POCKET NURSE® RESELLER TERMS & CONDITIONS

PLEASE READ CAREFULLY! THE FOLLOWING CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. YOU ARE ADVISED TO KEEP A COPY OF THESE CONDITIONS OF SALE FOR YOUR OWN RECORDS.

APPLICABILITY AND ACCEPTANCE: Pocket Nurse Enterprises, Inc. (the “Company”) desires to engage with Reseller to market and sell products as marketed from time to time by Company (collectively, “Products”), and Reseller desires to engage in such services.  “Reseller” means any person or entity purchasing goods or services from Pocket Nurse in order to resell the Products to a third party.  Reseller and Company (each referred to herein as a “Party” in the singular and “Parties” in the plural) desire to define the terms and conditions applicable to Reseller’s performance of such services.  These Reseller terms and conditions including any document incorporated herein (the “Agreement”) govern the purchase and resale of the Products by Reseller. Purchase orders are subject to acceptance by Pocket Nurse. Acceptance by Reseller of any goods from the Company for the purpose of resale will constitute acceptance of the Agreement. No terms and conditions appearing in Reseller's purchase order that are in variance with or contrary to the Agreement will be binding upon Company unless specifically agreed to in writing. This Agreement prevails over any of Reseller's general terms and conditions of purchase regardless of whether or when Reseller has submitted its purchase order or such terms. Fulfillment of Reseller's purchase order does not constitute acceptance of any of Reseller's terms and conditions and does not serve to modify or amend the Agreement.

1.            Length of Agreement.  The Parties agree that this Agreement will last until terminated by either Party (the “Term”).  Company may terminate this Agreement at any time, (a) immediately upon written notice to Reseller, upon Reseller’s breach of any provision set forth herein or (b) upon thirty (30) days’ prior written notice for its convenience. 

2.            Appointment and Acceptance.  The Parties agree to the appointment of Reseller under this Agreement upon the following conditions:

(a)           Company hereby appoints Reseller as one of Company's non-exclusive Resellers to solicit orders for Products. This appointment is non-exclusive and Company reserves the right to appoint other distributors and/or to sell the Products itself in the Territory.

(b)          Reseller shall solicit orders for and sell Products solely to prospective customers that use the Products for educational purposes (the “Industry”), and Reseller must present Products, both orally and in its written materials, to prospective customers as “Medical Supplies for Education and Simulation.”  In addition, Reseller shall identify specific sales prospects (as set forth on Exhibit A), where Reseller has contacts likely to generate sales, within the designated Territory or Industry due to long-term relationships or prior business contacts.  Reseller shall not solicit orders for Products to any sales prospect other than those identified in Exhibit A or in any other geographic territory or industry segment, without prior consent of Company (which may be withheld or conditioned in Company’s sole discretion).  Company shall have the right, from time to time, at its sole discretion, to change or approve changes to the specific sales prospects, the scope of the Territory and/or Industry.  In any such instances, Company shall (i) issue a new Exhibit A to Reseller reflecting such change or (ii) if Reseller requests changes, by accepting in writing a new Exhibit A that Reseller submits to Company, which shall, as of the effective date stated thereon or the date of Company’s acceptance thereof, respectively, supersede the prior Exhibit A.  Reseller acknowledges and agrees that it neither has, nor will acquire, any vested or proprietary right or interest with respect to the Territory or the Industry, any Company customers in the Territory or the Industry, any Company customer lists, or the Products.  Reseller further acknowledges and agrees that any goodwill accruing in the Territory during the term of this Agreement with respect to Company or Products shall be considered the property of Company rather than Reseller.

(c)           Reseller is prohibited from entering into an agreement with any other person or entity which (i) is a current customer or vendor of Company or (ii) engages in the sale, resale or distribution of other goods or products which are similar to or competitive with the Products.

