JNJ MOVEMENT DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made as of (the “Effective Date”) by and between JNJ Movement, LLC, a Florida limited liability company d/b/a JNJ Movement, with its principal place of business located at 4928 Monroe Forest Dr. Jacksonville, FL 32357 and the following company:
Referenced hereafter as “DISTRIBUTOR”
ABOVE INFORMATION TO BE FILLED OUT ELECTRONICALLY WHEN DISTRIBUTOR SIGNS UP AND IS APPROVED FOR ONLINE ACCOUNT ON JNJMOVEMENT.COM
NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it is agreed as follows:
APPOINTMENT OF DISTRIBUTORSHIP
- Distribution Right: JNJ Movement hereby appoints and grants DISTRIBUTOR the non-exclusive and non-assignable right to sell products endorsed and supplied by JNJ Movement (the “Products”) listed in the then-current “Distributor Pricing Document” as available by contacting firstname.lastname@example.org, as the same may be amended from time to time by JNJ Movement in its sole discretion. Distributor acknowledges and agrees that it will only sell the Products within the confines of its professional practice and will NOT sell the Products online in any way, shape, or form. Distributor further acknowledges and agrees that JNJ Movement may grant similar rights to other persons or entities within the United States. Distributor may appoint subdistributors, subrepresentatives, or subagents to sell or otherwise promote the Products (except for the use of online means to sell) at the sole discretion of the Distributor.
- Prices: Distributor acknowledges and agrees that JNJ Movement has established a Minimum Advertised Price Policy (the “MAP Policy”), attached hereto as Exhibit A, as the same may be amended from time to time by JNJ Movement in its sole discretion. Prices do not include national, state, or local taxes, or other taxes, import custom clearance and taxes, customs duties, or similar tariffs applicable to the products sold under the Agreement, all of which shall be the responsibility of the Distributor. An amount equal to the appropriate taxes will be added to the invoice by JNJ Movement where JNJ Movement has the legal obligation to collect such taxes. Distributor shall pay such amount to JNJ Movement unless Distributor provides JNJ Movement with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Title to Products: Title to the Products shall pass to Distributor upon receipt by JNJ Movement of payment in full for all amounts due for such units of Products.
MARKETING AND SUPPORT
- Sales: Subject at all times to Article IV below, Distributor shall use its best efforts to promote the sale and distribution of the Products and to provide adequate support.
- Advertising: Subject at all times to Article IV below, JNJ Movement may, upon request, assist the Distributor on all advertising, sales promotion, and public relations campaigns to be conducted, including providing Distributor with documentation of previous promotional campaigns conducted in connection with the Products, and shall provide necessary technical information and assistance. Distributor will solely use the name of JNJ Movement and all associated trademarked items, if at all, as defined in Article IV for any advertising, and all such usage shall be subject to JNJ Movement’s approval, which approval may be withheld or withdrawn at any time for any reason.
- Purchase Orders: Distributor shall order Products by accessing and being approved for a private distributor group portal on JNJ Movement’s website (jnjmovement.com), using credentials created by Distributor. Distributor is responsible for maintaining the security of such credentials, and acknowledges and agrees that it shall be deemed a material breach of this Agreement to share such credentials with any third party.
- Shipment: JNJ Movement will not ship or have shipped by supplier any order prior to receipt of payment in full (including all costs of shipping and insurance). Shipping dates are appropriate and are based, to a great extent, on prompt receipt by JNJ Movement of all necessary ordering information from Distributor. JNJ Movement shall prepay all costs of transportation and insurance and such expenses shall be passed through to the Distributor and added to each invoice. JNJ Movement shall not be in default by reason of any failure in its performance under this Agreement if such failure results from, whether directly or indirectly, fire, explosion, strike, freight embargo, or of the public enemy, war, civil disturbance, act of any government, de jure or de facto, or agency or official thereof, material or labor shortage, transportation contingencies, unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic, or catastrophe. Lack of timely instructions or essential information from Distributor, or otherwise arisen out of causes beyond the control of JNJ Movement. JNJ Movement shall not at any time be liable for any incidental, special, or consequential damages.
- Cancellation: Distributor may, at any time prior to the scheduled date of shipment, cancel any or all Products on order upon given timely written notice.
