Terms and Conditions – Reseller Agreement
1. Definitions. As used herein, the following terms shall have the meanings set forth below:
(a) “Agreement”, or “this Agreement”, means the Reseller agreement to which these terms and
conditions are attached, and incorporated therein by reference;
(b) “Battery Technologies” means battery technologies which illuma may manufacture and/or make
available for sale;
(c) “Reseller” means the party indicated as such on the first page of the Agreement;
(d) “illuma” means iLLUMA-Drive Inc.;
(e) “illuma Products” means any illuma Equipment or Technologies;
(f) “Lighting Equipment” means LED lighting products, including fixtures, controls, power products,
sensors and any other products related to illuma’s platform(s);
(g) “Onboarding Requirements” means those requirements, if any, described in a Schedule attached to
and incorporated by reference into the Agreement.
(h) “Owner” means an owner of a given locale where illuma Products are to be installed;
(i) “Prime Agreement” means an agreement between illuma and an Owner under which illuma may
(j) “Services” means services related to illuma Products; and
(k) “Subcontract Agreement” means an agreement under which illuma may wish to subcontract to
Reseller a portion of services illuma would otherwise provide under a Prime Agreement.
2. Obligations of Reseller.
(a) Reseller shall at all times use its reasonable best efforts to promote, provide and sell illuma Products
including, but not limited to, Lighting Equipment and, in general, promote illuma goodwill, reputation and best
interests in connection with the SERVICES. Reseller agrees to follow the ethical guidelines set forth by illuma
for its employees and suppliers.
(b) Reseller shall respond to illuma sponsored leads and customer requests within a 24-hour period.
(c) Reseller rates for any Services shall follow illuma pricing policies.
(d) Reseller must have an on-time policy in place, subject to review and approval by illuma.
(e) Reseller is free to pursue any sales channel prospects, except that the following potential sales
channels may only be pursued upon the reseller’s receipt of illuma’s prior express written approval: (i)
municipalities, federal or state/provincial government offices and agencies and/or educational institutions;
and/or (ii) export sales channels.
(f) Notwithstanding any other provision hereof, this Agreement shall automatically terminate in the event Reseller is not in good standing order.
(g) Reseller shall use commercially reasonable efforts to administer warranty claims made by Reseller’s customers in respect of illuma Products, consistent with the terms and conditions of illuma’s warranty policies (as same may be amended from time to time by illuma at its discretion).
(h) Reseller is expected to reach minimum purchase volume targets provided for in the Agreement.
3. No Reverse Engineering. Reseller will not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive any coding information, techniques, processes, algorithms, know-how or other information from the licensed sales kit or any illuma Products (collectively, “Reverse Engineering”) or directly or indirectly permit or induce the foregoing. Any direct or indirect actual or attempted Reverse Engineering shall void the warranty on the applicable illuma Product, with the effect that illuma shall be relieved of its obligations to assist reseller with any warranty claims. In addition, illuma reserves the right as it determines appropriate in the case of any breach by reseller of its obligations in this Section regarding Reverse Engineering, to: (i) make claim(s) for damages; and/or (ii) due to the fact that illuma Products have been developed at significant cost to illuma and have significant commercial value to illuma with the effect that Reverse Engineering may cause illuma irreparable harm for which damages may not be adequate compensation, seek order(s) of injunctive relief.
4. No Label Tampering. Reseller will not directly or indirectly attempt to tamper with an illuma label on the licensed sales kit or any illuma Product (including without limitation modification, removal, or re-labelling), and shall not directly or indirectly permit or induce the foregoing. Any attempted or permitted label tampering of any kind tampering of any shall void the warranty on such illuma Product, with the effect that illuma shall be relieved of its obligations to assist Reseller with any warranty claims. In addition, illuma reserves the right as it determines appropriate in the case of any such label tampering matters, to make claim(s) for damages and/or seek order(s) of injunctive relief.
5. Consumer Direction. Reseller shall be solely responsible for advising first end-users of the impact that any direct or indirect attempted or actual Reverse Engineering and/or label tampering will have on the applicable warranty.
