. Orders; Minimum Purchases, Ongoing Dealer Requirements

4.1 All orders are subject to any and all of SPC’s standard terms and conditions of sale in effect at the time an order is accepted by SPC from the Dealer. A copy of which can be obtained at the SPC website, or by requesting a copy of our standard terms and conditions, from SPC.

4.11 By placing an order, Dealer will be deemed to have accepted the Terms and Conditions with respect to such order. All orders will be accepted or rejected by SPC in accordance with the Terms and Conditions.

4.2 Minimum Orders and ongoing Dealer requirements:

Please see SCHEDULE “A” attached.

4.3 SPC may, from time to time, include or alter minimum reorder fees, and minimum monthly or annual purchase amounts.

5. Prices, Dealer pricing, Export Control, Resale and Transfer of Goods

5.1 SPC's prices to Dealer for its products are listed on the current Dealer Order and Pricing Form, which will be made available to approved Dealers by SPC.

5.11 SPC reserves the right to update pricing and availability of products, without notice to the Dealer; it is the Dealer’s sole responsibility to verify current pricing prior to placing orders.

5.12 SPC reserves the right update pricing at any time. Orders accepted by SPC will be transacted at the current pricing in effect at the time of the order acceptance by SPC.

5.2 SPC reserves the right, without notice and without liability, to add to, or eliminate Products offered for sale, or to change the design or specifications or availability of any products offered for sale.

5.3 The Dealer is permitted to purchase DISPLAY UNITS and display such items in its showroom(s), and at trade shows (where applicable), at the current Displaying Dealer (DD) pricing.

5.4 SPC’s obligations to sell and deliver the Products is subject in all respects to such Canadian and Provincial laws and regulations as may apply

5.5 Dealer agrees that it will not directly, or indirectly, export, re-export, or transship any Products across provincial or national borders without prior written authorization by SPC. Additionally, even where such export or transshipment is otherwise permitted by this Agreement or by subsequent authorization from SPC, any such activity must also be permitted by Canadian or Provincial laws and regulations, which are in effect at any given time. When requested by SPC, Dealer will provide written certification of its compliance with this paragraph.

5.6 Dealer may not sell any of SPC’s products at a price point which EXCEEDS the manufacturer’s suggested retail price (MSRP) for Canada, as established and amended from time to time by SPC, without the prior written approval to do so by SPC. Dealers may sell at any price BELOW the MSRP, at their discretion, without approval by SPC.

6. Confidentiality

6.1 SPC’s Dealer prices, and all data, information, technology, imagery, marketing materials, logos, and trade secrets (including, without limitation, the identity of SPC’s dealers and customers and prospective dealers and customers and their requirements, SPC’s methods of doing business, SPC’s proprietary technical documentation, and all information relating to the Products and SPC’s operations) are deemed to be “Confidential Information”. Any Confidential Information that is disclosed to Dealer, or otherwise acquired or learned by Dealer, will be treated as proprietary and confidential and will, at all times, be and remain the exclusive property of SPC. Neither Dealer nor any of its officers, directors, employees, or agents may:

(i) disclose any Confidential Information to any person, firm, or corporation except with SPC’s prior written consent; or,

(ii) use any confidential information except as necessary to fulfill its obligations hereunder. The foregoing does not apply to confidential information, which is in, or enters, the public domain otherwise than by reason of a breach of this Agreement.

6.2 Dealer may disclose Confidential Information to its directors, officers, employees, and agents who have a need to know such Confidential Information, provided that each such person (or entity) is subject to a non-disclosure agreement with provisions at least as restrictive as those set forth in this Section 6.

6.3 Dealer’s obligations under this Section 6 will survive the expiration or termination of this Agreement and will continue until such time as the Confidential Information enters the public domain, other than by reason of a breach of this Agreement. Dealer acknowledges that a breach of this Section 6 shall cause SPC irreparable harm not fully compensable by money damages and that, upon such a breach, SPC shall be entitled to immediate injunctive relief, without the requirement of posting bond, in addition to all other remedies available under this Agreement, at law or in equity.

