STANDARD TERMS AND CONDITIONS OF RESALE

All sales by Otter Products, LLC (“Otter”) on or through www.otterboxbusiness.com (the “Website”) are subject to the following terms and conditions of resale. “Products” refers to any one or more products sold by Otter, and “Customer” refers to the person or entity that is purchasing Products from Otter on the Website.

1. Agreement to Purchase and Sell the Products. All sales of Products and any provision of services by Otter are subject to and governed by acceptance of these standard terms and conditions of resale, as they may be amended from time to time by Otter (this “Agreement”), unless a Distribution Agreement, Sales Agreement, or similar signed Agreement exists between Otter and Customer, in which case the terms of that agreement take precedence over any similar terms contained in this Agreement and are incorporated into this Agreement. By placing a purchase order, Customer makes an offer to purchase Products under the terms and conditions of this Agreement and on no other terms. Any variations made to the terms and conditions of this Agreement by Customer while completing the customer onboarding process, or in any purchase order, including, without limitation, any of Customer’s general terms and conditions contained in its standard purchase order or other document issued by Customer, are void and have no effect.
2. Marketing and Reselling Products. Customer agrees that its purchase of Products is for the purpose of retail sales to End Users in an agreed territory, unless it is authorized as an authorized distributor of Products in writing. An “End User” is the individual final person or entity that has acquired a Product for its own internal or personal use and not for resale, remarketing, or distribution. Customer must not sell to anyone a quantity of the Products greater than that generally purchased by an End User. Customer must not sell or transfer any of the Products to any person or entity that Customer knows or has reason to know intends to resell the Products without the prior written consent of Otter. Customer must implement reasonable and appropriate procedures and security measures, which Otter may periodically review, to prevent and detect diversion of Products. Customer must not sell, ship, or invoice Products outside of the United States of America or Canada without the prior written consent of Otter. Customer must sell the Products solely in accordance with the terms of this Agreement. Otherwise, the Products may not be eligible for certain services and benefits, including, wherever permitted by law, coverage under Otter’s limited Product warranties.
3. Sales Practices. Customer must, in good faith: (a) market, advertise, promote, and resell the Products consistent with good business practice, in each case using its commercially reasonable efforts to maximize the sales volume; (b) observe all reasonable directions and instructions given to it by Otter in relation to the marketing, advertisement, and promotion of the Products, including Otter’s brand guidelines or sales, marketing, and merchandising policies as Otter may provide from time to time; (c) only resell or offer to resell the Products that Customer currently has in inventory or that have been ordered from Otter and which purchase order has been accepted by Otter as available for delivery to Customer, unless Customer has received prior written authorization from Otter; (d) only resell any accessories sold, bundled, or packaged with any Product on those terms and conditions as Otter may, from time to time, require, and not bundle other products with the Products without the separate written consent of Otter; (e) if applicable, prominently display a representative line of the Products and printed marketing materials at each of its retail locations or outlets; and (f) upon request by Otter, provide Otter with a current and accurate list of all of its retail selling locations or outlets.
4. Online Sales. Customer may not market or offer the Products for sale on or through any publicly accessible website, including, without limitation, any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of Otter, which is granted solely through execution by Otter and Customer of the Otter Products, LLC Authorized Online Seller Addendum. Execution by Otter and Customer of the Otter Products, LLC Authorized Online Seller Addendum constitutes the only means of providing consent to Customer to sell the Products online on publicly accessible websites. No Otter employee or agent can authorize online sales through oral statements, other written agreement, or by any other means. The terms of this Agreement supersede any prior agreement between Otter and Customer regarding the sale of Products on publicly accessible websites.
5. Availability/Changes in Products. Otter may, in its sole discretion, and in each case without obligation to modify or change any Products previously delivered, or to supply new Products meeting earlier specifications: (a) remove or add Products to its price list; and (b) without notice to Customer, make changes to any Products or parts or accessories of any Products.
6. Prices, Taxes, and Payment. Customer will purchase the Products from Otter at the prices indicated on the Website, or as specifically agreed by the parties in writing. Otter reserves the right to change the prices and specifications for its Products at any time without notice. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. In the event Otter is required to prepay any tax or fee, Customer must promptly reimburse Otter. Customers with approved credit must pay all invoiced amounts due to Otter net thirty (30) calendar days from the date of Otter’s invoice and without any right of set-off. In the event Customer’s credit is not approved by Otter, Customer must pre-pay for each purchase of Products. Customer must make all payments under this Agreement by electronic payment of immediately available funds and in U.S. dollars, or on other terms as Otter may provide from time to time. Customer will pay interest on all late payments at the lesser of the rate of one and one-half percent (50%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer must reimburse Otter for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Customer may not, and acknowledges that it will have no right, under this Agreement or otherwise to withhold, offset, recoup, or debit any amounts owed (or to become due and owing) to Otter against any other amount owed (or to become due and owing) to it by Otter for any reason. Otter reserves the right to refuse to sell to Customer until overdue accounts are paid in full.
