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If you will be reselling, loaning, or leasing products, services, or software purchased from Direct Supply (either as stand-alone products or incorporated into a package for your customers), you are defined as a “Reseller” and these “Reseller Specific Terms” apply to your purchase in addition to, and not in the place of, the Standard Terms. Terms not defined here shall have the meaning from the Direct Supply® Standard Terms & Conditions of Purchase (“Standard Terms”).
Scope. Reseller is acting as a non-exclusive distributor of Products which DSI is permitted to resell to third parties. DSI reserves the right to offer, promote, advertise, market and sell Products directly and/or indirectly to customers and to appoint other resellers to sell the Products to customers without compensation to the Reseller. In general, DS Branded Products are not available without our approval.
Staff Responsibility. Reseller shall be responsible for ensuring its employees, agents, and/or contractors (collectively, “Staff”) understand and abide by the terms of this Agreement. Reseller shall be responsible for the action and inaction of its Staff.
General Obligations. Reseller shall conduct business in a way that reflects favorably on DSI, its suppliers and the Products; promptly notify DSI and provide DSI with information about sales, marketing, forecasting, customer service, account and quality matters with respect to the Products and Reseller’s customers and other information as DSI may reasonably request; conduct such coordination, training and customer service obligations as is necessary to support the delivery, installation and ongoing use/lease of the Products by Reseller’s customer(s); provide all post-sale and pre-sale customer service to its customers; and maintain Products in accordance with manufacturer’s owner manual and maintenance programs (as applicable).
Marketing Efforts and Restrictions. Reseller shall not engage in any marketing or make any statements, representations, promises, or offers which are inconsistent with or beyond the materials and representations provided in writing by Direct Supply. Reseller may not include or reference Direct Supply, its subsidiaries, businesses, brands, suppliers, or customers in any marketing, sales or other materials unless pre-approved in writing by an officer or legal counsel of Direct Supply. Without limiting the foregoing, Reseller may not use DSI, “Direct Supply”, the product manufacturer or any Direct Supply trademark or tradename as part of its corporate name, website address, or any products, software or services Reseller provides. Additionally, Reseller may not offer, market or sell products purchased from Direct Supply on any website without Direct Supply’s prior written approval.
Product Materials. Reseller shall ensure that all owner manuals, labeling, and other similar documentation (“Product Materials”) that are provided with products are passed along to its customers in the same quantity and quality as provided to Reseller. TO THE EXTENT ANY PRODUCTS INCLUDE A CALIFORNIA PROP 65 NOTICE, RESELLER WARRANTS THAT SUCH NOTICE SHALL BE PROVIDED TO RESELLER’S CUSTOMER(S) IN ACCORDANCE WITH APPLICABLE LAW. Reseller acknowledges and agrees that the content of all Product Materials are the property of DSI or its licensors. Reseller shall not alter, unlawfully copy, or otherwise infringe on Product Materials, whether or not such Product Materials are marked with a copyright notice. In the event that Reseller desires to have Product Materials translated into a language other than English, Reseller must first obtain written authorization from Direct Supply.
Customer Contacts and Restrictions. Reseller will promptly contact us should Reseller learn of any safety, regulatory, or customer service issues related to products purchased from us. Reseller’s representatives will be responsible for resolving any service issue or customer request associated with the products. Reseller acknowledges and agrees that in the event Reseller’s customer contacts DSI for assistance, we may refer the customer to the Reseller for resolution.
Indemnification. Reseller agrees to indemnify, defend and hold harmless Direct Supply, its officers, directors, employees, agents, subsidiaries, and Product suppliers and logistics providers from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses, of whatever form or nature, including attorney’s fees and other costs of legal defense (each a “Loss”), that they or any of them may sustain or incur arising from or related to any act(s) or omission(s) of Reseller, its officers, directors, Staff, customers or agents, including, but not limited to: (a) breach of any of the provisions of the Terms; (b) negligence or intentional conduct; (c) representations or statements not specifically authorized by DSI, including warranty statements from Reseller to its customers; (d) translations of or failure to translate Product Materials; (e) violation of any applicable law, regulation or order; and/or (f) any export, import, duties, taxes, or tariffs of the products.
Exclusions. Certain products, services (e.g., extended warranties, installation, haul-away), and/or certain software services (e.g., DS Smart services) are restricted and not available to Resellers unless pre-approved in writing (collectively, “Restricted Offerings”). If you attempt to purchase a Restricted Offering, your order will not be fulfilled for such Restricted Offering and we will attempt to contact you by phone or email to inform you of this. You understand and agree that we may cancel any order which includes a Restricted Offering or based on our reasonable suspicion of fraud. We also reserve the right to update our list of Restricted Offerings at any time with or without notice to you.
Shipment and Export of Products. Reseller is solely responsible for shipment of products to its customers; Reseller may not have products shipped directly by DSI to its customers. If the Documentation indicates that pricing is for bulk shipping, products will not be split shipped at Reseller’s request. Reseller shall ensure products and Product Materials are compliant with all applicable laws and regulations related to the products due to their use by Reseller’s customers.
Reseller Warranty & Software License. DSI passes on to the Reseller, to the fullest extent DSI is allowed, the Product manufacturer’s product warranty and standard user software license for all new Products.