6.4 Upon the expiration or termination of this Agreement, Dealer will promptly deliver to SPC all sales literature, materials, and signage which bears any SPC logos, or the logos or imagery of its products then in its possession and all written materials which contain Confidential Information, without retaining copies thereof.

7. Relationship of Parties; Indemnification

7.1 The relationship between the parties established by this Agreement is that of independent contractors (parties) in which SPC is vendor and Dealer is vendee of the Products.

7.2 Dealer is not an agent or employee of SPC, and accordingly has no right or authority to enter into any contracts in the name of or for the account of SPC, nor to assume or create any obligation or liability of any kind, express or implied, on behalf of SPC.

7.3 Subject to the rights granted to and the obligations undertaken by it pursuant to this Agreement, Dealer will conduct its business at its own initiative, responsibility, and expense. Dealer will indemnify and hold SPC, and SPC’s officers, directors, and employees harmless against any and all claims, losses, costs, expenses, liabilities, and damages arising directly or indirectly from, as a result of, or in connection with Dealer’s operations pursuant to this Agreement, as well as SPC’s costs, including attorneys’ fees, in defending against them.

8. Shipping & Freight

8.1 SPC agrees to make reasonable business efforts to adhere to the delivery dates as requested by the Dealer. However, the Dealer agrees and acknowledges that a requested delivery date is not binding on SPC. SPC agrees to exercise care in its selection of carriers and in the delivery of products to carriers. All freight expense charges will be included in the Order invoice to the Dealer and be the sole responsibility of the Dealer.

8.2 Dealer shall assume all risk of loss or damage to an Order during transportation and hereby accepts to insure the Order for its full value.

8.3 “Drop shipping” of an Order will be available to a Dealer on special arrangement with SPC and may be subject to an additional charge by SPC. Availability of drop-shipping may be restricted by types of merchandise and available delivery methods. The Dealer requesting “drop shipping” will assume risk of loss or damage of an Order during transportation.

8.4 In some cases, same- day Orders are possible, but may be subject to a “rush fee” as determined by SPC at the time of the Order. SPC is not obliged to offer same-day shipping.

8.5 Dealers may, at their discretion, arrange shipping using their own carrier, providing that this is disclosed to SPC at the time the order is placed, and that that carrier adhere to all SPC shipping and freight pick-up policies and scheduling requirements.

9. Ordering Policies and Procedures

9.1 Order lead times may vary, in accordance with inventory levels, factory delivery schedules, customs clearances, back-orders of parts or goods, etc… The Dealer must check with SPC to determine the sufficiency for its purposes of expected lead and delivery times before placing orders. SPC cannot guarantee or warranty lead or delivery times but will provide estimated or anticipated or delivery lead time information.  SPC assumes no liability for lost sales, profit, or any other damages associated with product lead or delivery times or schedules.

9.2 Dealer will submit all orders for products and merchandising materials in the form and format as specified by SPC, which may be amended by SPC from time to time, and will include, at a minimum, the following details:

1. All relevant Dealer information
2. All end-user customer details (where applicable)

iii.            Ship-to location details, including whether the ship-to location is a residential or commercial location.

1. Ship-to logistics details such as loading dock, forklift, tailgate, or other local facilities or requirements.
2. Requested pick up date: SPC will advise Dealer on current approximate lead times, at time of order, on Dealer request. See paragraph 9.1 above
3. Requested delivery date

9.3. Order Cancellation and Changes

A cancellation or change request to an Order must be made in writing to SPC and must be received by SPC no later than fourteen (14) days prior to the scheduled shipment date for regularly stocked items. Orders with a Dealer cost value of over $10,000.00 cannot be cancelled, once accepted by SPC, except at SPC’s sole discretion. Custom-ordered items, or non-stocked items are “final sale,” and any such orders or Products cannot be cancelled.

10. Backorders

If SPC is unable to fill an Order in its entirety, the out-of-stock items will be placed on backorder and shipped to the Dealer when next available. The Dealer will not be charged for the backordered items until they ship and any freight discounts applicable to the original Order will also apply to the backordered items.