6. Confidentiality of Competitive Information. Reseller acknowledges that Reseller will be entrusted with certain information about illuma’s business and operations, including without limitation information and trade secrets (printed or otherwise) concerning past, present, future and contemplated products, services, operations and marketing techniques and procedures, customer preferences or requirements (previous, current or prospective), and supply chain related information (collectively, “Trade Secrets”), the disclosure of any of which to an illuma competitor or the general public, or other improper use of same, would be highly detrimental to the interests of illuma. Reseller shall not re directly or indirectly disclose to any person or in any way make use of any of the Trade Secrets in a manner that is intended, or could reasonably be expected, to be injurious or harmful to illuma and/or it business (both current and future prospects). Neither party shall make a public announcement or issue a press release with respect to the relationship of the parties without the prior written consent of the other party.
7. Service Parts. Reseller shall only use illuma genuine parts in the maintenance and repair of illuma distribution and control equipment.
8. Returns and Re-stocking Fee. In the event any illuma Products are returned to illuma after purchase, or orders are cancelled prior to delivery, a fee equal to thirty percent (30%) of the price paid by Reseller for such illuma Products shall be payable by Reseller to illuma at the time the illuma Products are returned. All products must be original packaging and in resalable condition.
9. Semi-annual Review. Reseller shall meet in person or by web conference with illuma or an illuma representative at least twice each year to review the Reseller’s business contemplated hereby, any developments or changes affecting such business, and the potential setting of performance goals for the next six month or yearly period.
10. Advertising. illuma shall furnish reasonable quantities of sales literature, brochures, samples and technical data to Reseller without charge. Customized literature templates will be provided to the Reseller for a nominal fee. Reseller shall follow illuma’s policies, procedures and instructions for the handling of marketing materials supplied by illuma.
11. Training. illuma shall provide an instructor certification course for Resellers. illuma shall also provide training for SERVICE personnel on a web-based application for such training to be determined at the time the training is provided. Upon completion of the applicable training, Reseller, or its personnel who completed the training, shall be considered “iLLUMA-Drive CERTIFIED Partners” for illuma products. illuma has sole discretion to determine whether to offer Dealer/Installer, Distributor, or Rep Agreements to CERTIFIED Partners.
12. Engineering Standards. Reseller shall maintain a high level of capability for engineering and specification work required to promote and perform the sale of illuma products. Reseller shall maintain the necessary product knowledge and familiarity in order to provide the Services in a professional and competent manner and in accordance with the highest standards of the Industry. Reseller shall maintain, in writing, at all times, and provide to illuma at illuma’s request, a quality manual that meets all the illuma products service provider industry federal, provincial, and local laws, as well as industry standards. illuma shall provide the services in a professional manner and Reseller shall maintain strict quality control in the provision of services that may be approved and monitored by illuma. Notwithstanding the training provided by illuma, Reseller agrees to comply with all federal, provincial, and local laws, regulations, and requirements when providing services.
13. Liability and Insurance. Reseller assumes full responsibility for and shall indemnify and hold illuma harmless against all liability loss and damages to Reseller, its employees, agents, sub-contractors, customers and all third persons and damage or loss, including loss of use, to property belonging to any of the foregoing arising on account of the act or failure on the part of Reseller, its employees or agents, in conjunction with any services or other activity of Reseller pursuant to this Agreement. Reseller will purchase and maintain, at its sole expanse, liability insurance and property damage insurance as follows:
(a) Commercial General Liability insurance (including products/completed operations coverage) covering Reseller, its employees and agents, in the minimum coverage amount of $2,000,000 per Occurrence General Aggregate. Such policies shall name illuma as an additional insured and shall not be cancellable prior to thirty (30) days written notice to illuma. Reseller shall furnish illuma with satisfactory evidence of such policies of insurance at illuma request.
14. Trademarks. Reseller shall not change or vary any illuma trademark or use any illuma trademark or trade name or any name or mark confusingly similar thereto except in a form approved by illuma and shall only indicate that Reseller is independently owned. All trademarks associated with illuma or illuma Products shall (i) remain the sole and exclusive property of illuma, and all goodwill associated with illuma trademarks shall remain vested in illuma at all times, and (ii) in each case used be indicated to be a trademark of illuma. Reseller shall immediately cease using any such Identification upon termination of this Agreement.