- Use of JNJ Movement Intellectual Property: JNJ Movement will provide the Distributor, upon request by Distributor made at email@example.com, with certain of JNJ Movement’s logos and trademarks (collectively, the “JNJ Movement Marks”) for use in connection with the marketing, sale and/or distribution of the Products. The use of the JNJ Movement Marks shall be subject to JNJ Movement’s prior written approval, such approval to be granted or withheld by JNJ Movement in its sole discretion for any reason of for no reason. Notwithstanding the foregoing, all right, title and interest in the JNJ Movement Marks, including but not limited to copyrights and distribution rights, is and shall be vested solely in JNJ Movement, and except as permitted in this Agreement the Distributor shall have no right to use, modify, or reproduce such JNJ Movement Marks. JNJ Movement expressly prohibits any direct or indirect use, reference to, or other employment of the JNJ Movement Marks or any other intellectual property exclusively licensed to JNJ Movement, except as specified in this Agreement or as expressly authorized by JNJ Movement in advance in writing. All advertising and other promotional material will be submitted to JNJ Movement at least two weeks in advance and will only be used if JNJ Movement consents to such materials, which consent may be withheld by JNJ Movement for any reason of for no reason in JNJ Movement’s sole discretion. JNJ Movement hereby authorizes and requires Distributor’s use of JNJ Movement’s insignia or lettering which will be on some of the Products at the time of the delivery solely for purposes of marketing and selling such Products. JNJ Movement hereby authorizes the Distributor’s use of the legend set forth below, JNJ Movement shall submit to the Distributor in writing full particulars to any use of the authorized legends, on stationery, invoices, promotion material or otherwise, and shall not proceed with such use unless and until JNJ Movement’s written approval shall have been received. Distributor acknowledges it does not have any right to use logos and/or trademarked items of companies besides JNJ Movement that produce the Products.
The authorized legend, as the same may be amended from time to time, will be provided by JNJ Movement or by contacting firstname.lastname@example.org. If the authorized legend is used on any stationery, invoices, promotional material or otherwise by Distributor, Distributor will, on termination of this Agreement, or upon sooner request of JNJ Movement, discontinue the use of such legend on any stationery, invoices, promotion material or otherwise and thereafter will not use, either directly or indirectly in connection with its business, such legend or any other names, titles of expressions so nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public. The JNJ Movement Marks, trade name, label designs, product identifications, artwork, names, images, signatures, likeness and other symbols and devices associated with JNJ Movement and its products or services (collectively the “JNJ Movement Intellectual Property”) are and shall remain JNJ Movement’s sole and exclusive property. The Distributor’s right to use the JNJ Movement Intellectual Property is non-exclusive, non-assignable and non-transferable and shall inure solely to the benefit of JNJ Movement. Subject to the foregoing, JNJ Movement grants to the Distributor, during the Term of this Agreement, a limited, royalty-free, non-assignable, non-exclusive, terminable license to use JNJ Movement’s Intellectual Property only to the extent necessary to allow Distributor to fulfill its obligations hereunder.
- Use of Distributor Intellectual Property: JNJ Movement shall have the non-exclusive right, but not the obligation, to use (without alteration) the name, logo, trademarks, copyrights and service marks of the Distributor (the “Distributor Marks”) for advertising, promotion and publicity in connection with the Products and the Outpost Program. Notwithstanding the foregoing, all right, title and interest in the Distributor Marks, including but not limited to copyrights and distribution rights, is and shall be vested solely in Distributor.
DURATION OF AGREEMENT
- Term: The term of this Agreement shall be for five (5) years from the Effective Date, unless sooner terminated. Termination shall not relieve either party of obligations incurred prior thereto.
- Termination: This Agreement may be terminated only:
- By either party for substantial breach of any material provision of this Agreement by the other, provided due notice has been given to the other of the alleged breach and such other party has not cured the breach within thirty (30) days thereof; or
- By JNJ Movement if: (i) there is a change in the ownership (equitable or beneficial), control or management of the Distributor; (ii) the Distributor ceases to function as a going concern or makes an assignment for the benefit of creditors; (iii) a petition in bankruptcy is filed by or against the Distributor, resulting in an adjudication of bankruptcy; (iv) the Distributor fails to pay its debts as they become due, (v) the Distributor violates the MAP Policy, as determined by JNJ Movement in its sole discretion, or (vi) the Distributor shares its private distributor group portal credentials, and provided, in the case of (i), (ii), (iii), or (iv), due notice has been given by JNJ Movement to the Distributor and the Distributor has not cured such breach within thirty days thereof;
- By JNJ Movement with or without cause, upon JNJ Movement giving sixty (60) days advanced written notice to Distributor of JNJ Movement’s intention to so terminate.