11. Short Ships and "Mis-Ships" / Errors in shipping

Should a delivered order not match the invoiced product, the Dealer is required to notify SPC within 72 hours (3 days) of delivery. Claims made after that period will not be considered.

12. Payment Methods

Dealer may remit payments via bank wire transfer, Interac E-transfer, or certified cheque, bank draft, or money order. For all prepaid accounts, payment must be received and cleared prior to shipment for stocked goods, and prior to order placement with the factory / manufacturer for “custom,” special, or non-stocked goods. Credit card payments are accepted for orders of less than $10,000.00 in gross value, however, a credit card fee recovery charge of up to 3% may apply on all such transactions. Payment methods may be amended from time to time by SPC.

13. Account Credit Terms

(i)            SPC may elect to offer credit terms to select customers, at its sole discretion. Any credit applications, to be considered by SPC, will require personal guarantees from one or more owners or directors of the business requesting credit, and will be subject to credit investigation and approval of the application by SPC.

(ii)           All Dealer accounts without established credit terms in good standing will be serviced on a prepaid basis only.

14. Dishonoured payments

Any “NSF” returned (non-sufficient funds) cheques, stopped payments, or any other failure to honour a cheque, any credit card returns, or any other returned or declined payment of any kind payment, will result in a $250.00 account management charge. In such a case, the account will be placed on shipping “hold” until NSF charges and invoices have been paid in full. Dealer accounts that have outstanding invoices may, at SPC’s sole discretion, have orders delayed and/or credit privileges (where granted) revoked.

15. Delinquent Payments

Where credit terms have been offered or established, any overdue invoice balance, or any other funds owing to SPC by the Dealer will bear interest at the rate of three percent (3%) per month / thirty-six percent (36%) per annum. The Dealer is liable for any costs incurred by SPC in connection with the collection of outstanding accounts, including but not limited to, collection fees, court filing fess, investigation fees, interest, late fees, document fees, legal service fees, bailiff or sheriff fees, and legal fees.

16. Title to goods

Until such time as Dealer has paid SPC in full for any balances owing with respect to an order or orders, including any fees, interest, or costs associated with collection, SPC will retain title to, and ownership of, all goods shipped or held on behalf of The Dealer.

17. Taxes

All taxes required to be paid on orders will be added to the invoice and must be paid by the Dealer. The payment of any applicable local, provincial, or federal taxes are the responsibility of the Dealer.

18. Product knowledge requirements

SPC may issue or update product sales or product knowledge information, and/or policy, or training materials in printed or electronic format from time to time. Dealer will ensure that all staff or team members involved with the marketing, sale, or service of SPC’s Products are familiar will all such materials and possess a working knowledge of SPC’s products.

19. Warranty

SPC may administer warranty claims on behalf of product manufacturers, but is not obligated to do so, and does not offer its own separate warranties on goods sold, except where SPC is the direct manufacturer of any such goods. Where SPC administers warranty claims, all warranty claim submissions must be submitted by Dealer through the Warranty Claim Form, located on the SPC website, or as otherwise directed by the manufacturer.  If the issue is found to be caused by a manufacturing defect, SPC will forward the warranty claim request to the product manufacturer on behalf of the client but does not assume liability or responsibility for the warranty claim, or its outcome with the manufacturer.  SPC reserves the right, where applicable, to determine if a product will be covered under warranty, on behalf of the manufacturer, at the direction of the manufacturer. Normal wear and tear, cosmetic blemishes, and/or damage due to improper use, damage caused by the elements or customer caused damage, modification, negligence, or transportation are not covered under any warranty, unless otherwise stated by the product manufacturer’s specific warranty document.

19.1 Unless a manufacturer warranty exists for a product or service sold by SPC, or is otherwise specifically offered in writing by SPC, no such warranty exists.

20. General

Except where otherwise expressly stated or contemplated herein, these Terms and Conditions constitute the entire terms and conditions between the parties relating to the subject matter contained herein and, supersede any previous terms and conditions or understanding whatsoever whether oral or written relating to the subject matter contained herein.

