These Wholesale Purchase Terms and Conditions, together with the applicable purchase order(s) (collectively, the “Agreement”) are by and between The Flex Company, a Delaware corporation (“Flex”), with principal offices at 318 Lincoln Boulevard, Suite 204, Venice, CA 90291 and the purchaser identified in the applicable purchase order (and on whose behalf this Agreement is signed) (“You” or “you”). The Terms and Conditions that apply to your purchase depends on whether you are a Reseller or an Eligible Non-Profit (both as defined below), so please review all terms carefully before you execute this Agreement.

If you are a Buyer (as defined below), then the following terms and conditions in this Article I apply to You:

1. DEFINITIONS. For the purposes of this Agreement, the following definitions shall apply:

1.1 “Customers” shall mean a person or entity that purchases the Product from Buyer solely for their own internal uses and not with the intent of further distributing or reselling the Product.
1.2 “Eligible Non-Profit” shall mean a 501(c) non-profit, educational or research institution that can provide a tax-exempt certificate that is accepted by Flex in its sole and exclusive discretion as eligible to purchase Products hereunder.
1.3 “Reseller” shall mean a reseller that is accepted by Flex in its sole and exclusive discretion as eligible to purchase and resell Products hereunder.
1.4 “Buyer” shall mean both an Eligible Non-Profit and an Eligible Reseller.
1.5 “End Users” shall mean a person or entity that either receives the Product without charge solely for their own internal uses or research purposes, and not with the intent of further distributing or reselling the Product.
1.6 “Products” shall mean a list of specific Flex products that Flex makes available to Buyer at prices determined solely by Flex, following acceptance of this Agreement. Flex makes Products available for wholesale purchase in its sole and exclusive discretion, and may add, delete, change, or modify Products and pricing available to Buyer at any time.

2. ORDERING PROCESS.

2.1 Terms to Govern. This Agreement shall govern all orders for Product by Buyer and sales of Product by Flex to Buyer. Any different, conflicting or additional terms (other than terms as to quantities and proposed delivery dates) in any purchase order or other writing from Buyer or in any order acknowledgment or other writing from Flex shall be of no force or effect unless they shall constitute a modification or amendment of this Agreement duly made in accordance with Article I, Section 13.
2.2 Purchase Orders. Buyer must order Products through the placement of purchase orders via Flex’s Shopify portal.
2.3 Payment. Buyers must pay in full and in advance for all orders through Flex’s Shopify portal, unless otherwise agreed to in writing by the parties.
2.4 Delivery. Products will not be shipped to a P.O. box or residential address. Unless otherwise agreed to by the parties, products will be shipped via Flex's customary method of shipment on a freight prepaid and FOB Destination basis at Buyer’s sole expense. Buyer will inspect and record any loss or damage to Products upon receipt, and notify Flex within five (5) business days after receipt.
2.5 Late Charges. If Buyer fails to pay the price or any other payment due to Flex promptly and when due, Flex may recover, in addition to the price or payment, interest thereon at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate of interest allowable under applicable law.

3. BUYER RESPONSIBILITIES.

3.1 End User Support. Buyer shall direct all End Users with inquiries, concerns, or complaints directly to Flex using quality@flexfits.com.
3.2 No Repackaging. All Products are regulated Class II medical devices and must be distributed in their individual packaged units with required instructions for use and may not be opened, unsealed, or distributed separately. Buyer shall not repackage or relabel the Products and shall only resell the Products in the same packaging as originally received from Flex, except for the addition of information required by Applicable Law.
3.3 No Modifications. Buyer will not: (i) make claims about the Products except as expressly provided in the Product documentation and applicable regulatory labeling; (ii) modify or expand any warranties given by Flex to Reseller or Flex’s other Customers or assume or create any obligations on Flex's behalf; or (iii) remove, alter, cover or obscure any copyright notice, trademark or other proprietary rights notice placed by Flex on the Products.
3.4 No Resales. Except for the limited right of resale granted to authorized Resellers under Article III, Section 1 below, Buyer may not sell or transfer Flex Products individually, in bulk, or commingled with any other products, to any B2B accounts, wholesalers, or freight forwarders/drop shippers for other retailers, bulk purchasers, or other persons or entities in the business of reselling or distributing such products, whether for profit or not, or any other entity that Buyer knows or should know has intent to resell the Products. Selling on third-party sites (including but not limited to eBay, Amazon, Alibaba, Wal-Mart, Sears, and JET), drop-ship accounts (including but not limited to Buy.com, Newegg.com, and Overstock.com), classified sites (including but not limited to Craigslist.com and Facebook Marketplace), through direct messages on forums, or through Social Media Accounts such as Facebook, Twitter, or Instagram, is also strictly prohibited. In the event that Buyer violates this Article I, Section 3.4, Buyer shall be liable to Flex for liquidated damages in an amount equal to the current retail purchase price of the Flex Products resold multiplied by the number of Flex Products purchased by Buyer pursuant to this Agreement. The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that Flex’s harm caused by Buyer’s breach of this Article I, Section 3.4 would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from such breach by Buyer. Buyer’s payment of the Liquidated Damages is the Buyer’s sole liability and entire obligation and Flex’s exclusive remedy for any breach by Buyer of this Article I, Section 3.4.
3.5 Applicable Law. Buyer represents and warrants that it will comply with all applicable laws applicable and regulations relating to the use and distribution of the Products in the U.S. (“Applicable Law”).