Upon termination of this Agreement all further rights and obligations of the parties shall cease, except that Distributor shall not be relieved of (i) its obligation to pay any monies due, or to become due, as of or after the date of termination, and (ii) any other obligation set forth in this Agreement which is to take effect after the date of termination.
- Notice of Communication: Any notice or communication required or permitted hereunder (other than Administrative Notice) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses set forth below or to such changed address as any party entitled to notice shall have communicated in writing to the other party. Notices and communications to JNJ Movement shall be sent to:
4928 Monroe Forest Dr.
Jacksonville, FL 32357
ATTN: Nancy Rojas
Notices and communication to Distributor shall be sent to address shown on first page of this Agreement. Any notices or communications to either party hereunder shall be deemed to have been given when deposited in the mail, addressed to the then current address of such party.
- Date of Effectiveness: Any such notice or communication; so mailed shall be deemed delivered and effective seventy-two (72) hours after mailing thereof in the United States.
- Confidentiality Covenant: The Distributor shall not, directly or indirectly, individually or in concert with or through any other Person, use or disclose JNJ Movement’s Confidential Information and shall maintain and keep such information secret and in the strictest confidence. For purposes of this Agreement, “Confidential Information” shall mean trade secrets, copyrighted or trademarked material, invention disclosure, designs, programs, blueprints, plans, documents, employee information, know-how, models, referral sources, vendors, customers, marketing studies, strategic plans, profits, costs, pricing, process descriptions, product/service listings, and all other information, whether written (or other forms of media) or oral, which is proprietary to JNJ Movement, gives JNJ Movement a competitive business advantage or the opportunity of obtaining such advantage, derives actual or potential independent economic value from not being generally known to and not being readily ascertainable by other persons who can obtain economic value from its disclosure or use, is designated as Confidential Information by JNJ Movement, or from all the relevant circumstances should reasonably be assumed to be confidential and proprietary to JNJ Movement. Upon the request of either party, all written (or other forms of media) Confidential Information, with all copies and extracts thereof, shall be delivered to JNJ Movement, and all memoranda, notes, designs, plans, schedules, lists and other writings prepared based upon the Confidential Information shall either be immediately delivered to JNJ Movement or destroyed, as JNJ requests.
- Consideration for Restrictive Covenants: Each party hereby acknowledges that the covenants contained in paragraph 1 of this ARTICLE VII (the “Restrictive Covenants”) are a material inducement to the parties in entering into this Agreement and each party hereby acknowledges the receipt and sufficiency of the consideration therefor.
- Injunctive Relief: The parties agree that a breach of any of the Restrictive Covenants may cause irreparable damage to JNJ Movement, the extent of which may be difficult to ascertain, and that the award of damages may not be adequate relief. Therefore, the parties agree that in the event of a breach or a threatened breach of any of the Restrictive Covenants JNJ Movement may institute an action to compel the specific performance of the Restrictive Covenants. The parties agree not to assert adequacy of money damages as a defense and agrees that such remedy shall be cumulative, not exclusive, and in addition to any other available remedies.
- Tolling Period: Each party acknowledges that JNJ Movement is entitled to receive the period of nonsolicitation set forth in this ARTICLE VII immediately following the expiration or termination of this Agreement. Each party agrees if any of these obligations to JNJ Movement are breached during the applicable period, then the time period will be extended for the length of time that either party failed to fulfill its obligations.
- Relationship of Parties: The relationship between the parties established by this Agreement shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Distributor are expressly reserved to JNJ Movement to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied, or to make changes to JNJ Movement’s terms and conditions of sale, to extend JNJ Movement’s warranties.
- Independence of Parties: Nothing contained in this Agreement shall be construed to make the Distributor the agent for JNJ Movement for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. The Distributor specifically agrees that it shall have no power or authority to represent JNJ Movement in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent JNJ Movement in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent orally or in writing to any person or corporation or other business entity that it has any right, power or authority not expressly granted by this Agreement.