21. DISCLAIMER

SPC RESERVES THE RIGHT TO DISCONTINUE THE ACCOUNT AND DEALERSHIP OF ANY DEALER WHO DOES NOT ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, WITHOUT COMPENSATION OF ANY KIND TO THE DEALER, however such an action will not be undertaken by SPC without advance notice.

22. Trademarks and Trade Name(s)

22.1 Unless otherwise agreed upon by the parties in writing, Dealer will clearly identify the Products using SPC’s trademarks or logos, and/or the trademarks or logos of manufacturers whose products are sold by SPC,  as products of SPC and/or their respective product manufacturer, and will sell, market, promote, advertise, and describe the Products under the manufacturer’s trademarks, trade names, model numbers, and other designations and terminology as set forth by the manufacturer of the Products.

22.2 Dealer will not use Trademarks or logos belonging to SPC or the manufacturers of products sold by SPC, except as set forth herein and in connection with the sale and marketing of the Products. The Dealer will not use the trademark or likeness, or name of any product sold by SPC, except in the Dealer’s public sales area(s), or in authorized online marketing or sales venues, in the form and format provided by SPC or the manufacturer, and solely for the purpose of marketing and selling the Products.

22.2.1 Any unauthorized use of the Trademarks by Dealer will constitute an infringement of SPC’s or the manufacturer’s or other trade-mark owner’s rights, and with constitute a material breach of this Agreement.

22.2.2 SPC or the Product manufacturer or trademark owner will take any and such steps as it may deem necessary or desirable, at its sole discretion, to register and protect the Trademarks in the sales area. Dealer will fully cooperate with and assist SPC in registering the Trademarks in sales area if SPC has not already done this, and (if required under the applicable law) in registering as an authorized user of the Trademarks with any governmental agency that SPC deems appropriate and necessary and in cancelling such registration upon demand by SPC or upon termination or expiration of the Distribution Agreement. Dealer shall not attempt to register the Trademarks.

22.3 SPC makes no representations or warranties of non-infringement with respect to the Trademarks in the local sales area. In the event of any infringement of or challenge to any of the Trademarks in the local sales area, Dealer will immediately notify SPC. In no event will Dealer take any action with respect to such infringement or challenge without SPC’s prior written consent. The parties agree that SPC will have the right, but not the obligation, at any time to initiate or assume control of the prosecution of any infringement of, or defense of any challenge to, any of the Trademarks. If any action or proceeding to terminate any infringement or defend any challenge to the Trademarks in Dealer’s sales area is initiated or assumed by SPC, Dealer will cooperate with and assist SPC in the commencement, prosecution, and resolution of such action and, in furtherance thereof, Dealer will execute any documents deemed necessary by SPC. Dealer hereby waives, releases, and holds harmless SPC from any liability or obligation whatsoever with respect to any infringement or alleged infringement by Dealer of intellectual property rights of third parties in connection with or as a result of the use of the Trademarks.

22.4 Any and all goodwill arising from Dealer’s use of the Trademarks will inure solely and exclusively to the benefit of SPC or the product manufacturer, as applicable. Upon any termination of this Agreement, the use license granted in this Section 8 shall terminate immediately, and Dealer shall cease all use of the SPC or product manufacturer’s trademarks immediately.

23. Rights to Inventions and Patent Rights

23.1 Dealer will not be deemed by anything contained in this Agreement, or done pursuant to it, to acquire any right or title to, or interest in, any patent, now or hereafter covering, or applicable to any Product, nor in or to any invention or improvement now or hereafter embodied in any Product, whether or not such invention or improvement is patentable under the laws of any country.

23.2 SPC or the Product manufacturer has the option to prosecute any patent infringement claims and Dealer will cooperate with and render assistance to SPC and/or the manufacturer in such a  prosecution. Dealer will promptly notify SPC in writing of any formal or informal notice to it or institution of any proceeding against it charging patent infringement.