7. Modification or Cancellation Prior to Shipment. Otter will use commercially reasonable efforts to accommodate Customer’s requests that a purchase order be modified or cancelled prior to shipment, provided that if Otter approves such modification or cancellation, then Customer will be liable to Otter for all costs incurred by Otter as a result of the cancellation or modification, including, but not limited to, cancellation costs to suppliers and unreimbursed advances on Products, if any, together with any specifically identifiable incidental and consequential expenses. Notwithstanding the previous sentence, Otter reserves the right, in its sole discretion, to accept or reject Customer’s request to modify or cancel a purchase prior to shipment.
8. Shipment and Delivery. Unless expressly agreed to by Otter in writing, Otter will select the method of shipment and the common carrier for all Products shipped under this Agreement. Customer will pay all shipping and freight costs under this Agreement. Otter will make every effort to ship the Products under this Agreement in accordance with the requested delivery date, provided that Otter accepts no liability for any losses, or for general, incidental, special, or consequential damages arising out of delays in delivery. Customer must promptly reimburse Otter for any shipping or insurance costs Otter pays on Customer’s behalf.
9. Risk and Title of Shipments. Title and risk of loss to all Products shipped under any purchase order passes to Customer on Otter’s delivery of the Products to the common carrier at its shipping facility. Customer grants Otter a security interest in the Products and will keep the Products properly stored, insured, and identifiable, as subject to Otter’s lien until full payment is made by Customer for the Products. Otter reserves the right to enter Customer’s premises to repossess Products for which payment is overdue. Notwithstanding the foregoing and subject to the terms and conditions of this Agreement, Customer may sell the Products and pass good title to the Product to any unaffiliated third party, provided that such right will automatically cease if Customer becomes insolvent or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed against Customer, if any trustee or receiver is appointed for assets of Customer, or if Customer makes an assignment for the benefit of creditors.
10. Inspection. Customer must inspect the Products delivered under any purchase order immediately upon receipt. Customer will be deemed to have accepted the Products unless Customer provides Otter with written notice of rejection within fourteen (14) days following Customer’s receipt of the Products. Notwithstanding the foregoing, Customer must notify Otter at OtterBoxARP@otterproducts.com promptly of any damage or defect to the Products or their packaging, whenever discovered. Customer must not sell damaged or defective Products.
11. Product Storage and Handling. Customer must exercise due care in storing and handling the Products and must fully comply with any and all instructions provided by Otter regarding any aspect of the Products, including, but not limited to, storage, handling, shipping, and disposal.
12. Product Packaging and Display. Customer must sell Products in their original packaging. Relabeling, repackaging, and other alterations to Products or their packaging are not permitted without Otter’s separate written consent. Tampering with, defacing, or otherwise altering any serial number, UPC code, or other identifying information on Products or their packaging is prohibited. Customer must not remove, translate, or modify the contents of any label or literature on or accompanying the Products. Customer must not advertise, market, display, or demonstrate non-Otter products together with the Products in a manner that would create the impression that the non-Otter products are made by, endorsed by, or associated with Otter. Further, Customer agrees not to represent or advertise any product as “new” that has been returned or repackaged.
13. Customer Service. Customer and its sales personnel must be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable warranty, guarantee, or return policy. Customer must be available to respond to customer questions and concerns both before and after sale of the Products and will use commercially reasonable efforts to respond to customer inquiries promptly. Customer and Customer’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Otter. Customer will cooperate fully with Otter in any investigation or evaluation of such matters.
14. Consumer Safety and Recalls. Customer shall cooperate with Otter with respect to any Product recall or other consumer safety information dissemination efforts. Should Customer learn of any complaint or adverse claim about any Product or its use, Customer shall promptly report such information to Otter at legal@otterproducts.com.
15. Product Tracking. Upon request by Otter, Customer will cooperate with Otter’s serialization scanning policy and other product tracking systems as may be implemented from time to time, including obtaining the capability to scan Products at the retail unit, inner carton and master carton level.