- Indemnity: The Distributor agrees to hold JNJ Movement free and harmless from any and all claims, damages, and expenses of every kind or nature whatsoever, including attorney’s fees, (a) arising from acts or omissions of the Distributor; (b) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (c) arising from acts of third parties in relation to products sold to the Distributor under this Agreement, including, but not limited to execution of liens and security interests by third parties with respect to any such products.
- Assignment: This Agreement constitutes a personal contract and Distributor shall not transfer or assign same or any part thereof without the advance written consent of JNJ Movement, which consent may be withheld by JNJ Movement for any reason or for no reason, in JNJ Movement’s sole discretion.
- Entire Agreement: The entire Agreement between JNJ Movement and the Distributor covering the Products is set forth herein and any amendment or modification shall be in writing and shall be executed by duly authorized representatives in the same manner as this Agreement. The provisions of this Agreement are severable, and if any one or more such provisions are determined to be illegal or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto. Any provisions, terms or conditions of Distributor's Purchase Orders which are, in any way contradicting of this Agreement, except those additional provisions specifying quantity and shipping instructions, shall not be binding upon JNJ Movement and shall have no applicability to the sale of goods by JNJ Movement to Distributor.
- Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of law). The parties hereby consent to the exclusive jurisdiction of the courts of the State of Ohio in Franklin County, and the United States District Court for the Southern District of Ohio, Eastern Division and waive any contention that any such court is an improper venue for enforcement of this Agreement. JNJ Movement's rights granted hereby are cumulative and in addition to any rights it may have at law or equity.
- Separate Provisions. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date and year in which DISTRIBUTOR becomes approved for account on jnjmovement.com
This agreement committed between JNJ MOVEMENT and DISTRIBUTOR authorized electronically by DISTRIBUTOR agreeing to terms and conditions when signing up for account and JNJ Movement approving account for DISTRIBUTOR on jnjmovement.com
Minimum Advertised Price Policy
JNJ Movement is a product and service company that selects the best self-care mobility products on the market and makes them available to a select group of high-quality distributors. JNJ Movement also provides advice to Distributors in order to improve product sales and increase mobility tool use.
We recognize that our high-quality dealers invest time and resources to deliver an extraordinary customer experience through knowledgeable staff and compelling vendor presentation. To support our resellers’ efforts, JNJ Movement wishes to establish policies that allow resellers to earn the profits necessary to maintain the high level of customer excellence people deserve.
To protect the investment of our high-quality dealers, and JNJ Movement’s and its affiliated company’s brand reputations, we have unilaterally adopted a MINIMUM ADVERTISED PRICE POLICY (“MAP Policy”). JNJ Movement established this MAP Policy due to the fact that reseller advertising and sales practices that promote our affiliated companies’ products primarily on the basis of price could be detrimental to resellers’ service and support efforts and our affiliated companies’ competitive position. Such activities can be harmful to our affiliated companies’ brand, reputation and competitiveness, and allow some resellers to take advantage of the service and support efforts of others. JNJ Movement believes that these practices are unfair and thus discourages such efforts.
JNJ Movement, in its unilateral discretion, will not do business with any reseller, as to the products covered by this MAP Policy, if that reseller intentionally advertises any MAP Product below its MAP price. JNJ Movement is confident that this program will strengthen its competitiveness and benefit all of its resellers and affiliated companies.
Official Policy and Guidelines
Additional guidelines related to this MAP Policy are as follows:
- The MAP Policy will be enforced by JNJ Movement in its sole discretion. Violations of this MAP Policy will be determined by JNJ Movement in its sole discretion. JNJ Movement will not accept any communication from a reseller who has violated this MAP Policy regarding the violation or the willingness of the reseller to bring its prices into compliance with the MAP Policy. JNJ Movement will not discuss any conditions of acceptance related to this MAP Policy as it is non-negotiable and will not be altered for any reseller.
- JNJ Movement reserves the right, in its unilateral discretion, to take other action with respect to any reseller that violates this MAP Policy.
- JNJ Movement recognizes that any authorized JNJ Movement account can make its own decisions to advertise and sell any product provided by JNJ Movement at any price it chooses without consulting or advising JNJ Movement. JNJ Movement similarly has the right to make its own independent decision regarding product allocations and reseller participation as a distributor of JNJ Movement.