23.3 If any patent infringement claim is made against Dealer charging that Dealer’s use of the Product infringes any patent, SPC or The Product manufacturer, at their sole option, in order to mitigate any damages which might thereafter accrue both to SPC and Dealer, may instruct Dealer to discontinue selling the Product in question until such time as the dispute is settled or may defend the patent infringement claim, in which case Dealer will cooperate and render assistance to SPC on such defence. If Dealer fails to comply promptly with said instructions of SPC, SPC will be discharged from any obligations or liabilities accruing thereafter.

24. Force Majeure

Notwithstanding any provision contained herein to the contrary, neither SPC nor Dealer is liable or responsible for delay in performance or for non-performance during any period in which such performance is prevented or hindered by any cause beyond SPC’s or Dealer’s reasonable control, including, but not limited to, fire, flood, war or act of war, disease outbreak, epidemic or pandemic conditions, embargo, labour difficulties, interruption of transportation, accident, explosion, riot or civil commotion, unionized labour disruption, or other act of nature or man, or other cause beyond our control. In the event force majeure conditions prevent the performance of either party for a period greater than ninety (90) calendar days, either party may terminate this Agreement by written notice to the other. In such a case or cases, any monies already owing to SPC by The Dealer remain due and payable, and SPC’s collection rights remain in force, following any such termination owing to force majeure.

25. Term and Termination

25.1 This Agreement is effective as of the Effective Date and will remain in effect, unless earlier terminated in accordance with the provisions of this Section.

25.2 This Agreement may be terminated by either party immediately upon written notice to the other party, or will terminate (at the discretion of SPC), upon the occurrence of any of the following events:

25.2.1 The filing of any voluntary or court-ordered filing for bankruptcy or for corporate reorganization or for any similar relief by the other party; the filing of any involuntary petition in bankruptcy or its equivalent against the other party, not dismissed within sixty (60) calendar days from the filing thereof; the appointment of a receiver or the equivalent for the other party or for the property of the other party by any court of competent jurisdiction, which receiver has not been dismissed within sixty (60) calendar days from the date of such appointment; the inability admitted by the other party in writing to meet its debts as they mature; or occurrences similar to any of the foregoing under the laws of any jurisdiction, irrespective of whether such occurrences are voluntary or involuntary or whether they are by operation of law or otherwise; or,

25.2.2 The de jure or de facto nationalization or expropriation by civil or military governmental action (whether or not with jurisdiction) of the other party.

25.3 This Agreement may be unilaterally terminated by SPC, effective upon delivery of notice to the Dealer upon any breach by Dealer of the any provisions of the Terms and Conditions and/or Sections 2.5, 6, 8 and/or 9 of this Agreement.

25.4 Without limiting Section 25.3, upon the breach of any obligation under this Agreement by the other party, the aggrieved party may give to the defaulting party notice of such breach, which notice will specify the exact nature of the breach and will expressly state the aggrieved party’s intention to terminate this Agreement in the event the breach is not remedied within thirty (30) days after the receipt of such notice, and if after the expiration of such period, the defaulting party has failed or refuses to remedy such breach, and to pay the damages caused thereby, this Agreement may be terminated forthwith, effective upon dispatch of notice by the aggrieved party to the defaulting party.

26. Effect of Termination

26.1 Neither party possesses nor will be deemed to possess any right of property in or incident to this Agreement, and the parties agree that any termination of this Agreement according to the formalities specified herein will not constitute an unfair or abusive termination or create any liability not set forth in this Agreement of the terminating party to the terminated party. Unless expressly set forth herein, upon termination of this Agreement in any manner, neither party is liable to the other, either for compensation or for damages of any kind, whether on account of the loss by SPC or Dealer of present or prospective profits on present sales or prospective sales, investments or goodwill, and the parties hereby waive any rights which may be granted to them by sovereign entities or political subdivisions in the local sales area which are not granted to them by this Agreement.

