AUTHORIZED RESELLER POLICY

This Kentucky Equine Research, Inc. Authorized Reseller Policy (the “Policy”) applies to all Authorized Resellers (“Resellers”) of Kentucky Equine Research, Inc. (“KER”) products (the “Products”) in the United States. The Policy is effective immediately. By purchasing Products from KER or an Authorized KER Distributor for retail sale, you (“Reseller”) agree to adhere to the following terms and conditions.

1. Manner of Sale. Reseller is authorized to offer Products purchased from an Authorized KER Distributor for retail sale in accordance with the terms herein. Sales in violation of these Terms are strictly prohibited and may result in KER’s immediate revocation of Reseller’s status as an Authorized Reseller, in addition to other remedies. Products sold to unauthorized persons or through unauthorized channels, including unauthorized Internet sites, shall not be eligible for certain KER promotions, services, and/or benefits, including, unless prohibited by law, coverage under any KER Product guarantees.

2. Product Inspection. Reseller shall inspect Products upon receipt and during storage for damage, defect, evidence of tampering, or other non-conformance. Reseller must also confirm that product seals have not been broken. If any defect is identified, Reseller must not offer the Product for sale and must report the defect to KER at orders@ker.com. Furthermore, Reseller shall inspect inventory regularly for expired or soon-to-be expired Products and shall remove those Products from inventory. Reseller shall not sell expired Products.

3. Product Storage and Handling. Reseller shall store the Products in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional storage guidelines specified by KER.

4. Alterations Prohibited. Reseller shall sell Products in their original packaging, with all seals intact. Relabeling, repackaging (including the separation of bundled products or the bundling of products), and other alterations to the Products or their packaging is prohibited. Reseller is prohibited from tampering with, defacing, or otherwise altering serial numbers, UPC codes, lot or batch codes, or other identifying information on Products or packaging. Removing, translating, or modifying the contents of any label or literature on or accompanying the Products is also prohibited.

5. Recall and Consumer Safety. To ensure the safety and well-being of the end-users of the Products, Reseller shall communicate all safety information to consumers and cooperate with KER with respect to any Product recall.

6. Customer Service. Reseller must be able to accurately describe, demonstrate, and sell each Product kept in inventory and to advise end-user customers on how to use the Products safely and properly. Reseller must be available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly. Reseller must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of KER.

7. Consumer Confusion. Reseller is prohibited from advertising, marketing, displaying, or demonstrating non-KER products together with KER Products in a manner that would create the impression that the non-KER products are made by, endorsed by, or associated with Kentucky Equine Research.

8. Compliance with Applicable Laws. Reseller shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale and marketing of the Products.

9.1. KER owns all proprietary rights in and to the Kentucky Equine Research and Products’ brand, name, logo, trademarks, service marks, trade dress, patents, copyrights, and other intellectual property (the “KER IP”). Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the KER IP solely for purposes of marketing and selling the Products as set forth herein, and this license shall cease immediately upon termination of your Authorized Reseller status. KER may review, approve, and/or reject, in its sole discretion, Reseller’s use of the KER IP at any time. All goodwill arising from Reseller’s use of the KER IP shall inure solely to the benefit of KER.
9.2. You acknowledge and agree that the KER IP is valuable intellectual property belonging to KER and are and shall remain the sole and exclusive property of KER. You agree not at any time to contest the validity of the KER IP or claim adversely to KER any right, title or interest in or to the KER IP. You must properly mark and identify the KER IP on all correspondence, advertising or promotion materials and other places where such KER IP appear. You must immediately cease using or displaying the KER IP upon termination of your relationship with KER.
9.3. You, prior to any use of the KER IP, shall submit to KER for its approval all advertising, artwork, promotional, packaging and descriptive materials to be used by you in connection with the Products. No changes in approved advertising, artwork, promotional, packaging and descriptive materials shall be made by you without first obtaining the further approval of KER.
9.4. You agree that all advertising, artwork, promotional, packaging or descriptive materials referring to the KER IP or KER’s Products shall be in such form as to not impair or endanger KER’s ownership of or right to use the KER IP in any state or country or the validity of its registrations of the KER IP. You agree that whenever any of the KER IP are used in advertising, artwork, promotional, packaging or descriptive materials, the status of registered KER IP shall be indicated by use of all necessary and appropriate trademark registration notices.
9.5. You shall not, during the time you are a reseller for KER or at any time thereafter, manufacture, distribute or sell products other than KER’s Products under marks, trademarks, servicemarks, labels, markings, packaging, advertising or promotions deceptively or confusingly similar to those used or owned by KER.
9.6. You shall not, during the time you are a reseller for KER or at any time thereafter, analyze or reverse engineer any of KER’s Products for purposes of determining KER’s formulas or creating a competing, alternative or replacement line of products substantially similar to KER’s Products or based, in whole or in part, on KER’s formulas.