16. Intellectual Property Rights. Otter grants Customer a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable license to use and display the commercial or trade names, trademarks, service marks, logos, brand names, designs, or other identification of Otter’s brand(s) and Otter’s Products (collectively, “Otter Branding”), solely as provided by Otter on the Products, Product packaging, and Otter provided marketing materials, and only in accordance with the terms and conditions of this Agreement. Otter grants no other right or license to Customer to any Otter Branding or to Otter’s: (a) patents; (b) trademarks; (c) internet domain names, web addresses, web pages, and URLs; (d) original works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights, copyrightable works, and other specifications and documentation; (d) trade secrets; and (e) any other intangible property in which Otter holds proprietary rights, title, interests, or protections, and including all registrations and applications for, priority rights, and renewals or extensions of, these rights or forms of protection and the goodwill connected with the use of, and symbolized by any of the foregoing (collectively with the Otter Branding, Otter’s “Intellectual Property”), whether by implication, estoppel, or otherwise. Customer acknowledges that Otter owns all right, title, and interest in, to, and under its Intellectual Property, and that Customer will not acquire any proprietary rights in Otter’s Intellectual Property. The limited right and license granted to Customer under this Agreement may not be assigned, transferred, or sublicensed in any way, including by operation of law. Any use by Customer of any of Otter’s Intellectual Property and all goodwill associated with the use will inure to the benefit of Otter. Customer will promptly discontinue the display or use of any Otter Branding or change the manner in which Otter Branding is displayed or used with regard to the Products when requested by Otter.
17. Limited Product Warranty. Otter’s limited product warranties, as in effect at the time the Product is sold to an End User, apply to Products purchased by Customer under this Agreement. The limited product warranty does not cover defects or damage to a Product that is caused by Customer or any third party. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICLAR PURPOSE.
18. Prohibited Acts. Customer must not: (a) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments actually or apparently on behalf of Otter or to any End User regarding the Products that are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Otter to Customer; (b) engage in any unfair, competitive, misleading, or deceptive practices respecting Otter, Otter’s Intellectual Property, or the Products, including any Product disparagement or “bait-and-switch” practices; (c) sell or offer to sell any of the Products or other Otter-branded Products, other than the Products purchased by Customer from Otter or from a distributor authorized by Otter in writing to sell the same to Customer; or (d) promote, market, advertise, sell, or offer to sell Products using promotional information and material, unless the promotional information or material was provided or expressly approved by Otter in each. Customer represents that it will not knowingly export, either directly or indirectly, any Product or service to any country for which government approval is required, without prior written approval by Otter and the office of Export Administration of the U.S. Department of Commerce or other applicable U.S. government agency.
19. Compliance with Laws. Customer must comply with all laws applicable to: (a) this Agreement; (b) Customer’s performance of its obligations under this Agreement; (c) and Customer’s advertising, handling, use or sale of the Products. Customer must not engage in any activity or transaction involving the Products, by way of shipment, use, or otherwise, that materially violates any applicable law. Customer is responsible for obtaining any necessary authorizations, licenses, and permits necessary, and for any and all customs duties, clearance charges, taxes, brokers’ fees, and other amounts payable in connection with any importation of the Products. Notwithstanding any other provision of this Agreement, Otter is not required to honor any purchase order if Customer’s performance will or is likely to result in a breach of any law.
20. Confidentiality. “Confidential Information” as used in this Agreement means any and all non-public, confidential, or proprietary information of each of Otter and Customer, including but not limited to, information about their respective business affairs, goods, services, materials comprising or relating to intellectual property rights, third-party confidential information, documents, data, forecasts, customer lists, pricing, discounts or rebates, other information of commercial value, and the terms of this Agreement, all of the foregoing whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement. Otter and Customer and each of their respective employees and representatives must: (a) protect and safeguard the confidentiality of the other’s Confidential Information with at least the same degree of care as it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; and (b) not use the other’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, Otter or Customer may disclose Confidential Information if and to the extent that the disclosure is required by applicable law or court order, provided that the disclosing party: (i) uses reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment; and (ii) provides the other party a reasonable opportunity to review, if permitted, the disclosure before it is made and to interpose its own objection to the disclosure.
21. Indemnification. Customer agrees to indemnify, defend, and hold harmless, Otter and its parent, officers, directors, partners, members, managers, employees, agents, affiliates, representatives, successors, and assigns (collectively, “Otter Indemnified Parties”) from and against any and all losses, damages, liabilities, fines, costs and expenses (including reasonable attorneys’ fees), or other expenses of any kind that arise out of or relate to any third-party claim, suit, action, or proceeding relating to any actual or alleged: (a) material breach of any representation, warranty, covenant, or obligation under this Agreement by Customer (including Customer’s employees and other personnel), including, without limitation, the sale of Products to Customer’s customers; and (b) infringement, dilution, or other violation due to Customer’s use of any of intellectual property rights of any third party. Otter will have the right to control the defense of any legal proceeding, and Customer may not enter into any settlement without Otter Indemnified Parties’ prior written consent.