4. WARRANTIES

4.1 Limited Product Warranty. To the extent permitted under Applicable Law, Flex warrants to Buyer (and not to any End Users or Customers) that the Products will be free from defects in workmanship and materials upon shipment. Buyer must notify Flex within seven (7) days of receipt of Product defects or conditions that could reasonably have been identified by visual inspection following delivery. Upon Flex’s confirmation of defects in workmanship or materials, Flex will, in its sole discretion (and as Buyer’s sole and exclusive remedy), either replace the Product or credit Buyer’s account for the Product purchase price paid therefor.
4.2 Warranty Limitations. To the extent permitted under Applicable Law, the warranty provided in Section 4.1 shall not apply to Products that have been modified or altered in any manner by anyone other than Flex or to defects caused (i) through no fault of Flex during shipment to or from Buyer; (ii) by the use or operation other than that intended or recommended by Flex in writing; (iii) by accident, negligence, misuse, other than normal use; or (iv) by storage, usage or handling by Buyer in any manner inconsistent with the Product’s labeling or accompanying instructions. Flex shall not be liable for misbranding with respect to any Product labeling or package insert text provided or used by Buyer, or any translation thereof and Flex shall not be liable for any adulteration or Product defects due to handling or packaging of the Products by Buyer, its personnel, or its agents.
4.3 No Implied Warranties. THE WARRANTIES GIVEN IN THIS AGREEMENT ARE THE ONLY WARRANTIES GIVEN BY FLEX WITH RESPECT TO THE PRODUCTS OR THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. BUYER’S EXCLUSIVE REMEDIES, AND FLEX’S SOLE LIABILITY, FOR ANY NONCONFORMITY OR DEFECT IN ANY PRODUCT SHALL BE THOSE EXPRESSED HEREIN.
4.4 No Additional Warranties by Buyer. Any warranty made by Flex solely to and for an End User’s benefit will be included in a written statement with the Product or set forth on Flex’s website and may not be modified by Buyer. Buyer shall make no representation or warranty concerning the quality, performance, or other characteristics of the Products. Any warranty made by Buyer to its End Users with respect to the Products shall not obligate Flex in any way and Buyer shall retain full responsibility for the performance of any warranties extended to the End Users.

5. CONFIDENTIALITY. This Agreement, any and all pricing and discounts contained herein or subsequently provided to Buyer, and any related proposals or correspondence between the parties shall be considered confidential information. Buyer agrees to hold such information in strict confidence and not to disclose it to any third parties. Buyer agrees to take all reasonable measures to protect the confidentiality of and avoid disclosure or use of such confidential information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that it utilizes to protect its own confidential information of a similar nature.

6. INTELLECTUAL PROPERTY. Buyer acknowledges that the Products and any accompanying documentation and/or promotional or training materials are covered by patent, copyright, trademark, and other intellectual property rights owned or licensed by Flex. Other than as expressly set forth in this Agreement, no license or other rights in such intellectual property are granted to the Buyer, and all such rights are hereby expressly reserved by Flex. Without limitation of the foregoing, Buyer shall not (i) modify any Product or documentation Flex provides to Buyer without the prior written approval of Flex or (ii) reverse engineer or disassemble any Product, or encourage or assist any third party in doing so.

7. REGULATORY AND QUALITY ASSURANCE.

7.1 Product Complaints. In the event that Buyer learns of any alleged or actual adverse events, product defects, or injury to its End Users, Buyer shall notify Flex Quality within forty-eight (48) hours of acquiring such information by emailing quality@flexfits.com. Buyer shall make a good faith effort in assisting Flex with obtaining information necessary to investigate the complaint.
7.2 Recalls. Buyer shall comply promptly with any recalls or field alerts of the Products issued by Flex or any applicable regulatory authority and make a good faith effort to notify their End Users.

8. INDEMNIFICATION AND LIMITATION OF LIABILITY.

8. 1 Flex Product Indemnification. Flex shall indemnify, defend, and hold harmless Buyer and its officers, directors, agents, employees, affiliates, representatives, successors, and assigns from and against all third party claims, actions and proceedings, and liabilities, damages, settlement amounts, costs and expenses (including, without limitation, reasonable attorneys’ fees) to the extent solely based on any design or manufacturing defect in the Product.