10. Termination. If a Reseller violates any of these Terms, KER reserves the right to terminate Reseller’s status as an Authorized Reseller in addition to all other available remedies. Upon termination of Reseller’s status, Reseller shall immediately cease selling the Products, representing itself as an Authorized Reseller of KER Products, and all use of anything that may give the impression that Reseller is an Authorized Reseller of KER Products or has any affiliation whatsoever with KER.

11. Availability of Injunctive Relief. If there is a breach or threatened breach of paragraphs 1 through 10 of this Policy, it is agreed and understood that KER shall have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in this Policy of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Policy. No failure, refusal, neglect, delay, waiver, forbearance, or omission by KER to exercise any right(s) herein or to insist upon full compliance by Reseller with Reseller’s obligations herein shall constitute a waiver of any provision or otherwise limit KER’s right to fully enforce any or all provisions and parts thereof.

12. Warranties.

12.1. LIMITED WARRANTY: KER warrants that its Products will be free from manufacturing defects until the date indicated on the product label (the “Use by” or “Best by” date). Your sole and exclusive rights and remedies for any breach of KER’s warranties are limited to a refund of the price or replacement of a defective Product as provided in KER’s then applicable refund or replacement policies.

12.2. WARRANTY DISCLAIMERS: Notwithstanding the foregoing, all of KER’s representations or warranties about its products are TERMINATED, NULL AND VOID immediately for any Product that is not stored according to the manufacturer’s directions.

Except as expressly set forth in this Policy, KER makes no other representations or warranties, express or implied, about its Products. KER disclaims all other warranties, express or implied, about its Products, including without limitation disclaiming any implied statutory warranties of sale, implied warranties of merchantability or fitness for a particular purpose or non-infringement, or any warranties arising from course of performance, dealing, usage or trade.

12.3. SOLE AND EXCLUSIVE REMEDIES: Your sole and exclusive rights and remedies for any breach of KER’s warranties are limited to a refund of the price, or replacement, of the defective Product as provided in KER’s then applicable refund or replacement policies. If any remedy against KER under this Policy is deemed to have failed of its essential purpose or if KER is found liable for any other reason, then KER’s maximum total liability, regardless of the form of action, shall not exceed the price of the products to which the breach applies.

12.4. LIMITATIONS OF LIABILITY. KER is not liable or responsible for any losses, damages, liabilities or injuries of any kind to the Product itself, any other property, any horse or any person, arising out of or resulting from the storage, use or application of Products from open containers not used and stored according to the manufacturer’s directions, or that was allowed to get moist or wet or damaged by rodents or other pests. In no event shall KER’s liability of any kind include any special, indirect, incidental, consequential, exemplary, lost profits, loss of use or punitive damages arising out of or resulting from use or application of its Products, however caused or on any theory of liability, whether in contract, tort (including negligence), strict liability or otherwise, even if KER knew or should have known of the possibility of such damages or losses.

12.5. NO OTHER TERMS: KER does not consent to, and hereby objects to, any terms of any purchase order, acknowledgement or other communication from you that are additional, different or inconsistent with the terms of this Policy, and no such additional, different or inconsistent terms shall become a part of the parties’ agreement, unless KER expressly agrees otherwise in writing.

13. Modification. KER reserves the right to update, amend, or modify this Policy at any time.

14. Miscellaneous. This Policy and any dispute arising under it shall be governed by, construed, and enforced in accordance with the laws of the State of Kentucky, without regard to its choice of law rules. In the event of a dispute over the terms or performance under the Policy, Reseller expressly submits to personal jurisdiction and venue in the federal or state courts in Kentucky. If any provision of the Policy is held contrary to law, the remaining provisions shall remain valid.

15. Unilateral Minimum Advertised Price Policy. KER has a Unilateral Minimum Advertised Price Policy (“UMAP Policy”) that applies to all resellers of KER Products located within the United States. This paragraph is intended to inform you of the UMAP Policy. It does not constitute consideration for any agreement between you and KER, and does not separately constitute an agreement between you and KER regarding the price you will charge your customers for the Products. KER does not seek, nor will it accept, from Reseller any assurance of compliance with the UMAP Policy.