26.2 Notwithstanding anything to the contrary in this Agreement, no termination of this Agreement by either party will affect any rights or obligations of either party which are:

26.2.1 Vested pursuant to this Agreement as of the effective date hereof; or,

26.2.2 Intended by the parties in writing to survive such expiration or termination.

26.3 The right of either party to terminate is not an exclusive remedy, and either party is entitled alternatively or cumulatively to damages for breach of this Agreement, to an order requiring performance of the obligations of this Agreement, or to any other remedy available under applicable law.

26.4 Upon expiration or termination of this Agreement, Dealer will deliver to SPC all materials protected under Section 6.

26.5 Dealer grants SPC an option, upon expiration or termination of this Agreement, to purchase part or all of any inventory of Products held by Dealer at the time it receives notice of the exercise of such option. Such option will be exercised by notice delivered in accordance with Section 14 given at any time prior to or within ten (10) calendar days after such expiration or termination. The price will be the lesser of: (i) fair market value at wholesale in the sales area at the time, or (ii) Dealer’s cost for such Products. Dealer agrees to afford SPC’s representatives access to its inventory of Products for inspection prior to the exercise of the option and further agrees not to sell part or all of its inventory of Products other than by sales to its usual end users at usual prices in the ordinary course of business until SPC’s option has been exercised or expires.

27. Assignability

The rights granted to Dealer under this Agreement are not assignable without the prior, written consent of SPC. Any attempted assignment without the consent of SPC is void ab initio. SPC may assign its rights and obligations under this Agreement without the prior written consent of Dealer.

28. Language

Notices and Other Communications. All communications with SPC will be in the English language. All contracts, invoices, and all other documentation exchanged between the parties will be in the English language. The English language version of this Agreement is controlling in case of any inconsistency between such version and any translation thereof. Any notice, request, consent, demand, or other communication given or required to be given hereunder is effective when sent if made in writing, in English, and sent by electronic mail or facsimile with a confirmation copy sent by overnight carrier to the respective addresses of the parties as follows:

To SPC:

Spa Products Canada, a division of Ontario Trade Printers Inc.

Unit #9

51 Woodyatt Drive

Brantford, Ontario, Canada

N3R 7K3

Phone: (289) 815-0940

 

To Dealer:

As per the address and contact information submitted by the dealer, and/or as indicated on any quote, invoice, sales order, or retainer invoice.

 

28a. Canadian provinces or territories with language requirement laws

For the province of Quebec, and/or for any other province or territory which enacts laws which require labelling, manuals, instructions, customer service, or any other legislated linguistic requirement related to the sales of goods or services in any language other than in English in that jurisdiction, including but not limited to Quebec’s ‘Bill 96,” and including any successor or similar legislation, SPC will not sell products or ship directly into that province or jurisdiction. If a Dealer or other operator of any commercial enterprise (entity) located in such a jurisdiction, whether the province of Quebec or other, wishes to sell SPC products in that jurisdiction, the Dealer or entity may purchase goods / products from SPC F.O.B. (“free on board”)  at SPC’s warehouse(s) located outside of the province or territory in question and make their own shipping arrangements for the products. All such importation of Goods or Products into Quebec or other such province or territory with restrictive language laws as noted above is at the sole and absolute risk of The Dealer or entity, with respect to compliance with the relevant laws in the jurisdiction into which the goods are being imported or transported. It is the Dealer or entity’s exclusive responsibility to comply with all relevant language and other laws in the jurisdiction with regard to labelling, instructions, service, warranty, etc… The Dealer assumes all risk and covenants that it will comply with all language laws and requirements in the jurisdiction in question. Where the Dealer imports or transports goods into any jurisdiction with laws as noted above, The Dealer holds SPC and product manufacturers of products sold as harmless and without liability in this regard, and will be solely responsible to pay and indemnify SPC and product manufacturers against any administrative, legislative, penal or court-imposed fines and penalties, litigation, or prosecution, brought against SPC or a product manufacturer, in relation to language laws enacted in the jurisdiction into which the goods are being imported or transported, whether such fines or penalties are levied against the Dealer, SPC or any of its officers, shareholders or directors, or the product manufacturer(s) or its officers, shareholders or directors.  Such indemnification will also include any legal fees and any and all other expenses relating to defending against any prosecution, litigation, charge, or penalty levied by the jurisdiction against SPC or the product manufacturer(s).