8.2 Mutual Indemnification. Each party agrees to indemnify, defend, and hold harmless the other party and its officers, directors, agents, employees, affiliates, representatives, successors, and assigns from and against all third party claims, actions and proceedings, and liabilities, damages, settlement amounts, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with (a) the indemnifying party’s breach of this Agreement; (b) the indemnifying party’s gross negligence or willful misconduct; and (c) any violation of Applicable Law by the indemnifying party.  

8.3 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, PROFITS, BUSINESS OR GOODWILL, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL FLEX’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FLEX’S PERFORMANCE OR ASSERTED FAILURE TO PERFORM HEREUNDER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY BUYER TO FLEX IN THE PRIOR TWELVE (12) MONTHS HEREUNDER. This paragraph shall not apply for damages for death or bodily injury caused by a party’s negligence to the extent that the laws of any applicable jurisdiction do not allow limitations or exclusions of liability with respect to death or bodily injury.

9. BUYER NOT FLEX’S AGENT. Buyer is not the agent or legal representative of Flex for any purpose whatsoever, and Buyer shall not hold itself out as an agent of Flex. This Agreement creates no relationship of joint venturers, partners, associates, employment or principal and agent between the parties, and both parties are acting as independent contractors. Buyer is not granted herein any right or authority to, and shall not attempt to, assume or create any obligation or responsibility for or on behalf of Flex. Buyer and Flex shall bear all of their own expenses for their respective operations, including, without limitation, the compensation of their employees and the maintenance of their offices and other facilities and shall be solely responsible for their own employees and salesmen and for their acts and the things done by them.

10. NO EXPORT. FlexProducts are medical devices that are regulated by the FDA as well as similar agencies in countries outside the U.S. Accordingly, Buyer acknowledges and agrees that this Agreement does not authorize Buyer to sell Products outside the U.S.

11. TERM AND TERMINATION.

11.1 Term. This Agreement will become effective on the date Flex executes the Agreement and will continue for an initial period of one (1) year (the “Term”) and will thereafter renew for one-year terms unless terminated in accordance with this Section 11.2.

11.2 Termination. Either party may terminate this Agreement: 

(a) for any reason, with or without cause, on ninety (90) days prior written notice; or 

(b) Immediately upon written notice in the event the other party (i) breaches this Agreement and fails to remedy such breach within ten (10) days after written notice; (ii) becomes insolvent, makes a general assignment for the benefit of creditors, seeks or has appointed a receiver, or institutes or has instituted bankruptcy proceedings; (iii) makes any fraudulent misrepresentation material to this Agreement or the continuing conduct of business under this Agreement; or (iv) fails to pay to Flex any sum when due. 

11.3 Effect of Termination. After termination Flex may, at its option, cancel all of Buyer’s outstanding orders for Products. Buyer’s receipt of Products after termination or any notice of termination does not mean this Agreement has been renewed. Any credits due Buyer (except for correctly returned Products) expire upon termination. All payment obligations for fees due under this Agreement shall survive termination of this Agreement for any reason.

11.4 No Residual Rights. Buyer acknowledges that any goodwill generated through Buyer’s efforts shall belong to Flex and that Buyer will be fully compensated for any such goodwill by receiving the pricing discounts provided hereunder. Buyer acknowledges that upon the termination of this Agreement Buyer shall have no residual, surviving or continuing rights or claims, including claims to compensation, residuals, indemnity or goodwill compensation, nor for the recoupment of any expenses Buyer incurred as a result of this Agreement. Buyer acknowledges that these termination provisions are a specifically bargained part of this Agreement.

12. FORCE MAJEURE. In the event that the occurrence of any war and war measures (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, force majeure, flood, storm or other acts of God, acts of public authorities or courts, pandemics, epidemics, government orders and requirements, strikes, lockouts, fires, explosions, natural disasters, shortages of labor, fuel, raw materials or machinery or failures or delays of suppliers or carriers (each a “Force Majeure Event”) is likely to result in any failure or delay in the performance of such party’s (an “Affected Party”) obligations under this Agreement, the Affected Party shall promptly inform the other party (the “Non-Affected Party”) of the occurrence of such Force Majeure by email and confirm the same by written notice to the Non-Affected Party delivered by registered letter (return receipt requested) to the address of the Non-Affected Party first set forth above. The Affected Party shall, following the occurrence of any Force Majeure Event, thereafter undertake to use its best efforts to cure or remove the Force Majeure Event as promptly as possible and limit damages to the Non-Affected Party resulting from such Force Majeure Event as far as reasonably possible, provided, that, neither party shall be liable for any cost, expense, loss or other damages incurred by the other party by reason of any failure or delay in performance under this Agreement occasioned by the occurrence of a Force Majeure Event. Notwithstanding the foregoing, in no event shall the occurrence of a Force Majeure Event excuse the timely payment of monies owed pursuant to this Agreement.