(d)          Reseller shall not, without the prior written consent of Company: (i) appoint any sub reseller, sub distributor or other person or entity to sell or distribute Products at the wholesale level; (ii) sell the Products to any person or entity who Reseller knows or has reason to believe is purchasing Products for resale other than at retail to customers and end users; (iii) market or distribute the Products other than in the form and packaging as delivered by Company to Reseller under this Agreement; (iv) sell or offer to sell any of the Products outside the Territory; or (v) ship or otherwise deliver Products to any facility in a location that is outside the Territory. If Company approves of any third party to serve as a sub-reseller or sub-distributor to Reseller, Reseller shall ensure that such third party accepts the terms of this Agreement in writing and Reseller shall provide Company with monthly written reports no later than the tenth day of the following month with any and all sales of Products in the prior month. 

(e)           Reseller hereby accepts its appointment hereunder.

3.            Responsibilities of Reseller.  At all times during the term of this Agreement, Reseller shall, at its own expense: 

(a) use best efforts to promote and market the Products in the Territory, in a manner consistent with the standards generally observed by a professional in the industry to which such services performed can be classified, in accordance with the terms and conditions set forth; 

(b) maintain a place or places of business in the Territory, including adequate office, storage and warehouse facilities and all other facilities as required for Reseller to perform its duties under this Agreement; 

(c) purchase and maintain at all times a representative quantity of each Product sufficient for and consistent with the Reseller’s customers' sales needs and mutually agreed upon by Company and Reseller; 

(d) maintain an adequate sales force trained in the Products and other personnel as necessary to efficiently promote and sell the Products and service customers in the Territory; 

(e) exhibit and conduct behavior in a manner consistent with the high image, reputation and credibility of Company and Products, and shall engage in no activities that reflect adversely on Company or Products; 

(f) use its best efforts to achieve any sales quotas specified by Company; 

(g) comply with all applicable laws in performance of Reseller’s duties under this Agreement; 

(h) identify the shipping location for all Products, and the name and address of all customers and end users, in each purchase order submitted to Company; and 

(i) not engage in any unfair, competitive, misleading or deceptive practices respecting Company, Company’s intellectual property or Products, including any product disparagement or "bait-and-switch" practices.

4.            Scope and Limitations of Reseller's Authority.  The Parties agree as follows with regards to the scope and limitations of Reseller’s authority under this Agreement:

(a)           Reseller has authority to solicit and accept orders on behalf of Reseller only. 

(b)          Reseller has no authority to bind Company to any agreements or sales orders. 

(c)           Reseller shall adopt Company’s price terms, credit terms, and sales programs as specified in writing and updated from time to time by Company (the “Pricing Schedule”).  Reseller shall also ensure that Company’s standard terms and conditions of sale will govern any of Reseller customer’s purchases of the Products as specified in Exhibit C attached hereto (the “Pocket Nurse Terms and Conditions”). The Pocket Nurse Terms and Conditions are also provided on the internet at https://www.pocketnurse.com/terms_and_conditions, and any updates to the Pocket Nurse Terms and Conditions are effective upon Company’s posting on such website.  Reseller shall have no authority to modify any such prices, credit terms, sales programs or the Pocket Nurse Terms and Conditions without prior authorization from Company.  Company shall have the right, from time to time, at its sole discretion, to change the terms of the Pricing Schedule upon ninety (90) days’ written notice to Reseller.  Reseller may not charge a price higher than what is found on Company’s website for any Product.

(d)          Reseller at no time shall engage in any unfair trade practices with respect to Company or Products, and shall make no false or misleading representations with respect to Company or Products.  Reseller shall refrain from communicating any information with respect to guarantees or warranties regarding Products, except such as are expressly authorized by Company or are set forth in Company's literature or other promotional materials. Reseller shall ensure that it disclaims all common law warranties, including without limitation the warranty of merchantability, in writing in a clear and conspicuous manner in Reseller’s terms of sale to its customers. 