29. No Waiver of Rights

Failure at any time to require the other party’s performance of any obligation under this Agreement does not affect the right to require performance of that obligation. Any waiver of any breach of any provision of this Agreement will not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver or modification of any right under this Agreement.

30. Dispute Resolution

Except for disputes arising out or related to of intellectual property, any claim or dispute arising out of, or related to, this Agreement, or the making, performance, or interpretation thereof, will be finally settled by arbitration in accordance with legislation, rules, and regulations of the Arbitration Act, 1991, S.O. 1991, c. 17 (Ontario).

30.1 The award of the arbitrator (if any) shall be the sole and exclusive remedy of the parties regarding any claims, counterclaims, issues, or accountings presented or pledged to the arbitrator. Any disputes arising from this agreement will be heard and adjudicated in Hamilton, Ontario, Canada.

30.2 The fees, costs, and expenses of the substantially prevailing party will be borne by the non-prevailing party. All disputes arising out of or related to intellectual property shall be heard in the Superior Courts of Justice located in Hamilton, Ontario, and the parties hereby irrevocably consent to the jurisdiction of such courts for the resolution of such intellectual property disputes.

31. Counterparts and Electronic signatures

31.1 This Agreement may be executed in any number of counterparts and each counterpart constitutes an original instrument, but all such separate counterparts constitute only one and the same instrument.

31.2 Where no signature is executed, the validity of this agreement is stipulated by the Dealer by any acceptance of the Dealer as provided for in paragraph 37 below.

32. Severability

Should any part of this Agreement be invalid, such invalidity will not affect the validity of any remaining portion which will remain in force and effect as if this Agreement had been executed with the invalid portion eliminated. It is the intent of the parties hereto that they would have executed the remaining portion of this Agreement without including such invalid portion.

33. Law to Govern

33.1 This Agreement is governed by and construed in accordance with the laws of the laws of the province of Ontario, Canada, and is subject to the authority courts thereof. Any disputes arising from this agreement which cannot be settled by arbitration, are subject to the authority and will be heard in the Superior Courts located in Hamilton, Ontario, unless otherwise agreed upon in writing by both parties.

33.2 The parties hereby expressly disclaim the operation of the United Nations Convention on the International Sale of Goods.

34. Headings

The Section headings contained in this Agreement are for reference purposes only and have no effect in any way the meaning or interpretation of this Agreement.

35. Written Agreement to Govern

This Agreement sets forth the entire understanding and supersedes prior agreements between the parties relating to the subject matter contained herein and merges all prior discussions between them, and neither party is bound by any definition, condition, representation, warranty, covenant, or provision other than as expressly stated in this Agreement or as subsequently set forth in writing and executed by a duly authorized officer of each party.

36. CONSIDERATION

36.1 The Contract Parties acknowledge that the mutual covenants and promises contained herein and other good and valuable consideration are adequate and sufficient to support this Agreement.

36.2       Dealer acknowledges that the rights and benefits outlined in this agreement constitute the full extent of all Dealer’s rights pursuant to this agreement. SPC will not and does not have any other obligation or liability to Dealer beyond the scope of this agreement. No other compensation, or potential compensation or liabilities to the Dealer exist or are due, howsoever occasioned.

37. ACKNOWLEDGMENT AND ACCEPTANCE

The acceptance of this may be acknowledged and accepted by the Dealer through various means, including, but not limited to: signature, electronic acknowledgement or acceptance, or payment of a deposit, retainer invoice, or invoice by the Dealer in respect of this quote.

Where the Dealer accepts or acknowledges or pays any amount in settlement of a quote, invoice, retainer invoice or deposit, The Dealer is affirming that it/he/she hereby acknowledges having read and understood all the terms and conditions contained in this agreement, and in our standard terms and conditions of sale and warranty, and agrees to be bound by such terms and conditions for any and all transactions / sales and during the entire course of The Dealer’s ongoing business relationship with Spa Products Canada, and thereafter as applicable, and that acceptance of all such terms, conditions and covenants, constitutes and binding contract and agreement between the parties.