13. MISCELLANEOUS. This Agreement shall be governed by, and construed and enforced in accordance with, and the relations of the parties shall be determined in accordance with, the substantive laws of the State of California as if fully performed within the State of California. Any action brought in connection with this Agreement shall be brought in the state or federal courts located in the State of California and the parties agree that they are subject to the exclusive personal jurisdiction of such courts. In the event that any provision of this Agreement shall be determined to be unenforceable by any court of competent jurisdiction by reason of its extending for too great a period of time or over too large a geographic area or over too great a range of activities, it shall be interpreted to extend over a maximum period of time, geographic area or range of activities as to which it may be enforceable. If any provision of this Agreement or any part thereof shall be found to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, such provision shall to such extent be deemed null and void and severed from this Agreement, and the remainder of the Agreement shall remain in full force and effect. Buyer may not assign any of Buyer’s rights or delegate any of Buyer’s responsibilities under this Agreement without the written consent of Flex, which consent may be withheld for any reason or no reason. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective legal representatives, successors and permitted assigns. Buyer and Flex must sign any modification of this Agreement for the modification to be effective. This Agreement, including any exhibits or appendices, is the entire agreement between Buyer and Flex, replacing any other oral or written agreements between Buyer and Flex about reselling the Products. Any notices about this Agreement should be sent by email to legal@flexfits.com; certified mail, return receipt requested; a recognized overnight courier service; or by personal delivery, and will be effective upon receipt. Flex may exercise its rights under this Agreement at any time, even if Flex has previously failed to exercise any right, or has failed to insist that Buyer comply with any of the terms of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument.  Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.

If you are an Eligible Non-Profit seeking to purchase certain Flex products on a wholesale basis, then the following additional terms and conditions in Article II apply to You:

1. SALE OF GOODS; NO RESALES.

1.1 Sale of Goods. Flex shall sell to Eligible Non-Profit and Eligible Non-Profit shall purchase from Flex the Products set forth in any purchase order issued hereunder at the prices specified determined by Flex. 

1.2 Limited Distribution for Non-Profit Institutions. Eligible Non-Profits who have submitted adequate substantiation to Flex to demonstrate that they are qualified Section 501(c)(3) institutions, may distribute the Products to students or other identified populations served by the institution only if the Products are provided at no charge and Eligible Non-Profit has notified Flex in writing in advance.

2. ORDERING, SHIPPING AND DELIVERY.

2.1 List of Available Products. From time to time, Flex will provide Eligible Non-Profit with written notice describing those specific Products available to Eligible Non-Profit, and may add or delete Products available to Eligible Non-Profit, and may change or modify Products upon prior written notice to Eligible Non-Profit. Flex may modify the specifications of any Product furnished under any order or contract, provided the modifications do not adversely affect the performance of the Product. Flex shall have the right, in its sole and absolute discretion to announce new products to which the terms and conditions of this Agreement do not apply. 

2.2 Pricing. The pricing of the available Products (less shipping) shall be provided to Eligible Non-Profit following acceptance of this Agreement, and may be changed by Flex, in its sole discretion, at any time upon sixty (60) days prior written notice to Eligible Non-Profit. 

2.3 Taxes and Charges. Eligible Non-Profit must provide a valid tax-exempt certificate to Flex prior to any purchase of Product. Eligible Non-Profit will, in any event, pay any and all taxes and charges, on or before their due dates. In the event Flex is required at any time to pay any such tax or charge, Eligible Non-Profit will reimburse Flex therefore promptly on demand.

3. No Sales or Resales. In addition to the resale restrictions set forth in Article I, Section 3.4 above, Eligible Non-Profit may not sell or resell the Products to End Users. 

4. TRADEMARK RESTRICTIONS. In no event may Eligible Non-Profit use or authorize any use of any of Flex’s Trademarks in any domain name whether registered, owned, or operated by or on behalf of Eligible Non-Profit. Eligible Non-Profit shall not challenge or assist others to challenge Flex’s Trademarks (except to the extent such restriction is expressly prohibited by applicable law) or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of Flex. Any violation of the foregoing shall be deemed a material breach of this Agreement that is incapable of cure, entitling Flex to terminate this Agreement immediately upon notice to Eligible Non-Profit. Eligible Non-Profit shall not alter or remove any of Flex’s Trademarks affixed to the Products by Flex or otherwise engage in any activity that would adversely affect the name, reputation, or goodwill of Flex or the Products. Except for the limited rights set forth in this Section 4, nothing contained in this Agreement shall grant or shall be deemed to grant to Eligible Non-Profit any right, license, title or interest in or to Flex’s Trademarks. 

5. NON-PROFIT WARRANTIES. Eligible Non-Profit warrants and represents that it: (a) is either (i) a non-profit institution purchasing the Products solely to either distribute the Products to students attending its educational institution or identified populations served by the institution free of charge; or (ii) it is a research institution purchasing the Products solely to conduct internal research; and (b) shall make no representation or warranty concerning the quality, performance, or other characteristics of the Products that it may distribute without charge. Any warranty made by Eligible Non-Profit to its End Users with respect to the Products shall not obligate Flex in any way and Eligible Non-Profit shall retain full responsibility for the performance of any warranties extended to the End User. Eligible Non-Profit warrants and represents that it will provide a valid tax-exempt certificate to Flex prior to any purchase of Product.

