Wholesale Terms and Conditions

Retailer Terms 

 

This Retailer Agreement ("Agreement") is entered into between N Plus North America, LLC ("N+"), a Delaware limited liability company located 5470 E 2nd street Long Beach CA 90803 and Dealer (as defined on the Wholesale Portal application) at nplusholdings.com (“RETAILER”) 

 

WHEREAS, N+ agrees to authorize the RETAILER to sell N+’s licensed Products to Retail Consumers and pursuant to these Standard Retailer Terms between N+ and RETAILER (hereinafter in this document, “Terms”), and 

 

WHEREAS, RETAILER acknowledges and agrees to act as an authorized retailer of N+ and to sell to Retail Consumers those N+ Products listed on the Wholesale Portal to which these Terms are included, and 

 

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, N+ and RETAILER, both of which may be referred to as “party” or “parties” herein, hereby agree as follows: 

 

  1. AUTHORIZATION TO SELL PRODUCTS TO RETAIL CONSUMERS IN IDENTIFIED RETAIL LOCATIONS AND/OR WEBSITES.

 

1.1 RETAILER is an entity that has been qualified and approved by N+ to resell the Products subject to these Terms. RETAILER account approval or renewal is determined by N+ in its sole and absolute discretion.  

 

1.2 RETAILER acknowledges and agrees that RETAILER shall not sell the Products on any third party ecommerce marketplaces without the express permission of N+. 

 

1.3 RETAILER acknowledges that N+ has control and authority over the Products in conjunction with the licensor, which includes but is not limited to the establishment of the MSRP for each Product; what Products to offer retailers for any period; the technical specifications for each Product; and similar matters.  

 

1.4 RETAILER shall not sell or transfer any Products to any party that RETAILER knows, or should reasonably know, has intention(s) to resell the Products in any geography in or outside of the Territory of the Unites States of America, as further described in Section 3 below. 

 

  1. COMMERCIAL TERMS.

 

2.1 RETAILER and N+ acknowledge and agree that the commercial terms applicable to the sale of Products by N+ to RETAILER (payment terms, returns, warranty, etc.) shall be governed by purchase order(s) placed for such Products by RETAILER and as accepted by N+ with terms for payment and any other relevant terms as agreed by the parties at the time of such sale. 

 

2.2 RETAILER acknowledges receipt of, and shall at all times abide by, N+’s policies and instructions concerning Products (and modifications thereof) as communicated in writing from time to time by N+, including, without limitation, those relating to marketing, brand names and trademarks, warranties, servicing and repairs, orders, delivery, credit and payment. In addition, RETAILER acknowledges receipt of N+’s policy concerning the advertisement of Products at a Minimum Advertised Price (MAP). 

 

2.3 RETAILER shall provide warranty and technical information provided by N+ with the Product as it is sold by RETAILER. All Products are to be sold in the original retail packaging with all inclusions. RETAILER agrees not to alter or remove the packaging for the Products as provided by N+, including, as applicable and without limitation, installation guidelines, service instructions and warranty information. 

 

  1. RESALE / TRANSFER OF GOODS.

 

RETAILER SHALL RESELL THE PRODUCTS DIRECTLY TO END‐USER RETAILCUSTOMERS ONLY. RETAILER shall not sell, resell, transfer, distribute or otherwise give possession of any of the Products to any distributor, retailer, franchisee, wholesaler, or any other reseller, person, or entity other than an end‐user retail customer, or to any such entity RETAILER should reasonably have known was a distributor, retailer, franchisee, wholesaler or any other reseller and not an end‐user retail customer, unless preauthorized in writing by N+ in its sole discretion. For avoidance of doubt, the foregoing restriction prohibits, without limitation, the sale of Product by RETAILER to any entity operating an online marketplace which desires to purchase Product for resale to retail customers on the marketplace. 

 

  1. INTELLECTUAL PROPERTY‐TRADEMARKS AND COPYRIGHT.

 

4.1 RETAILER may only use Trademarks in strict accordance with reasonable policies and instructions, as communicated from time to time to RETAILER. 

 

4.2 RETAILER shall only use advertising materials, displays and images of Products that are approved in advance by N+. 

 

4.3 RETAILER agrees to use only those Trademarks that define or relate to the Products RETAILER is authorized to purchase and sell under the terms and conditions of these Terms. 

 

4.4 RETAILER shall not at any time alter Trademarks or the packaging of Products, use Trademarks for any purpose other than the promotion, advertising and sale of Products hereunder, or challenge the validity, or do or refrain from doing any act that might result in impairment of the value of any of the Trademarks. 