- JNJ Movement will maintain an updated “MAP Products” list of those products that will fall under this MAP Policy. JNJ Movement reserves the right to update or modify this list at any time. The MAP Products list will be available at JNJ Movement’s distributor portal. JNJ Movement distributors are responsible for remaining current with JNJ Movement’s current MAP policy, products, and pricing.
- All Products listed will have a MAP retail price. Listing a price lower than the MAP retail price next to the featured MAP Product in any advertising will be viewed as a violation of this MAP Policy. This MAP Policy applies to all advertisement of MAP Products in any and all media, including, without limitation, flyers, posters, coupons, mailers, inserts, newspapers, magazines catalogs, mail order catalogs, internet or similar electronic media including websites, forums, email newsletters, email solicitations, television, radio, and public signage. Such website features as “Click for price”, automated “bounce – back” pricing e-mails, pre-formatted e-mail responses, forms, automatic price display for any items prior to being placed in a customer’s shopping cart, and other similar features are considered to be communications initiated by the reseller (rather than by the customer) and this constitutes “advertising” under this MAP Policy. This MAP Policy also applies to any activity which JNJ Movement determines, in its sole discretion, is designed or intended to circumvent the intent of this MAP Policy, such as solicitations for ‘group purchases’ and the like.
- It shall not be a violation of this MAP Policy to advertise in general that the reseller has “the lowest prices” or will match or beat its competitors’ prices, or to use similar phrases; so long as the reseller does not include any advertised price below MAP and otherwise complies with this MAP Policy.
- From time to time, JNJ Movement may permit resellers to advertise MAP Products at prices lower than the MAP retail price. In such events, JNJ Movement reserves the right to modify or suspend the MAP retail price with respect to the affected products for a specified period of time by providing advance notice to all resellers of such changes.
- From time to time JNJ Movement may offer a direct manufacturer’s rebate to customers. 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 include 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.
- Where JNJ Movement products are bundled with or sold as part of a package that includes other products (whether or not manufactured by JNJ Movement), it shall be a violation of this MAP Policy to sell or advertise the bundle (or package) at a price that: (a) is lower than the total Minimum Advertised Price of the JNJ Movement product or (b) violates the letter or spirit of the MAP Policy as determined by JNJ Movement in its sole discretion. It shall be a violation of this MAP Policy if products are bundled with or sold as part of a package that includes products not pre-approved by JNJ Movement. Pre-approved products have been tested and approved by JNJ Movement to ensure the product is up to JNJ Movement’s standards. Contact email@example.com or see the JNJ Movement website for a list of approved products.
- Its shall be a violation of this MAP Policy to include in any advertising for JNJ Movement Products any additional discount, coupon, gift card, or incentive (whether in the form of a special event, promotion, term of doing business or otherwise) that translates into an immediate price reduction, where the cumulative effect would be to reduce the advertised price of any MAP Product below MAP. Advertising that includes an additional discount, coupon, gift card, points, or any other incentive for future purchases (regardless of whether the future purchases is of a JNJ Movement product) shall be evaluated under the same guidelines as described in Section 9 regarding product bundling. For example, a gift card redeemable on a future purchase would be considered an “other product” under Section 9. This Section 10 shall not apply to any manufacturer’s rebate from JNJ Movement or its partners’ products.
- It shall not be a violation of this MAP Policy to advertise that a customer may ”call for price” or “email for price”, or to use similar language, specifically with respect to JNJ Movement Products, so long as no price is listed.
- If a reseller with multiple store locations violates this MAP Policy at any particular store location, then JNJ Movement will consider this to be a violation by all of the reseller’s locations.
- Although resellers remain free to establish their own resale prices, JNJ Movement reserves the right to cancel all orders and indefinitely refuse to accept any new orders from any resellers following JNJ Movement’s verification that such reseller has advertised any MAP Products at a net retail sales price less that the then-current MAP retail price established by JNJ Movement or its affiliated companies, or if reseller has violated this policy in any other way.
- JNJ Movement’s sales representatives are NOT permitted to discuss this Policy or make any agreements or assurances with respect to JNJ Movement’s Policy regarding reseller advertising or pricing. This also includes any consumer program or promotion that affects the below-listed MAP Products. All questions or comments regarding this MAP Policy are to be directed to the policy administrator at firstname.lastname@example.org. The Policy Administrator shall be solely responsible for determining whether a violation of the MAP Policy has occurred, communicating decisions to resellers regarding the MAP Policy and receiving any communications regarding sanctions imposed under this policy.