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1. Purchase Orders. Vendor has
no obligation with respect to any order until accepted or confirmed by Vendor in
writing. The parties may use standard business forms or other communications for
ordering Products, but use of such forms is for convenience only and does not
alter the provisions of this Application. In the event of any conflict between
this Agreement and the terms and conditions of any purchase order or similar
document pursuant to which Customer entered into this Agreement, the terms and
conditions of this Agreement shall control.
2. Credit Terms. Unless
otherwise notified by Vendor in writing, all payment terms are net 30 days from
the date of the invoice for the Products. Vendor may, in its discretion,
terminate the extension of credit to Customer at any time for any reason.
3. Security Agreement. In
consideration of the extension of credit to Customer, Customer, on behalf of
itself and its affiliates, grants to Vendor a purchase money security interest
in all the Products purchased by Customer and its affiliates from Vendor
(“Collateral”) to secure their payment and performance obligations to Vendor,
including those under this Application or any purchase order or invoice.
Customer authorizes Vendor to file any documents and take all actions that
Vendor may consider appropriate to perfect and continue the security interest in
the Collateral and realize upon the security interest. Customer agrees to comply
with all of Vendor’s requests to perfect, maintain and continue the security
interest in the Collateral and to confirm such interest. This provision is not
applicable if the Customer opts for the Drop-Ship option.
4. Covenants. Customer shall (a)
immediately pay any indebtedness when due, (b) pay Vendor’s costs of collecting
the indebtedness, or realizing on the Collateral, and any expenditure of Vendor
pursuant thereto including reasonable attorneys’ fees and expenses, (c) pay any
deficiency after collection or realization on the Collateral,.(c) notify Vendor
with at least 15 days prior notice of any changes in Customer’s legal name,
state of formation or principal place of business, (d) not misuse or abuse the
Collateral or allow it to deteriorate, (e) except with respect to sales to
Customer’s customers in the ordinary course of business, sell, transfer or
encumber the Collateral in any manner, (f) cause the Collateral to be maintained
at any location other than Customers premises, (g) not to take any actions with
respect to the Collateral that conflict with the rights granted to Vendor in
5. Nonpayment. If an invoice is
not paid in full when due, Customer agrees to pay a late charge of 18% per annum
(or the maximum rate allowed by law if less) on the past due amount from the
date due until paid. If Customer has a past due account, then in addition to any
other right or remedy available to Vendor at law or equity, Vendor may at its
option: (a) terminate Customer’s credit, (b) cancel any unfilled orders, and/or
(c) discontinue deliveries until the account is brought current and Vendor is
assured of Customer’s ability to remain current in its accounts.
6. Freight. Freight cost shall
be the responsibility of the Customer, F.O.B. shipping point. The Customer will
pay any costs incurred with mis-shipments, including but not limited to, routing
guide violations. Prior to the date of purchase, the risk of loss to the
products purchased shall be on Vendor. The risk of loss shall pass to Customer
on the date of purchase.
7. Insurance. The Customer shall
maintain, at its own expense, all necessary insurance, including (without
limitation) workers compensation, disability, unemployment insurance, public
liability, product liability, property liability, property damage and automobile
liability insurance against all losses, claims, demands, proceedings, damages,
costs, charges and expenses for injuries or damage to any person or property
arising out of or in connection with this Agreement or the Product, which are
the result of the fault or negligence of Customer.
8. Defaults. If Customer (a)
makes a false statement on the Application, (b) breaches its covenants or
defaults in any of its obligations hereunder, including failure to make payments
when due, or (c) or any guarantor of Customer’s obligations under this
Application becomes insolvent, files a petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it, then Customer shall be in
default under this Application and all sums owed by Customer shall become
immediately due and payable in full without further notice or demand, and Vendor
shall be entitled to exercise any and all remedies available to it at law or in
equity, including, without limitation, its rights as a secured creditor of
Customer. Without limiting the generality of the foregoing, in the event of a
default, at Vendor’s discretion, (i) Customer agrees to put Vendor in possession
of the Collateral on demand, (ii) Vendor may enter Customer’s premises and take
possession of the Collateral without notice or demand and without legal
proceedings, (iii) at the request of Vendor, Customer will assemble the
Collateral and make it available to Vendor at a designated location, and (iv)
Customer agrees that a period of 10 days from the date notice is sent, shall be
a reasonable period of notification of a sale or other disposition of the
9. Venue. The parties
irrevocably submit to venue and exclusive personal jurisdiction in the federal
and state courts in Santa Clara, California, for any legal action, and waive all
objections to jurisdiction and venue of such courts.
10. Dispute Resolution. The parties will initially attempt to resolve
any claim or controversy arising out of this Agreement through negotiations or
non-binding mediation. Any dispute that cannot be amicably resolved within 90
days of the date of the initial notice of dispute may be submitted to the courts
in Santa Clara County for resolution.
11. Rejected Goods. Customer agrees
to notify Vendor in writing within seven (7) business days of receipt of
Products if there are any defects, overstock, damages, or non-conforming goods
(“Rejected Goods”). Customer will save the Rejected Goods for inspection by
Vendor. If there are any Rejected Goods, Customer’s sole and exclusive remedies
are the replacement of the Rejected Goods or the refund of payments for such
Products, as determined by Vendor in its sole and absolute discretion. The
Customer’s failure in informing Vendor of any Rejected Goods within 7 days will
constitute an acceptance of the Products by the Customer.