(e)           Reseller shall not use Company's tradenames or trademarks or any names closely resembling same as part of Reseller's corporate or business name, or in any manner which Company, in its sole discretion, may consider misleading or otherwise objectionable.

5.            Reseller Product Purchases.  The Parties agrees as follows with respect to the purchase of Products by Reseller under this Agreement:

(a)           By submitting a purchase order (a “Purchase Order”) to Company, Reseller may, subject to Company accepting the Purchase Order, purchase Products at the wholesale pricing level. Unless agreed to otherwise in writing in a separate pricing schedule, wholesale pricing level prices are set out in Company’s distributor or reseller price list in effect when the Company accepts the related Purchase Order (“Prices”). Each Purchase Order shall specify the following information (collectively, the “Purchase Order Transaction Terms”): (i) a list of Products to be purchased, including make/model number; (ii) quantities ordered; (iii) requested delivery date; and (iv) delivery point. Company may change or discontinue Products at any time in its discretion and Company will give Reseller prior written notice of its intent to change, discontinue manufacture, sale, or support of any Product. Reseller has no right to cancel, reschedule delivery, or otherwise amend any Purchase Order accepted by Company.

(b)          Company will invoice Reseller for Products purchased by Reseller in a Purchase Order that Company has accepted. Company shall issue periodic invoices to Reseller for all Products ordered in the previous month. Reseller shall pay all invoiced amounts due to Company within thirty (30) days from the date of the invoice, except for any amounts disputed by Reseller in good faith. Reseller shall make all payments in US dollars (x) by ACH if Reseller is located within the United States of America, or (y) by wire transfer if Reseller is located outside the United States of America. Except for invoiced payments that Reseller has successfully disputed, Reseller shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Reseller shall also reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights under this Agreement), Company may (a) suspend the delivery of any Products if Reseller fails to pay any undisputed amounts when due under this Agreement and (b) terminate this Agreement for cause. 

(c)           Unless expressly agreed to by the Parties, Company shall deliver the Products to the delivery point, using Company’s or manufacturer's standard methods for packaging and shipping the Products. All prices include shipping costs and are F.O.B. Company's facility (Incoterms 2020). Reseller understands and agrees that all risk of loss passes to Reseller upon delivery of Products to the applicable carrier with each purchase of Company Products by Reseller.  Reseller understands and agrees that Company is not liable to Reseller for any loss of, damage to, or inability to sell any Products. Any time quoted for delivery is an estimate only; provided, however, that Company shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Company is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of any Product relieves Reseller of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment or other orders of Products.

(d)          Reseller’s Purchase Orders to Company are subject to written acceptance by an authorized representative of Company. Company reserves the unconditional right to reject any Purchase Order, in whole or in part, for any reason. Purchase Orders submitted by Reseller shall not be binding on Company until the earlier of written acceptance by Company or shipment, and acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Company. 

(e) Company reserves the right to refuse, cancel or delay any Purchase Order placed by Reseller and accepted by Company (i) when Reseller is delinquent in payments or when Reseller has failed to perform any of its obligations under this Agreement; or (ii) if Company discontinues its sale of Products or reduces or allocates its inventory of Products.  Each issuance of a Purchase Order to Company constitutes Reseller’s representation and warranty that Reseller can pay for the Products identified in the Purchase Order in accordance with the terms of this Agreement. Reseller shall furnish Company with statements accurately and fairly evidencing Reseller’s financial condition as Company may, from time to time, reasonably request. Throughout the term, Reseller shall be in compliance with all loan covenants and other obligations to its lenders. Reseller shall notify Company immediately of any and all events that have had or may have a material adverse effect on Reseller’s business or financial condition, including any change in management, sale, lease or exchange of a material portion of Reseller’s assets, a change of control or ownership, or breach of any loan covenants or other material obligations of Reseller to its lenders. If, at any time, Company determines in its sole discretion that Reseller’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Company’s other rights under this Agreement, at law or in equity, Company may without liability or penalty, take any of the following actions: (i) upon written notice, modify the payment terms specified in Section 5(b) for outstanding and future purchases, including requiring Reseller to pay cash in advance or cash on delivery; (ii) reject any Purchase Order received from Reseller; (iii) cancel any previously accepted Purchase Orders; (iv) delay any further shipment of Products to Reseller; stop delivery of any Products in transit in the possession of a common carrier or bailee and cause the Products in transit to be returned to Company; (v) immediately terminate this Agreement; or (vi) accelerate the due date of all amounts owing by Reseller to Company.