If you are a Reseller who wishes to purchase Flex products on a wholesale basis for resale, then the following terms and conditions of Article III also apply to You:

1. Limited Right to Resell. During the term of this Agreement, Reseller shall have the non-exclusive, non-transferable right to purchase certain Products made available by Flex in its sole and exclusive discretion, solely for resale to End Users in the United States. For the sake of clarity, nothing contained herein shall in any way restrict or otherwise be deemed to prohibit Flex from directly or indirectly, on its own or through third parties, from marketing, promoting, distributing or licensing any Products in or outside of the United States.

2. ORDERING, SHIPPING AND DELIVERY.
2.1. List of Available Products. Flex may modify the specifications of any Product furnished under any order or contract, provided the modifications do not adversely affect the performance of the Product. Flex shall have the right, in its sole and absolute discretion to announce new products to which the terms and conditions of this Agreement do not apply.
2.2 Pricing. The pricing of the Products shall be provided by Reseller following execution of this Agreement and may be changed by Flex, in its sole and exclusive discretion, at any time upon fifteen (15) days prior written notice to Reseller.
2.3. Taxes and Charges. Reseller must provide a valid Flex’s Resale Certificate of Exemption to Flex prior to any purchase of Product. Reseller will, in any event, pay all such taxes and charges, on or before their due dates. In the event Flex is required at any time to pay any such tax or charge, Reseller will reimburse Flex therefore promptly on demand.
2.4. Reseller’s Customers. Under no circumstances will any delivery be considered a consignment delivery, nor will payment be subject to any subsequent sale by Reseller. Reseller shall be solely responsible for invoicing its customers, collecting and paying sales taxes (if applicable), for customer credit, and for collection of payments for Product from its customers and shall bear all credit risk with respect to customer non-payment.


3. TRADEMARKS
3.1. Trademarks. During the Term of this Agreement, Reseller shall have the right to indicate to the public that it is an authorized Reseller of Flex’s products and to advertise within the U.S. the Products under the trademarks, marks, and trade names that Flex may adopt from time to time (“Flex’s Trademarks”). Flex’s Trademarks shall at all times remain the exclusive property of Flex and all use of Flex’s Trademarks shall inure to the exclusive benefit of Flex.
3.2. Trademark Restrictions. All representations of Flex’s Trademarks that Reseller intends to use shall be exact copies of those used by Flex or shall first be submitted to Flex for approval (which shall not be unreasonably withheld) of design, color and other details. Reseller shall not engage in any activity which would adversely affect the name, reputation or goodwill of Flex or the Products. In addition, Reseller shall fully comply with all reasonable guidelines, if any, communicated by Flex concerning the use of Flex’s Trademarks. In no event may Reseller use or authorize any use of any of Flex’s Trademarks in any domain name whether registered, owned, or operated by or on behalf of Reseller. Reseller shall not challenge or assist others to challenge Flex’s Trademarks (except to the extent such restriction is expressly prohibited by applicable law) or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of Flex. Any violation of the foregoing shall be deemed a material breach of this Agreement that is incapable of cure, entitling Flex to terminate this Agreement immediately upon notice to Reseller. Reseller shall not alter or remove any of Flex’s Trademarks affixed to the Products by Flex or otherwise engage in any activity that would adversely affect the name, reputation, or goodwill of Flex or the Products. Except for the limited rights set forth in this Article III, Section 3.2, nothing contained in this Agreement shall grant or shall be deemed to grant to Reseller any right, title or interest in or to Flex’s Trademarks. Upon termination of this Agreement, Reseller shall immediately cease to use any and all of Flex’s Trademarks.


4. RESELLER RESPONSIBILITIES.
4. 1. Selling.
a. Reseller will professionally promote, market and sell the Products, in accordance with any written guidelines which may be provided by Flex from time to time, through cooperation in advertising and marketing programs undertaken by Flex, and by developing and maintaining Reseller’s own advertising and marketing programs.
b. Reseller will market and sell the Products only through direct-to-consumer in store or online sales with End Users. Prohibited activities under this section include mail order marketing and selling Products through catalog or direct mail methods, selling product to other resellers.
c. On a quarterly basis or upon reasonable request by Flex, Reseller will provide Flex with (i) an inventory report, by Product and by location; (ii) a report of shipments by Product, indicating units shipped and amounts invoiced; and (iii) such other information as Flex may reasonably request to assist in Product marketing and planning.
d. If Reseller’s average monthly orders over a quarter exceed one (1) case of any given Product SKU, Reseller will provide Flex with a forecast of its expected orders for Products for a rolling 3-month period.
4.2. Authorized Reseller Policy. During the term of this Agreement, Reseller must adhere to Flex’s Authorized Reseller Policy, set forth below on Appendix A.
4.3. Minimum Advertised Pricing. Flex has unilaterally adopted a Minimum Advertised Pricing policy (hereinafter, the “MAP Policy”) that applies to all authorized Resellers of Flex Products in the U.S. to protect the integrity of its Products and Reseller network. Flex’s MAP Policy is set forth below on Appendix B. During the term of this Agreement, Reseller must adhere to the MAP Policy of Flex. In addition to strict adherence to Flex’s MAP Policy, online Resellers can only advertise price markdowns through a discount applied in the shopping cart during checkout. No price reductions or strikethroughs may be displayed or advertised in any other location.