15. Intellectual Property. Reseller agrees that illuma shall retain (or obtain as the case may be) all right, title and interest in and to all Intellectual Property that currently exists (or may in future exist) with respect to the illuma Products and/or the operations of illuma (or its affiliated entities) or is otherwise created outside of the scope of this Agreement, and nothing herein assigns, transfers or grants to Reseller an interest in or to any Intellectual Property. For the purposes of this Section, “Intellectual Property” means all intellectual property, including without limitation, know-how, ideas, processes, procedures, inventions, innovations, methods, techniques, technology, computer programs, algorithms and code, original works of authorship, designs, formulas, discoveries, (whether or not patentable, and all improvements, rights, and claims related to the foregoing).
16. Termination for Convenience.
(a) illuma has the right to terminate this Agreement or any work being performed under this Agreement or Subcontract Agreement stemming from this Agreement at any time on thirty (30) days prior written notice to Reseller. In such event, notwithstanding any other provision herein, all work and services being performed under this Agreement will terminate effective as of the date of the notice of termination. Upon such termination, illuma will pay Reseller for the services performed prior to the date of termination, provided Reseller is not in default hereunder, or under any Subcontract Agreement. illuma shall have any right or remedy available at law or equity for any breach(es) by Reseller.
(b) Within three (3) days of illuma providing written notice of the termination of this Agreement, Reseller shall: (i) return to illuma all information of a confidential nature including technical information and drawings, demonstration products, and training manuals which illuma has supplied Reseller pursuant to this Agreement; and (ii) shall return to illuma the licensed sales kit; and (iii) ensure that it retains no copies (either in electronic of hard copy form) of any such materials or information related thereto. Except as provided for in this Agreement, Reseller shall not in any manner disclose to third parties, advertise or publish the terms of this Agreement without the express written consent of illuma unless required to do so by a governmental body or court of law.
17. Term. The term of this Agreement shall commence on the Effective Date and remain in effect for the period of one (1) year (the “Term”) unless sooner terminated. illuma may extend the Term for an additional one (1) year period if illuma, no later than thirty (30) days prior to the expiry date of the Term, provides Reseller with written notice of illuma’s decision to extend the term. illuma may similarly extend the Term for additional one-year periods in the manner provided for in the preceding sentence.
18. Termination Upon Default. This Agreement may be terminated immediately by either party:
(a) for breach by the other party of any of the terms and conditions hereof provided that notice has been given to the breaching party of the breach and the breach has not been cured within fifteen (15) days of the date of notice of breach; or
(b) for failure of the other party to pay any amounts payable when due; or
(c) if the other party makes an arrangement, extension or assignment for the benefit of creditors, or becomes insolvent or becomes subject of any proceeding under provincial or federal law for the relief of debtors, or otherwise ceases to function as a going concern.
19. Non Solicitation. Reseller shall not, during the period commencing on the Effective Date and ending twelve (12) months from the date this Agreement is terminated, be a party to or abet any solicitation of customers, clients or suppliers of illuma or any of its subsidiaries, to transfer business from illuma or any illuma subsidiaries to any other person, or seek in any way to persuade or entice any employee of illuma or any illuma subsidiaries to leave that employment or to be a party to or abet any such action.
20. Survival. Notwithstanding any termination hereof, the provisions of this Agreement that are intended to survive its termination shall survive the termination of this Agreement, such survival to include, but not be limited to, those provided for in Sections 4, 5, 7, 16 and 20.
21. Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be sent by email and/or registered or certified mail, return receipt requested, or by commercial overnight courier service offering verification of delivery, and addressed to the parties at their respective addresses listed herein, or to such changed address as any party entitled to such notice shall have provided in writing to the other party. Any such notice or communication so mailed shall be deemed delivered and effective (i) immediately in the case of emailed notice or (ii) three (3) days after mailing thereof or (iii) if delivered by commercial service effective the day after sending. All notices or communications provided or permitted herein shall be in writing and considered delivered when sent to Reseller at the address referenced on the front page of this Agreement, and to illuma at: iLLUMA-Drive Inc., 5311 John Lucas Drive, 3rd Floor, Burlington, ON, L7L 6A8, Attention: Derek Hopkins, (firstname.lastname@example.org).
22. Independence of Parties. Reseller is an independent contractor and nothing contained in this Agreement shall be construed as: making Reseller an agent or employee of illuma for any purpose; and/or creating any partnership, joint venture, co-owner or other relationship between the parties. Neither party shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. Reseller shall have no right power or authority in any way to bind illuma to the fulfilment of any condition not herein contained or to any contract or obligation express or implied. Reseller specifically agrees that: Reseller shall have no power or authority to represent illuma in any manner; Reseller will solicit orders for the illuma Products and Services as an independent Reseller in accordance with the terms of this Agreement; and Reseller will not at any time represent orally or in writing to any person or entity that it has any right, power or authority not expressly granted hereunder. All rights and powers not expressly granted to Reseller hereunder are expressly reserved to illuma. For greater certainty, Reseller shall be solely responsible for paying all income or other taxes, or other charges of any kind, due in connection with, or related to, any amounts earned by Reseller hereunder, and all financial obligations of any kind associated with Reseller’s business shall remain the sole obligation of Reseller.
23. Assignment. Reseller shall not transfer or assign, or subcontract out, its rights hereunder or any part thereof without the prior written consent of illuma. illuma may assign its rights and obligations hereunder upon providing Reseller with seven (7) days prior written notice.
24. Warranty. Reseller warrants that the Services performed by it hereunder will be performed in accordance with generally accepted professional standards. The Services provided under this Agreement shall be warranted as set forth above for a period as set forth in the Prime Agreement.
25. illuma Warranty. illuma offers a limited 10-year warranty on its products. This warranty does not extend beyond the potential replacement of illuma products and services.
26. Indemnity. Reseller hereby releases illuma from any and all liability for damage to property or loss thereof, personal injury or death during the term of this Agreement or thereafter, sustained by Reseller, any Reseller employee, agent, or subcontractor employed by Reseller as a result of performing the Services under this Agreement or arising out of the performance of such Services. Reseller will indemnify and hold illuma harmless from and against any and all loss, liability, damage, or injury to property (including, but not limited to pollution, environmental, or other damage or the expenses and responsibility for the remedial action required by that damage), bodily Injury or death (including Reseller’s own employees), fines, penalties, costs, claims, demands, and expenses (Including attorney’s fees) or whatever type or nature which shall be caused by, arise out of, or in any manner connected with the illuma Products, Resellers violation of any laws or regulations, or Reseller’s performance hereunder.
27. Dispute Resolution. In the event of a dispute between the parties arising out of or related to this Agreement, the parties agree to use the following procedure prior to either party pursuing other available remedies.
(a) A meeting shall be held promptly between the parties, attended by representatives having decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute.
(b) If, within thirty (30) days after such meeting, the parties have not succeeded In negotiating a resolution of the dispute, they will jointly appoint a mutually acceptable neutral person not affiliated with either of the parties (the “Neutral”), seeking assistance in such regard from an accredited arbitrator if they have been unable to agree upon such appointment within forty (40) days from the initial meeting. The fees of, and authorized costs incurred by, the Neutral shall be shared equally by the parties.
(c) In consultation with the Neutral, the parties will select or devise an alleviation dispute resolution procedure by which they will attempt to resolve the dispute and a time and place for the arbitration to be held, with the Neutral making the decision as to the procedure, and/or place and time if the parties have been unable to agree on any of such matters within twenty (20) days after initial consultation with the Neutral. In any case, the arbitration process shall be held not later than sixty (60) days after selection of the Neutral.
(d) The parties agree to participate in good faith in the arbitration process to its conclusion, If the parties are not successful in resolving the dispute through the arbitrator, then either party may pursue other available remedies upon seven (7) days written notice to the other party specifying its intended course of action.