Product Recalls & Customer Service. DSI will notify Reseller of any recall of products purchased by Reseller if and to the extent DSI is made aware of such recall by the product manufacturer. Reseller shall have full responsibility for notifying its customers of such recall in a timely manner, and shall promptly take additional steps related to such recall, as DSI may reasonably request. Reseller agrees to provide DSI with prompt written notice of any death, severe injury, malfunction, or customer service issue involving a product.
Reseller Insurance. Reseller represents that it has and will maintain at its sole expense the following insurance (“Insurance Coverage”) during and for three years following the termination of this Agreement: a) general commercial and product liability coverage with minimum limits of $2,000,000 each occurrence, $5,000,000 aggregate and $1,000,000 in Personal and Advertising Injury Coverage (Pers. & Adv. Inj.) naming Direct Supply, Inc. and its officers and employees as an additional insured on a primary basis.; b) workers’ compensation coverage required by law; and c) automobile liability insurance for all autos with a minimum single limit of $1,000,000 for bodily injury and property damage. Reseller agrees to furnish DSI with a current certificate of insurance upon placing an order for products and DSI will be named as an additional insured on all Insurance Coverage. A waiver of subrogation endorsement is required for all policies. No deductibles or self-insured retentions may exceed $25,000 without our written consent.
Discounts and Reseller Obligations. In addition to its obligations in the Government Funding & Access Records section of the Standard Terms, if Reseller is not the “buyer” of Covered Products to which any rebate or portion of any rebate relates (as the term buyer is used in the safe harbor regulations) Reseller: (x) acknowledges that it is acting as the agent for the buyer in receiving the rebate or portion thereof, (y) will promptly remit each such rebate, or portion of such rebate, to the buyer, and (z) will advise the buyer of its obligations as described in (a) through (c) herein.
Professionalism and Compliance. Reseller represents and agrees that it and its Staff will comply with all applicable laws, rules and regulations and the products, services and/or software provided hereunder including, without limitation, the Social Security Act, the U.S. Foreign Corrupt Practices Act, antitrust laws, local employee health and safety laws, and any applicable trade restrictions, export controls, and anti-boycott laws and regulations. Reseller further represents that it will not pay, offer, promise to pay, or authorize payment of any bribe or other unlawful benefit or remuneration to any customer, government official, political party official, candidate for office, or representative of any public international organization to obtain or retain businesses or to secure any improper advantage. Reseller certifies that it is not and has not been subject to any investigation, prosecution, litigation, conviction, assessment or finding of liability by a governmental authority involving the unlawful or negligent manufacture, import, or export of any products, materials or software; the unlawful treatment or employment of employees including without limitation any children; or any other law, regulation or treaty which is materially related to the Reseller’s obligations under these Terms. DSI is an affirmative action and equal opportunity employer. Only to the extent applicable with respect to any U.S. based employees, Reseller agrees to comply with the provisions of Executive Order 11246 as amended, 41 C.F.R. §60-741 (Disabled Persons) and § 60-250 (Veterans), and all relevant rules, regulations, and orders of the U.S. Secretary of Labor. Reseller represents and certifies that neither it, nor its owner(s), directors, officers, employees or any subcontractor retained by it is subject to sanctions under either the U.S. Medicare or Medicaid program, or is disbarred, excluded, suspended, or otherwise excluded from or determined to be ineligible to participate in any U.S. agency or program. Reseller will promptly notify DSI of any government investigation in which it becomes involved.
Termination. Unless as otherwise specifically addressed in the Documentation, the transaction or relationship, as applicable, may be terminated by either party, effective immediately upon notice, if the other party becomes the subject of any bankruptcy proceedings, receivership, or other insolvency proceedings or makes any assignment or other arrangement for the benefit of its creditors, or otherwise ceases to do business. DSI may also terminate the transaction or relationship, as applicable, at its option and in its good faith opinion, upon written notice to Reseller if: (a) Reseller sells, assigns, delegates or transfers any of its rights or obligations under the Documentation without DSI’s prior written approval; (b) there is a material change in the ownership or management of Reseller; (c) Reseller offers or attempts to sell, lease or market Products to customers outside the United States; (d) Reseller represents, contracts or engages third parties that would, in DSI’s opinion, create a conflict with Reseller’s obligations under this Agreement; or (e) Reseller is convicted of a crime or fraud, violates DSI’s policies or otherwise acts in a manner reasonably determined by DSI to be detrimental to DSI’s best interests and fails to cure the same after five (5) business day’s written notice. DSI may suspend its performance under the transaction or relationship, as applicable, while it promptly and in good faith investigates if it suspects that Reseller has violated a law, engaged in fraud or violated DSI’s policies. Reseller agrees that all of its obligations under the transaction or relationship, as applicable, including without limitation, making timely payments on DSI’s invoices are essential and reasonable requirements and that any breach by Reseller of such obligations shall constitute “good cause” for termination. Upon expiration or termination of the Documentation, Reseller will immediately stop all sales, marketing and other activities related to the Products except as required by law, as requested in writing by DSI, or with respect to pending orders which DSI has accepted prior to the date of expiration or termination. Reseller’s obligations to pay DSI for delivered products and performed services shall survive expiration or termination of the transaction or relationship, as applicable,for any reason. The Customer Contacts and Restrictions, Indemnification, Product Recalls & Customers Service, Reseller Insurance, Professionalism & Compliance, and Termination clauses shall survive any termination or expiration.
DS Branded Products. All Products which are sold under a Direct Supply brand (including but not limited to those on our website identified as Brand/Manufacturer “Direct Supply”) (collectively, “DS Branded products”) are subject to the following terms:
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