We are pleased that you are part of The Flex Company’s (“Flex”) Authorized Reseller Network!

To qualify as and remain as a Flex Authorized Reseller (“Reseller”) you must adhere to this Authorized Reseller Policy at all times.

1. Disclose All Locations That Carry Flex product
Reseller must disclose all retail locations and websites that carry Flex products throughout the term of its relationship with Flex. Qualifying retail locations can only be one of the following: Reseller’s physical brick and mortar store(s), commerce-enabled website(s), or any temporary storefronts (events, trade shows, pop up stores, etc.). Any marketing or sales on third-party sites, including but not limited to Amazon, eBay, Sears Marketplace, JET, Google Shopping, Rakuten, Wal-Mart Marketplace, Ali-Baba, Ali-Express are strictly forbidden.

2. Flex Trademarks & Brand Policy
Reseller must comply with any Flex’s Trademark & Brand Policies provided by Flex, and represent itself as an Authorized Reseller in all online advertising and sales collateral. Setting up businesses, registering domain names, or using social media usernames that contain the Flex name or any of Flex trademarks (“Flex Marks”) set forth below is strictly prohibited:


1. Flex
2. Softcup
3. Softdisc

To ensure compliance with Flex’s Authorized Reseller Policy, Reseller must only use approved marketing materials for all Flex products which are provided by Flex.

4. Trademarks and Logos for Products, Names, Apps and Websites
Reseller must not use the Flex Marks in a way that implies partnership, sponsorship, affiliation or endorsement with Flex. Reseller must:
a. Avoid trademarks, company names, product or feature names, domain names, or social media handles that are confusingly similar to the Flex’s Marks.
b. Not alter the Flex Marks.
c. Not use, copy, alter or imitate Flex Marks, logos, trade dress, color scheme, website, products, packaging, icons, marketing materials or photographs.

5. Flex’s MAP POLICY
Reseller must review and understand Flex’s Minimum Advertised Price Policy (MAP), attached as Appendix 1. Flex does not, and never will, seek any agreement from an Authorized Reseller that sets minimum resale prices when such agreement is contrary to applicable state or federal law. Flex does not, and never will, seek any agreement from an Authorized Reseller that sets minimum resale prices. In accordance with applicable legal rules, we do advise Flex Resellers that in accordance with our internal, unilateral policy, Flex does not deal with Resellers that sell the Flex products at retail prices below the Suggested Retail Price (SRP) which portrays keystone pricing (or twice the published wholesale price). Where Resellers decide to market our Flex products in a manner that is inconsistent with this Policy, we may exercise our right not to make further sales to that account.

6. Sell to Retail Consumers Only
Reseller may not sell or transfer products in bulk to B2B accounts, wholesalers, or freight forwarders/drop shippers for other retailers, third-party websites (e.g., Amazon, eBay), bulk purchasers, or other resellers or any other entity that Reseller knows or should know has intent to resell the Products. Reseller may only sell to persons that are end users of the products.

7. Only Purchase Flex Products Directly from Flex
Reseller must not buy Flex products from other retailers, or from other sources not explicitly endorsed by Flex.

8. Only Sell Flex Products in Original Packaging
Reseller may not alter original Flex packaging in any way prior to reselling Flex Products. Removing Flex Products from packaging, altering or changing UPC codes, changing or removing expiration dates, altering trademarks, removal or altering of serial numbers, tracking codes, or any other identifying information and reselling Flex Products in any condition other than sold by Flex is strictly prohibited.

9. No Commingling Of Products
Reseller may not sell to websites like Amazon, Wal-Mart Marketplace or any other third-party seller or website or allow Flex products to be commingled with any other products, including Flex authorized products from other authorized Flex sellers.

10. No Bundling Flex Products without Obtaining Permission
Reseller must not re-SKU or bundle Flex products in its online assortments and data feeds without receiving prior written permission from Flex.

11. Bulk Sales Customer Confusion
Reseller will not advertise, market, display or demonstrate non-Flex products together with Flex products in a manner that would create the impression that Flex’s products are made by, endorsed by, or associated with another supplier.