22. Limitation of Liability. In no event will Otter (including Otter Indemnified Parties) be liable for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, or diminution in value, arising out of, or relating to, or in connection with, any breach of this Agreement, regardless of: (a) whether such damages were foreseeable; (b) whether or not Otter Indemnified Parties were advised of the possibility of such damages; (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based; and (d) the failure of any agreed or other remedy of its essential purpose. In no event will Otter Indemnified Parties aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid by Customer to Otter under this agreement for the Products sold in the three (3) months prior to the event or circumstance giving rise to the liability.
23. Insurance. Customer must, at all times, at its own expense, maintain and carry adequate insurance against claims to persons, damages to property, and its performance and indemnification obligations that may arise from, or in connection with, this Agreement.
24. Force Majeure. Otter’s performance will be excused in the event of acts or circumstances beyond Otter’s control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, strikes, lock-outs, or other labor disputes, accidents, restraints or delays affecting common carriers, or inability or delay in obtaining supplies of adequate or suitable materials.
25. Independent Contractor. Nothing in this Agreement will be construed to create a joint venture or partnership, franchise, or business opportunity between Customer and Otter, or an employee/employer or agency relationship. Unless otherwise expressly set forth in this Agreement, neither party has any express or implied right or authority to assume or create any obligations on behalf of, or in the name of the other party, or to bind the other party to any contract, agreement, or undertaking with any third party.
26. Assignment. Customer may not assign its rights or delegate its obligations under this Agreement without the written consent of Otter. Otter may assign its rights and delegate its performance under this Agreement without Customer’s consent. Any purported assignment of rights or delegation of performance in violation of this Section 27 is void.
27. Governing Law. The laws of Colorado, without giving effect to its conflicts of law principles, govern all matters arising under and relating to this Agreement. Any claim, controversy, or proceeding arising out of or relating to this Agreement must be instituted in the United States federal court located in Denver, Colorado or the state courts located in Larimer County, Colorado, and each party irrevocably submits to the exclusive jurisdiction of those courts.
28. Waiver of Jury Trial. Otter and Customer knowingly, voluntarily, and intentionally, and with the advice of legal counsel, waive the right to a trial by jury in any action arising out of or relating to the Agreement and the transactions it contemplates. This waiver applies to any action, whether in contract, tort, or otherwise.
29. MAP Policies. Otter has unilateral minimum advertised price policies (“MAP Policies”) which apply to the sale of Products to End Users in the United States. This Section 30 is intended to inform Customer of the MAP Policies. It does not constitute consideration for this Agreement, and does not separately constitute an agreement between Customer and Otter regarding the price at which Products will be advertised or sold. Otter does not seek, nor will it accept, from Customer or any other party any assurance of compliance with the MAP Policies. Customer is free to determine the prices at which it will advertise and sell the Products.
30. Termination. If Customer breaches any provisions of the Agreement, Otter reserves the right to terminate the Agreement immediately in addition to all other available remedies. Upon termination of the Agreement, Customer must immediately cease: (a) selling the Products; (b) acting in any manner that may reasonably give the impression that Customer has any affiliation whatsoever with Otter; and (c) using all Intellectual Property.
31. General Provisions. Notwithstanding anything to the contrary in this Agreement, this Agreement, together with any other documents incorporated by reference, constitutes the final, exclusive agreement between the parties with respect to its subject matter. All earlier and contemporaneous communications, negotiations, understandings, and agreements between the parties on the matters contained in this Agreement, whether written or oral, are superseded by this Agreement. This Agreement may be updated, amended, or modified by Otter in its sole discretion at any time with notice to Customer. Unless otherwise specified, the updates, amendments, or modifications will take effect immediately and Customer’s continued use, advertising, offering for sale, or sale of the Products, use of the Intellectual Property, or use of any other information or materials provided by Otter to Customer following notice of the updates, amendments, or modifications, will be deemed Customer’s acceptance of the amendments. The waiver or failure of Otter to enforce any right provided under this Agreement will not constitute a subsequent or continuing waiver of that right or of any other right under this Agreement. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will be modified, amended, or limited only to the extent necessary to render it valid and enforceable. The headings used in this Agreement have no legal effect. Otter reserves the right to audit and monitor Customer’s activities for compliance with this Agreement, including, without limitation, inspection of Customer’s facilities and records concerning the Products. Customer will cooperate fully in any such investigation.

Last updated: March 1, 2020