(f) Reseller is responsible for all credit risks regarding, and for collecting payment for, all Products sold to third parties (including its customers), whether or not Reseller has made full payment to Company for the Products.  The inability of Reseller to collect the purchase price for any Product does not affect Reseller’s obligation to pay Company for any Product.

6.            Ownership of Intellectual Property.  The Parties agree that all intellectual property rights to Products are solely vested in Company.  Reseller shall make no claim to Products, nor shall Reseller make any such claims in any ideas, modifications to products, and other deliverables (collectively, “Work Product”) that result from Reseller’s services pursuant to this Agreement.  The Parties agree that such Work Product is considered to be a “work made for hire” and shall be therefore exclusively vested in Company and/or automatically assigned to Company.  Reseller agrees to promptly execute any documents necessary for Company to perfect its rights in such Work Product. To the extent that Reseller translates or causes to be translated, any of Company’s marketing materials, user manuals or other documentation, such translations shall be deemed to be a Work Product. Reseller hereby irrevocably assigns all copyrights in these translations to Company, subject to a non-exclusive, non-transferable and non-sublicensable license to Reseller, hereby granted by Company, to use the translations in the Territory during the Term solely on or in connection with the promotion, advertising, resale or use of the Products permitted under this Agreement. Reseller is authorized to refer to and advertise itself as an authorized distributor of the Products in the Territory. Any use of the name “Pocket Nurse” by Reseller in connection with its distribution and sale of the Products or advertising of the name “Pocket Nurse” is subject to Company’s prior written approval and is at the Reseller's sole cost and expense. Reseller shall not: (i) take any action that may interfere with any of Company's rights in or to Company's intellectual property rights, including Company's ownership or exercise thereof; (ii) challenge any right, title or interest of Company in or to Company's intellectual property rights; (iii) make any claim or take any action adverse to Company's ownership of Company's intellectual property rights; (iv) register or apply for registrations, anywhere in the world, for Company's trademarks or any other trademark that is similar to Company's trademarks or that incorporates Company's trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to Company's trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products purchased under this Agreement or any Company trademark; (vii) misappropriate any of Company's trademarks for use as a domain name without prior written consent from Company; (viii) alter, obscure or remove any of Company's trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Products purchased under this Agreement, marketing materials or other materials that Company may provide. Reseller shall immediately cease all display, advertising, promotion and use of all of Company's Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with Company’s trademarks or with any trademark, trade name or product designation associated with Company or any Product.

7.            Support of Products.  The Parties agrees as follows with respect to the support of Products under this Agreement: (a) Company shall provide Reseller with internal product support for Reseller and its employees; and (b) Reseller shall provide end user support for all Products which Resellers sells.

8.            Employees and Contractors.  Reseller agrees that it will ensure that its employees and contractors performing services under this Agreement comply with this Agreement, including, but not limited to, having such employees sign documents assigning intellectual property rights to Company to the extent Reseller is required such rights to Company.

9.            Warranties and Disclaimers.  

(a) Each Party represents and warrants to the other Party that: (i) it is a corporation duly organized, validly existing and in good standing in the jurisdiction of its incorporation; (ii) it is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required, except where the failure to be so qualified, in the aggregate, could not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement; (iii) it has the full right, corporate power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; and (iv) the execution of this Agreement by its Representative whose signature is set out at the end hereof has been duly authorized by all necessary corporate action of such Party.