12. Sell on Approved Retail Website(s) Only
Reseller must only take orders via publicly accessible, e-commerce enabled web pages hosted on approved websites owned and operated by Reseller. Selling on third-party sites (including but not limited to eBay, Amazon, Alibaba, Wal-Mart, Sears, and JET), drop-ship accounts (including but not limited to Buy.com, Newegg.com, and Overstock.com), classified sites (including but not limited to Craigslist.com and Facebook Marketplace), through direct messages on forums, or through Social Media Accounts such as Facebook, Twitter, or Instagram, is strictly prohibited.

13. Product Care, Quality Controls & Material Differences

a. Product Storage and Handling. Products delivered to and under the care of the Reseller shall be stored in a safe manner that protects the Flex products, and brand reputation by storing them in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional Flex storage guidelines that may be specified by the Flex from time to time.
b. Product Inspections. Reseller upon receipt of the Products shall inspect the Products received by the Flex for damage, defect, or other nonconformance (collectively, “Defects”). If the products are damaged or defective, Reseller must not offer the Products for sale. Reseller shall report the defect immediately to Flex.
c. Recall of Products. The Flex reserves the right to recall Products that are defective or a risk to the consumers safety. Reseller shall cooperate with any and all safety information dissemination programs, or Recall efforts of the Flex. Once a recall has been announced the Reseller must not offer the Product for sale.

Failure to comply with all of the terms in Flex’s Authorized Reseller Policy may result in the suspension or termination of your account.

As an industry-defining supplier of innovative and sustainable period care products made using body-safe ingredients, The Flex Company (“Flex”) is proud to provide an excellent customer experience through its network of retail partners (“Approved Resellers”). Flex Approved Resellers include any person or entity who or which obtains the products listed in Exhibit A (“Covered Products”) for resale to end-users by purchasing directly from Flex or an approved broker. Approved Resellers stand ready to provide the elevated support that our innovative products deserve and our customers expect, including but not limited to maintaining healthy in-stock levels and availability via approved in-store and .com channels. Flex understands that these services are costly, require an investment of resources, and take a substantial commitment of time. To ensure its Approved Resellers continue these efforts, support Flex’s brand value, retailer confidence, and consumer service and satisfaction Flex has unilaterally developed, adopted, and maintained a new Minimum Advertised Price Policy (“MAP Policy”) since 2020, which applies to Covered Products. By purchasing, otherwise acquiring, holding for sale, or selling to end-users Covered Products, each Approved Reseller by such action acknowledges receipt of this MAP Policy. 

Flex has determined that advertising, including online advertising, by Approved Resellers that promotes Covered Products primarily on the basis of price – and not product quality, service, or other factors – could be detrimental to the service and support efforts Flex expects from resellers, as well as Flex’s position as an industry leader in providing innovative and sustainable period care products. Such activities are likely to harm Flex’s reputation and competitiveness by allowing some resellers to (1) diminish Flex’s brand image and (2) take advantage of the service and support efforts of others, thereby discouraging such efforts over time. 

To encourage our Approved Resellers to invest the time and effort necessary to promote the Covered Products to the best of their abilities and to maintain the competitiveness and superior consumer perception of Flex’s quality and brand name, Flex continues to maintain the following MAP Policy: 

Flex, in its unilateral discretion, will not do business with any Approved Reseller as to Covered Products if that Approved Reseller intentionally advertises any Covered Product below its minimum advertised price. The Covered Products and their minimum advertised prices are listed on Exhibit A to this policy as indicated on the Flex MAP Price List, which may be amended from time to time at Flex’s unilateral discretion. 

This MAP Policy is not a restriction against selling at any particular price, and all Flex Approved Resellers remain free to establish the prices at which they sell Flex products, including the Covered Products. Flex is confident that this program will continue to strengthen its competitiveness and benefit all of its Approved Resellers. 

Additional definitions and guidelines related to this MAP Policy are as follows:

1. This policy will be enforced according to Flex’s sole, unilateral, and absolute discretion. This policy is not negotiable and no agreement to any term of this policy is sought or will be accepted. 

2. Flex reserves the right to take any action, including termination of its relationship, with respect to any Approved Reseller that violates this MAP Policy. 

a. A “First Violation” of this MAP Policy will result in a warning and 14 days to correct the advertised pricing. If the Approved Reseller fails to correct the advertised pricing or to comply with the MAP Policy, Flex may unilaterally suspend shipping of the products in violation and/or partially or completely terminate the Approved Reseller, without notice or further warning and at Flex’s complete discretion. 

b. Repeated violations of the MAP Policy may lead to the partial or complete termination of an Approved Reseller without notice or warning and at Flex’s complete and unilateral discretion. 

3. From time to time, Flex may suspend MAP in its sole discretion upon published notice to Approved Resellers for any purpose. Flex expressly reserves the right to advertise its own products directly to consumers at any price at any time in its sole discretion to assist with cash flow, inventory control, or any other company need. 

4. This policy applies to all advertising of Covered Products through any advertising medium, including but not limited to newspapers, magazines, direct mailings, catalogs, Weekly Ads, flyers, leave-behinds, television, radio, billboards, exterior store displays, the Internet or similar electronic media (including websites, social media, and mass emails) and any other media for public display. 