(e) The prevailing party in any action or arbitration proceeding brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and legal fees expended in connection with such action or proceeding from the other party.
28. Entire Agreement. This Agreement, and Exhibits hereto (if any), represents the entire agreement of the parties relating to the relationship of the parties and the Services, and any amendment or modification hereof shall be in writing and duly executed by the parties in the same manner as this Agreement in order to be effective. The provisions of this Agreement are severable and if anyone or more such provisions are determined to be invalid or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction the remaining provisions or portions hereof shall nevertheless remain binding and enforceable by and between the parties.
29. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without regard to the conflicts of law principles thereof.
30. No Waiver. No waiver of any right or remedy on any occasion by either pidiarty shall be deemed to be a waiver of such right or remedy on any other occasion. No failure by a party to enforce a right or remedy shall be deemed to be a waiver of such right or remedy.
31. Headings. The headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
32. Restrictions Reasonable. The parties agree that all of the restrictions contained herein are reasonable and valid and all defences to the strict enforcement thereof by illuma are hereby waived by Reseller.
33. Damages and Injunctive Relief; Legal Costs. Reseller agrees that the remedy at law for any breach by it of the provisions hereof may be inadequate and that, in the event of such breach, illuma shall be entitled to make an application to the appropriate court granting illuma temporary and/or permanent injunctive relieve against Reseller, without the necessity of proving actual damage to illuma. In each case where illuma obtains an order for damages and/or injunctive relief, illuma shall be reimbursed its costs for obtaining same (including without limitation, legal counsel fees).
34. Independent Legal Advice. Each party hereby represents and warrants to the other party and acknowledges and agrees that such party has had the opportunity to seek and was not prevented nor discouraged by the other party from seeking independent legal advice prior to the execution and delivery of this agreement and that, in the event that such party did not avail itself of that opportunity prior to signing this agreement, such party did so voluntarily without any undue pressure and agrees that a failure to obtain independent legal advice shall not be used by as a defence to the enforcement of obligations under this agreement.
35. Document Preparation. This Agreement shall be considered for all purposes as prepared through the joint efforts of the parties and shall not be construed against one party or the other as a result of the manner in which this Agreement was negotiated, prepared, drafted or executed.
36. Currency. Any references to monetary amounts herein are in the currency of the country in which the Reseller’s address is located unless specified in the Reseller agreement
37. Minimum Order Quantities. There are no minimum order quantities.
38. Payment/Freight Terms. N30D OAC, PPD $7,500 CAD unless other specified in the contract.
39. Counterparts. This Agreement may be executed in two or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both the parties have duly executed or caused to be duly executed a counterpart of this Agreement.
40. No Waiver. The failure by either party to exercise a right or remedy, or the acceptance by either party of a partial or delinquent payment or other partial or delinquent performance, shall not operate as a waiver of any of such party’s rights or the other party’s obligations under the Agreement and shall not constitute a waiver of such party’s right to declare an immediate or a subsequent default.
41. Severability. If one or more of the provisions of this Agreement shall be found by the court with jurisdiction to be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any of the remaining provisions of this Agreement. The parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision that achieves to the greatest extent possible the economic objectives, allocation of responsibility, or limitation of warranties and damages of the illegal, invalid or unenforceable provision.
42. Force Majeure. Neither party shall be liable for delays or failures in performance arising out of or resulting from causes beyond its control, including, but not limited to: acts of God, acts of the public enemy, natural disasters, fire, flood, epidemics, quarantine restrictions, strikes, freight embargoes, severe weather, war, or acts of terrorism (“Force Majeure Event”). In the event of any such delay of performance by either party: (i) the other party shall continue to honour its obligations hereunder that existed as of the time of the delay, (ii) the affected party shall not be liable for any delay or failure of its performance that results from, and occurs during the period of such delay, and (iii) the other party shall thereafter honour its obligations hereunder if and when the affected party resumes performance.
43. Time of the Essence. Time shall be of the essence of this Agreement in all respects.
[end of Standard Terms and Conditions]