(b) Company makes certain limited warranties regarding the Products ("Limited Warranties") solely to and for the Customer's benefit, which will either be: (i) included a written warranty statement with the Product; or (ii) Company's standard limited warranty in force when the Product is delivered by Reseller to its customer.  No warranty is extended to Reseller under this Agreement. Reseller shall not provide any warranty regarding any Product other than the Company warranty described in this section.

(c) NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF WILL MAKE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; (iv) NON-INFRINGEMENT; OR (v) PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED; AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY STATED IN SECTION 5(b) ABOVE. 

(d) Third Party Products. Reseller acknowledges and agrees that Products purchased by Reseller under this Agreement may contain, be contained in, incorporated into, attached to or packaged together with the products manufactured by a third party (“Third Party Products”). Third Party Products are not covered by the Limited Warranty. For the avoidance of doubt, Company makes no representations or warranties regarding any Third Party Products.

10.   Indemnification.  Reseller hereby agrees to indemnify Company for any liability that Company may incur as a result of Reseller’s breach of this Agreement, including without limitation Reseller’s failure to ensure that the sale of Products will be subject to the Pocket Nurse Terms and Conditions.  The terms of this section (and Reseller’s obligations hereunder) shall survive the termination and/or expiration of this Agreement.

11.          Taxes.  Prices do not include, and Company shall not be responsible for, the cost of freight, insurance, or any required federal, state or local sales or other taxes, duties, export or custom charges, VAT charges, brokerage or other fees. Reseller shall also be responsible for payment of all sales, use and excise taxes relating to Reseller’s services under this Agreement. 

12.          Limitation of Liability and Exclusion of Certain Remedies.  Under no circumstance, regardless of the basis of the claim, shall the total liability of Company to Reseller exceed the total amount of completed sales from Reseller within the last three (3) calendar months.  In no event shall either Party be liable to one another for consequential, special, incidental, or punitive damages (including, but not limited to, legal costs and fees) from any claim asserted against either Party hereto, or by any third party through any Party to this Agreement.  The terms of this section shall survive the termination and/or expiration of this Agreement. 

13.          Confidentiality.  During the period in which Reseller is providing services for Company and for at least five (5) years thereafter, Reseller shall keep secret and retain in strictest confidence, and shall not, without the prior consent of Company, furnish, make available or disclose to any third party or use for the benefit of itself (except as necessary to fulfill the purposes of this Agreement) or any third party, any Confidential Information of Company.  As used herein, “Confidential Information” shall mean any information relating to business or affairs of Company, including but not limited to any Products, Work Product, information relating to financial statements, business strategies and plans, customer identities, customer accounts, potential customers, employees, suppliers, servicing methods, equipment, programs, style and design strategies and information, analyses, profit margins, or other proprietary information used by Company in connection with its business.  If Reseller is an entity, it will make sure that the Confidential Information is disclosed only to those of its employees whose functions require that they obtain access to the Confidential Information to carry out the purpose of this Agreement, that have been informed of the confidential nature and obligations of Reseller with respect to the Confidential Information and who are subject to a general written agreement committing such employees to conduct that would not violate Reseller’s obligations listed in this section with respect to such Confidential Information if such conduct was committed by Reseller.  Reseller’s obligations pursuant to this section shall survive the termination and/or expiration of this Agreement. Reseller hereby agrees and acknowledges that any breach or threatened breach of this Agreement regarding the treatment of the Confidential Information may result in irreparable harm to Company for which there may be no adequate remedy at law. In addition to other remedies provided by law or at equity, in such event Company shall be entitled to receive an injunction, without bond, preventing any further breach of this Agreement by Reseller.