38. Conflict

Where a conflict exists in terms or conditions, or where a special accommodation is made in this document or transactions for the customer,  then the order of precedence in the terms and conditions are as follows:

- Terms and conditions indicated any quote, sales order, invoice, or retainer invoice issued by SPC to the Dealer takes precedence, overriding any conflicting terms and conditions found herein. All other terms and conditions remain in full force and effect.

- For dealers or other commercial partners, the terms and conditions stipulated in the DEALER AGREEMENT take precedence, and where required override any conflicting provisions in our standard terms and conditions of service and sales as referenced above or at our website properties, however, all non-conflicting terms and conditions otherwise remain in full force and effect.

End of agreement. SCHEDULES TO FOLLOW:

SCHEDULE “A”

PURCHASING REQUIREMENTS AND DEALER TYPES

SPC offers three pricing and status levels for dealers:

- Non-Displaying Dealer (“NDD”), Displaying Dealer (“DD”), and Sub-distributor Dealer ("SDD")

- Displaying Dealers are afforded more favourable pricing for the products offered for sale by SPC.  Displaying Dealers (DD) receive a discount on purchases of approximately 10-20% greater than a Non-Displaying Dealer; varying by item.

- Sub-Distributor Dealers are afforded more favourable pricing for the products offered for sale by SPC, with the intention that the products will be sold exclusively to "End-User Customers" (consumers). Sub-Distributor Dealers (SDD) receive a discount on purchases beyond that of a Displaying Dealer "DD," which may vary according to volumes and products offered. SPC reserves the right to impost minimum order values, quantities, and minimum monthly or annual sales volumes to approve or maintain a dealer's status as a Sub-distributor Dealer (SDD).

The Dealer level status purchase requirements:

Non-Displaying Dealers (“NDD”):

-              Minimum INITIAL order / standard minimum orders of CAD $500.00, before shipping costs and HST.  Mixed orders / pallets are allowed; anything you want.

-              Annual purchases of not less than CAD $1,000.00 in SPC products, at NDD Dealer cost. We may waive this requirement at our discretion.

Displaying Dealers (“DD”):

-              Minimum initial order of CAD $3,500.00 at “DD” Dealer cost, before shipping costs and HST; for inventory and/or display items:

o             The purchase minimums note above may include any mix of our products, however…

o             The INITIAL order MUST include at least one SPC P.O.P. floor display (banner stand) for Convert-A-Lift, to be purchased by the Displaying Dealer from SPC. The value of this display will be included toward the minimum initial order value.

o             The initial order MUST include at least one Convert-A-Lift unit, including VacuSeal cover, for a showroom-displayed Convert-A-Lift system mounted on EITHER a hot tub or swim spa.

o             The Displaying Dealer may include in their initial order any other mix of products currently being offered by SPC to achieve their minimum initial stocking order value.

o             Displaying Dealers’ contact information, address and website will be listed in our “Find a Dealer” information on our spaproducts.ca website.

-              Thereafter, annual purchases of not less than CAD $3,500.00 in SPC products, at “DD” Dealer cost.

No order minimums, except where bundles or minimum item order requirements exist. Mixed orders / pallets are allowed.

Sub-Distributor Dealers (“SDD”):

-       Terms and conditions of this status grant by SPC will be negotiated on a case-by-case basis.

All orders are prepaid, unless credit terms are established. Prices noted above do not include shipping, any required installation services, or taxes. All orders are typically shipped EITHER F.O.B. from our warehouse in Brantford, Ontario, OR, from the manufacturer’s warehouse in Branford, Connecticut, U.S.A., or from other locations, at our discretion. SPC reserves the right to waive or alter the aforementioned provisions at any time.

SCHEDULE “B”

CURRENT PRICING

All pricing is subject to change. Please request the current dealer pricing by contacting SPC at +1 (289) 815-0940 or: [email protected]