 

4.5 Upon the termination hereof and subject to a Sell‐off Period as defined in the Retailer Agreement, RETAILER shall cease and desist from the use of the Trademarks and any names, marks, brand names, logos or symbols similar thereto. 

 

4.6 N+ warrants that it has good title to the Trademarks of its own brand(s) and licensors’. 

 

  1. WARRANTY.

 

5.1 The warranty with respect to any Product sold to RETAILER and respective customers, is available on the retail website.  

 

5.2 N+ offers this warranty only to the original retail purchaser of any Product who acquired that Product directly from a N+ authorized RETAILER.  

 

5.3 Notwithstanding the foregoing, RETAILER shall have the right to return to N+ any Products that are, in N+’s sole judgment and discretion, determined to be non‐conforming in any respect in materials or workmanship. N+ shall, at its reasonable option, promptly replace such Products or refund, or credit, to RETAILER the purchase price paid by RETAILER for such Products together with any freight charges paid by RETAILER in connection therewith. 

 

  1. RETURNS POLICY

 

Besides any statutory revocation rights, N+ voluntarily provides for RETAILERS a 14-day return policy excluding Custom Orders subject to the Returns Process outlined below. 

 

Custom Orders include Limited Editions, all Road Bikes and components and Orders for Goods that have been altered in any way for the RETAILER at their request. Custom Orders are not eligible for cancellation and refund. 

 

To be eligible for the Returns Process RETAILERS are to notify N+ in writing complete the return of the Product within 14 days from the delivery date of the Product. All items for return must be in their original packaging, packed as received, in new condition, unused, unwashed, unaltered, and undamaged. If this can be complied with, N+ will issue a return shipping address (at N+’ discretion which will usually be the origin address of the Product unless agreed otherwise). Shipping is to be arranged with a reputable carrier and proof of shipping to the address provided by N+ to be shared with N+, subject to acceptance. Once the Product is returned to the agreed address it will be inspected and confirmed the Returns Process has been complied with, and N+ will proceed to issue a refund. 

 

N+ reserves the right to request photographic proof of the condition of the Product and to process any refund upon receipt and inspection of the Product. N+ also reserves the right to deduct an amount from the refund where the returned Product is not in the original new condition when received, as required under the Returns Process. Please note that refunds can take some time to process due to the operations of the payment facility providers. 

 

Any statutory revocation right remains unaffected. 

 

  1. FORCE MAJEURE.

 

Neither party shall be liable to the other party for any failure or delay of performance or other consequence due to: 

 

7.1 any act of God, action or inaction of government, civil disturbance, war or other cause beyond the affected party's control, or 

 

7.2 any strike or labor dispute, scarcity of supplies or utilities or disruption or unavailability of transportation, whether or not the affected party is capable of remedying the problem by a capital investment or payment not in the ordinary course of business. 

 

  1. SEVERABILITY.

 

If any term or provision of the Retailer Agreement, as applied to either party or any circumstance, for any reason shall be declared by a court of competent jurisdiction to be invalid, illegal, unenforceable, inoperative or otherwise ineffective, that provision shall be limited or eliminated to the minimum extent necessary so that the Retailer Agreement shall otherwise remain in full force and effect and enforceable, provided, however, that if any term or provision of these Terms pertaining to the payment of monies to N+ shall be declared invalid, illegal, unenforceable, inoperative or otherwise ineffective, N+ shall have the right to terminate the Retailer Agreement to which these Terms are included as provided herein. 

 

  1. EQUITABLE RELIEF.

 

Both parties agree and declare that legal remedies may be inadequate to enforce the provisions of the Retailer Agreement, including these Terms, and that equitable relief, including, but not limited to, specific performance and injunctive relief, may be used to enforce such provisions. 

 

  1. NO AGENCY.

 

Neither party is an employee, agent, partner or co‐venturer of the other party, and neither party has authority to assume any obligation binding on the other party. 

 

  1. CONFIDENTIALITY.

 

Both parties agree to hold all information of a proprietary and/or confidential nature (“Confidential Information”), which it obtains, from the other, in the strictest of confidence for so long as the same is not, or does not, other than by a breach of these Terms, become part of the public domain, and except as may otherwise be required by a court or other governmental authority of competent jurisdiction. Neither party may disclose to a third party, any term of the Retailer Agreement, these Terms, the Online Terms or any Confidential Information to which it becomes privy as a result of this relationship, without the other’s prior written consent. Said Confidential Information includes, but is not limited to, technical know‐how, business operations, financial condition, product designs, concepts and ideas, cost of products, inventory levels, forecasts, costs, names of vendors, trade secrets, properties, products, assets, liabilities, future prospects of N+ or any of its affiliates, joint venturers, suppliers, customers or licensees, marketing activities and plans, pricing information, future product, product development, product designs, customer lists, business activities and techniques, business or strategic plans, formulae, processes, designs, inventions and ideas, whether or not patentable, copyrightable or subject to protection as a trademark or trade name or other information of any kind, nature or description concerning any matters affecting or relating to N+ which derives economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use. Confidential Information includes any such information whether disclosed in documentary, oral, visual or tangible form and whether or not N+ expressly notifies RETAILER that any particular information is confidential. 