14.          Insurance.  Reseller agrees, at its own expense, to maintain the following minimum insurance coverage during the term of this Agreement: (a) worker’s compensation insurance or employer’s liability insurance, as required by applicable law; and (b) comprehensive general liability and property damage insurance with bodily injury and property damage limits of $1,000,000 combined single limit. During the Term, Reseller shall also, at its own expense, maintain and carry in full force and effect Warehouse Insurance (including product liability) with financially sound and reputable insurers. On Company’s request, Reseller shall provide Company with a certificate of insurance from Reseller's insurer evidencing the insurance coverage specified in this section.  Reseller shall provide Company with 30 days' advance written Notice in the event of a cancellation or material change in its insurance policy.

15.          Termination.  Notwithstanding anything to the contrary in this Agreement or any Exhibit hereto, Company may terminate this Agreement and related Exhibits without any obligation, upon thirty (30) days’ notice via e-mail, facsimile or hand delivery.  Upon such notice of termination, Reseller shall immediately surrender all Confidential Information (“Termination Obligations”) and certify to Company, in writing, that it has performed its Termination Obligations.  On expiration or earlier termination of this Agreement, Reseller shall immediately cease all display, advertising, promotion and use of all of Company's Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with Company's trademarks or with any trademark, trade name or product designation associated with Company or any Product. Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Products to Reseller that are scheduled to be made after the effective date of termination, whether or not any orders for the Products had been accepted by Company.  Regarding any Products that are still in transit on termination of this Agreement, Company may require, in its sole and absolute discretion, that all sales and deliveries of the Products be made on either a cash-only or certified check basis. Reseller’s obligations pursuant to this section shall survive the termination and/or expiration of this Agreement.

16.          Solicitation.  During the term of this Agreement and for a period of three (3) years after termination of this Agreement, Reseller shall not hire, solicit, or induce or assist any third party in soliciting or inducing any employee or Reseller of Company to leave his or her employ or cease providing services to Company, as applicable.

17.          No Other Relationship or Interest.  The Parties agree that this Agreement does not create any other relationship or legal interest between the Parties, including, but not limited to, employer/employee relationship, license, title, guarantee of work, or right to use any Confidential Information, except as specified by this Agreement. 

18.          Specific Performance.  The Parties agree that due to personal and unique nature of services provided by Reseller, specific performance is an available remedy. 

19.          Governing Law.  The laws of the Commonwealth of Pennsylvania, without regard to any conflict of law principles, govern this Agreement. Any claims or legal actions by one party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in Allegheny County in the Commonwealth of Pennsylvania. Both Parties hereby submit to the jurisdiction and venue of any such court.

20.          Limitations on Assignment and Subcontracting.  Reseller may not assign, transfer, subcontract or sell all or any of its rights under this Agreement or delegate all or any of its obligations hereunder, without the prior written consent of Company, which may be withheld by Company in its sole discretion.  Company may freely assign this Agreement or its rights hereunder without obtaining Reseller’s consent.  Subject to these restrictions, the provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors and permitted assigns. 

21.          General.  This Agreement, including all Exhibits, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the Parties and any current or subsequent purchase order(s) provided by Reseller.  This Agreement is expressly limited to the terms of this Agreement and the Purchase Order transaction terms contained in the applicable Purchase Order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Reseller’s general terms and conditions contained in any Purchase Order or other document issued by Reseller. No alteration or modification of this Agreement or any Exhibits hereto shall be valid unless made in writing and signed by an authorized representative of each Party.  The waiver by either Party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach and any waiver must be in writing and signed by an authorized representative of the Parties hereto.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.  Any notice or other communication required or permitted hereunder shall be given in writing to the other Party at the address stated above, or at such other address as shall be given by either Party to the other in writing. The Parties acknowledge that this Agreement is not a franchise or business opportunity agreement and does not create a franchise or business opportunity relationship between the Parties. If any provision of this Agreement is deemed to create a franchise or business opportunity relationship between the Parties, then the Parties shall promptly negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a distribution agreement and not a franchise or business opportunity agreement.