12. Product Recall. In the event that a Product suffers a defect that
renders it unsafe, fails to meet published specifications or is likely to cause
any injury, damage or harm of any description (“Affected Product”), Vendor shall
make best efforts to ensure that the requirements of any relevant Regulatory
authority are fully complied with and that Affected Product is dealt with in
accordance with any relevant consumer and/or safety laws and requirements and
that Customer is notified of the recall within the appropriate time. The
Customer cannot make any public statements regarding the Product Recall without
obtaining Vendor’s prior written approval.
13. Limitation of Liability. EXCEPT FOR WARRANTY OF TITLE, Vendor
MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE). Vendor WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR
SPECIAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR
PROFITS), INCIDENTAL OR PUNITIVE DAMAGES EVEN IF Vendor SHALL HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
14. Indemnification. The Customer officially agrees to indemnify,
defend, and hold harmless Vendor, its officers, employees and affiliates, and
their respective successors from any liability, loss, cost, damage, expense, or
payment (including reasonable attorney fees) incurred by Customer for its
failure to pay tax bills, third party shipping invoices, custom house brokerage
charges, duties, fuel surcharges, chargeback fees, return check fees, fraudulent
orders, or customer refunds.
15. No Assignment. Except as provided below, neither party hereto may
assign its rights or delegate its obligations hereunder without the prior
consent of the other party, such consent not to be unreasonably withheld. Any
such purported assignment or delegation, in the absence of such consent, will be
void and without effect. A change in Customer’s form or organization,
combination or merger with another entity by Customer shall be deemed an
assignment requiring Vendor’s prior written approval. Vendor may assign this
Application (or any of its rights and obligations under this Application or any
purchase order): (a) to any of its affiliates, or (b) in connection with any
merger, consolidation, reorganization, sale of all or substantially all of its
assets or any similar transaction.
16. Notice. Notices under this Application are sufficient if given by
nationally recognized overnight courier service, certified mail (return receipt
requested), facsimile with electronic confirmation or personal delivery to the
other party at the address provided on the front of this Application.
17. Confidentiality. In the performance of this Agreement, each party
may have access to confidential, proprietary or trade secret information owned
or provided by the other party ("Confidential Information"). All Confidential
Information supplied by one party to another pursuant to this Agreement shall
remain the exclusive property of the disclosing party. The receiving party shall
use such Confidential Information only for the purposes of this Agreement and
shall not copy, disclose, convey or transfer any of the Confidential
18. Intellectual Property Rights. Customer may include Vendor’s
trademarks, service marks and trade names in its advertising and promotion of
recognizes the other party’s ownership and title to certain trademarks, service
marks, and trade names, whether or not registered. Neither party shall acquire
any rights in the trademarks, service marks or trade names of the other nor will
it do or suffer to be done any act or thing that could in any way impair the
rights of the other party in and to such mark(s) and name(s). Title to
Proprietary Information, including (without limitation) all ownership rights to
patents, copyrights, trademarks, service marks and trade secrets in connection
therewith, shall be the exclusive property of Vendor.
19. Invalidity. If any part of this Application is found invalid or
unenforceable, that part will be enforced to the maximum extent permitted by law
and the remainder shall remain in full force. A party does not waive any rights
by failing to insist on compliance with any of the terms of this Application or
by failing to exercise any right hereunder. Any waivers granted hereunder are
effective only if recorded in a writing signed by the party granting such
20. Force Majeure. Neither party shall be responsible or liable in any
way for failure or delay in carrying out the terms of this Application resulting
from any cause or circumstances beyond its reasonable control, including but not
limited to, fire, flood, war, labor difficulties, interruption of transit,
inability to obtain materials or supplies, accident, explosion, civil commotion,
and acts of any governmental authority.
21. Entirety. This Application together with the invoices and any
purchase order constitute the complete and final agreement of the parties and
supersede the parties ‘prior agreements, understandings and discussions relating
to the subject of this Application. Except as expressly provided herein, no
modification of this Application is binding unless it is in writing and signed
by Vendor and Customer.
22. Drop-Ship Option. The Customer has the option to select Vendor’s
drop-ship option, which thereby appoints Vendor as being responsible for
shipping the products directly from its facilities to the Recipients.
a. Unless the parties have agreed to
otherwise in writing, Vendor shall select the best and most economical carrier,
at its own discretion, to ship the products, however, the carrier shall not be
construed an agent of Vendor.
b. Unless otherwise agreed in writing
any customs or import fees associated with Vendor shipping the products using
this Drop-ship option shall be the responsibility of the Customer.
c. The Customer will bear the cost of freight and risk of loss.
d. The Vendor will ship the order
within 48 hours of receiving the Recipients’ information. In case a Recipient
cancels an order, the Customer is responsible of timely notifying the Vendor.
However, in no case shall the Vendor be obligated to make any modifications or
stop shipment once the product has been shipped out or is in the process of
being delivered to the Recipient.