 

11.1 RETAILER shall keep Confidential Information safe and secure and not directly or indirectly divulge to anyone or use, or otherwise appropriate for its own benefit. RETAILER shall use all reasonable precautions to assure that all such Confidential Information is properly protected and prevented from unauthorized disclosure. 

 

11.2 If requested by N+, RETAILER shall promptly return any and all Confidential Information possessed by RETAILER to N+. 

 

  1. WAIVER, MODIFICATION AND AMENDMENT.

 

No modification, amendment or waiver of any of the provisions contained in these Terms, or any future representation, promise or condition in connection with the subject matter of these Terms, shall be binding upon any party to these Terms unless made in writing and signed by a duly authorized representative or agent of such party. The failure by either party to enforce, or the delay by either party in enforcing, any of said party's rights under these Terms shall not be construed as a continuing waiver of such rights, and said party may, within such time as is provided by the laws established by any government with applicable jurisdiction, commence appropriate suits, actions or proceedings to enforce any or all of such rights. A waiver by either party of a default in one or more instances shall not be construed as a waiver in other instances. 

 

  1. ARBITRATION.

 

13.1 Except as otherwise expressly provided herein, any dispute or controversy between the parties which arises out of or relates to the Retailer Agreement or any other agreement between the parties, including, without limitation, any claim based on alleged illegality or fraud in the inducement of the Retailer Agreement or any claims based on alleged violations of state or federal antitrust, unfair competition or unfair business practices laws, shall be resolved exclusively by arbitration in accordance with this Section. The arbitration shall be conducted exclusively in the County of Orange, State of California, and shall be initiated by written notice from one party to the other specifying the controversy or dispute and the claims and damages of the noticing party, and demanding arbitration thereof. The parties hereby consent to such exclusive forum and venue and waive any objections thereto. Such arbitration shall be decided by a single arbitrator at JAMS/Endispute, who will act as the sole, neutral arbitrator. If, for any reason, such appointment procedure is unavailable for reasons beyond the parties’ control, or if either party fails to comply with such procedures, then a single arbitrator shall be selected in the manner provided by the California Code of Civil Procedure Section 1281.6. 

 

13.2 Except as provided in subsection 12.3, the arbitrator so appointed shall have the power to make any interim orders, including, without limitation, discovery orders, and to award any relief, including, without limitation, monetary damages, reformation, rescission, and declaratory relief as may be permitted by law. Discovery may occur in arbitration as provided in the California Code of Civil Procedure for civil actions generally. The hearing date shall commence no longer than six (6) months after the arbitration is commenced, which period may be extended only upon determination by the arbitrator that additional time is necessary, in which case, the arbitration will be concluded as soon as practicable thereafter. This arbitration provision shall be self‐executing, and an award may be entered against a party who fails to appear at a hearing duly noticed in accordance herewith. The decision of the arbitrator shall be final and binding upon the parties, and may be entered and enforced as a final judgment in accordance with California law in any court of competent jurisdiction. 

 

13.3 Notwithstanding the foregoing, the request by either party for preliminary or permanent injunctive relief, whether prohibitive or mandatory, or provisional relief such as writs of attachments or possession shall not be subject to arbitration and may be adjudicated by any court of competent jurisdiction. 

 

13.4 Notwithstanding anything to the contrary set forth in these Terms or elsewhere in the Retailer Agreement, this Section 12 and any arbitration conducted hereunder, shall be governed by the United States Arbitration Act (U.S.C. Section 1, et seq.), (the “Act”) except only for the application of California Code of Civil Procedure Section 1281.6 pursuant to subsection 12.1 above. The parties hereby expressly agree that the Act shall also apply to all issues relating to the enforceability of this Section, including, but not limited to, the authority of a court to refuse to compel arbitration. The parties agree that Section 1281.2 of the California Code of Civil Procedure, to the extent that it may authorize a court to refuse to compel arbitration, does not apply to these Terms. The parties acknowledge that the transactions contemplated by these Terms involve commerce, as defined in said Act. Each party shall bear its own costs of arbitration. This Section 12 shall survive the termination or expiration of these Terms. 

 

13.5 It is understood that this Section 12 constitutes a waiver of a right to a jury trial by any party to the Retailer Agreement. 