5. This MAP policy does not apply to any reduced price that an Approved Reseller wishes to place within a purchaser’s online shopping cart at the final stage of an online purchase, as long as the purchaser enters the final stage on his/her own without any reference on the website that a lower price will be found at the final stage of the purchase. Website features such as “click for price,” automated “bounce-back” pricing emails, pre-formatted email response forms, “contact us/email us for price” links that lead to automated or pre-formatted forms, automatic price display for any items placed in a customer’s shopping cart, and other similar features are considered to be communications initiated by the Approved Reseller (rather than by the customer) and constitute “advertising” under this MAP Policy. 

6. This MAP Policy applies to any activity that Flex determines, in its sole and absolute discretion, is designed or intended to circumvent the intent of this policy. 

7. Where a Covered Product is advertised or promoted as part of a bundle (or package) that includes other products (whether or not supplied by Flex), it shall be a violation of this MAP Policy to advertise the bundle (or package) at a price that: (a) is lower than the total of the minimum advertised price of the Covered Product and the MSRP(s) (or MAP(s), if applicable) of the other product(s); or (b) intended to or has the effect of violating the letter or spirit of this MAP Policy.

8. It shall not be a violation of this policy to advertise in general that the Approved Reseller has “the lowest prices,” or will match or beat its competitors’ prices (or to use similar phrases), so long as the Approved Reseller does not include any advertised price that is below the MAP for a Covered Product. 

9. It shall not be a violation of this policy to advertise that a customer may “call for price” or “email for price,” or to use similar language, specifically with respect to Covered Products, so long as no price is listed, including the retail price. Any use of “email for price” is subject to Section 4 above. 

10. In its discretion, Flex may offer a direct manufacturer’s rebate to customers or provide other approved promotions. In such events, it shall not be a violation of this MAP Policy to advertise the availability of the manufacturer’s rebate, provided that (a) the advertisement includes a MAP-compliant price, the rebate amount, and the net price after manufacturer’s rebate in the same type size and style; (b) an asterisk is placed next to the net price after manufacturer’s rebate; and (c) the “*After manufacturer’s rebate” appears in the same area of the advertisement as the advertised product. Similarly, it shall not be a violation of this MAP Policy for Approved Resellers to abide by the terms of approved promotions provided by Flex. If an Approved Reseller with multiple store locations violates this policy at any particular store location, then Flex will consider this to be a violation by the entire retail partner. 

11. No complaint from any Approved Reseller with respect to the advertising or pricing of any other Reseller is sought or will be considered. 

12. No Flex employee has any authority to negotiate or vary the terms of this policy, or to discuss it or any retail pricing issues with any Reseller. Questions regarding this policy should be submitted in writing to MAP@flexfits.com. Answers to some of the questions we anticipate our Approved Resellers may ask are attached as Exhibit B to this policy. 

13. The decision to implement and enforce this MAP Policy is solely the unilateral act of Flex. Flex is not seeking agreement from any Approved Reseller to adhere to the MAP Policy. Flex reserves the right to make its own independent decision regarding whether to continue to do business with a Reseller that violates this policy. 

14. The terms of this MAP Policy are confidential and may not be disclosed to any other parties.

What is a MAP Policy? 

A MAP Policy is Flex’s unilateral policy not to do business with Approved Resellers that advertise products below a certain price in print, online, or other media including flyers, mass emails, social media, or any other public method of distribution. 

If I see other Approved Resellers violating the MAP Policy, should I report those violations to my Flex sales representative or to Flex’s management? 

Flex, alone, will administer and enforce this policy, so please do not report any potential violations to Flex sales representatives. Any questions or feedback can be directed to MAP@flexfits.com. 

What happens if I violate the policy? 

Flex will administer its MAP Policy at its sole and unilateral discretion. If we notify you of a violation of the MAP Policy, we will provide you 14 days to fix the violation. If the violation is not remedied, Flex, at its discretion, may unilaterally suspend shipping of the products in violation and/or partially or completely terminate your account. Although we hope it does not reach this point, Flex may unilaterally terminate a retailer’s account after repeated violations of the MAP Policy without notice or warning and at Flex’s complete discretion. 

Are there any exceptions to the policy? Can the policy be suspended? 

There are no exceptions to our MAP Policy. The policy is unilateral and we will not discuss, negotiate, seek or accept any agreement with this policy. We firmly believe that a policy that can be turned on and off is not a true and effective policy. Our policy applies to each and every one of our Approved Resellers and it is enforced 365 days a year. 

What if I have a question about the MAP Policy, as it applies to me, that isn’t covered here? 

Such questions should be directed in writing to MAP@flexfits.com. 

How long will this policy remain in effect? 

You will receive written notice of any changes to the Flex MAP Policy. 

Thank you for your support of Flex and for your positive response to our MAP Policy.