 

  1. JURISDICTION.

 

All disputes between the parties, which are not subject to arbitration and which are not otherwise resolved, shall be resolved exclusively in federal court for the Central District of California, Southern Division. If the controversy fails to meet the requirements of federal jurisdiction, then the dispute shall be resolved exclusively in a court of competent jurisdiction in the County of Orange, State of California. The parties hereby consent to such exclusive jurisdiction and venue, waive any objections thereto and agree to appear in any such action upon written notice thereof. 

 

  1.  WAIVER OF JURY.

 

N+ and RETAILER waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross‐complaint in any action, proceeding and/or hearing brought by either N+ against RETAILER or RETAILER against N+ on any matter whatsoever arising out of, or in any way connected with, the Retailer Agreement, including these Terms or the Online Terms, the relationship between N+ and RETAILER, any claim of injury or damage or the enforcement of any remedy under any law, statute or regulation, emergency or otherwise, now or hereafter in effect. 

 

  1. NOTICES.

 

All notices, requests, demands, and other communications required to or permitted to be given under these Terms shall be in writing and shall be conclusively deemed to have been duly given (1) when hand delivered to the other party; or (2) after the same has been delivered via United States certified mail return receipt requested postage prepaid and addressed to the parties as set forth below; or (3) the next business day after the same have been deposited with a national overnight delivery service reasonably approved by the parties (Federal Express and D.H.L. WorldWide Express being deemed approved by the parties), postage prepaid, addressed to the parties.   

Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this Paragraph, and that any person to be given notice actually receives such notice. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Paragraph by giving the other party written notice of the new address in the manner set forth above. 

 

  1. LIMITATIONS ON INTERPRETATION.

 

The Retailer Agreement has been negotiated between unrelated parties who are sophisticated and knowledgeable in the matters contained in these Terms and who have acted in their own self‐interest. In addition, each party represents to the other that it has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law, including Section 1654 of the California Civil Code, as well as any other statute, law, ordinance, or common law principle, or other authority of any jurisdiction of similar effect, or legal decision that would require interpretation of any ambiguities in the Retailer Agreement, including these Terms, against the party who has drafted it is not applicable and is hereby waived. The provisions of the Retailer Agreement shall not be interpreted or construed against any party to the Retailer Agreement because that party or any attorney or representative for that party drafted these Terms or any other part of the Retailer Agreement or participated in the drafting of these Terms or any other part of the Retailer Agreement. 

 

  1. HEADINGS.

 

Paragraph and subparagraph headings are for ease of reference only and shall not have any effect upon the construction of these Terms or any of the terms or provisions hereof or of the Retailer Agreement. 

 

  1. MEANING OF CERTAIN

 

19.1 The terms “includes” and “including” shall not be construed to imply any limitation unless the context expressly indicates otherwise. The term “or” is inclusive and means “and/or” unless the context expressly indicates otherwise. 

 

19.2 Unless otherwise stated, any reference contained in these Terms to a Paragraph, Section, or Subsection refers to the provisions of these Terms. 

 

19.3 Wherever the context may require, any pronouns used in these Terms shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns or pronouns shall include the plural and vice versa. 

 

  1. SURVIVAL.

 

Notwithstanding any provision to the contrary, the rights and obligations set forth in Sections 3, 4, 5, 10, 12, 13 and 14 shall survive termination or expiration of these Terms. 

 

  1. LIMITATION OF LIABILITY.

 

N+ shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to loss of profits, revenue, or data, arising out of or related to the sale or use of the Products by RETAILER or its customers. RETAILER acknowledges that N+’s total liability under this Agreement, regardless of the cause of action, shall not exceed the net amount paid by RETAILER for the specific Products giving rise to the claim. 

 

  1. INDEMNIFICATION.

 

RETAILER agrees to indemnify, defend, and hold harmless N+, its affiliates, officers, employees, and agents from and against any claims, liabilities, damages, losses, costs, or expenses, including reasonable attorney’s fees, arising from or related to: 

 

Any unauthorized use, alteration, or modification of the Products by RETAILER or its customers. 

 

Any misrepresentation, negligence, or breach of this Agreement by RETAILER. 

 

Any violation of applicable laws, regulations, or third-party rights in connection with RETAILER’s sale or marketing of the Products. 

 

  1. PRIVACY AND DATA HANDLING.

 

RETAILER shall comply with all applicable data protection and privacy laws in its handling of customer information obtained through the sale of N+ Products. RETAILER shall maintain the confidentiality of all customer data and shall not share, sell, or misuse such information. Any data breach affecting RETAILER must be reported to N+ within 24 hours of discovery, along with remedial actions taken.