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SAXX Canada Dealer GuidelinesUpdated 2 months ago

Click here to download the SAXX Canada Dealer Guidelines.

SAXX Underwear Co. Ltd. and SAXX Holdings Inc. (collectively, “SAXX”) hereby establishes the following SAXX Underwear Dealer Guidelines (“Guidelines”), which apply to all dealers in Canada (“Dealers”). For SAXX to effectively implement its marketing and distribution strategy, and to ensure a quality customer experience, all Dealers must adhere to these Guidelines. Your purchase of SAXX products (the “Products”) from SAXX for purposes of resale constitutes your agreement to adhere to the terms herein. Failure to follow the Guidelines may result in termination of a Dealer’s SAXX account and status as an “Approved Dealer,” in addition to other remedies.

General Requirements and Conditions for Dealers

  1. Dealer shall sell Products only as provided herein. Dealer is authorized to sell Products only in those physical retail stores that have been previously approved in writing by SAXX for such Dealer (the “Approved Stores”) and Dealer shall neither sell Products from nor supply Products to any other location or facility. Dealer shall only sell the Products to end-use consumers and not to wholesalers. Without limiting the generality of the foregoing, Dealers shall not sell or transfer the Products to any party that Dealer knows, or has reason to believe, intends to resell or distribute the Products or to anyone a quantity of the Products greater than that generally purchased by an individual for personal use (“Unauthorized Parties”). To enable SAXX to honor exclusivity provisions granted to distributors located outside of Canada, Dealer shall not sell, ship, invoice, or transfer Products to any customer or any other party outside Canada.
  2. In addition to Approved Stores, Dealer is authorized to advertise and sell Products online but only through Permissible Public Websites and only in accordance with the terms herein, including Exhibit A. A “Permissible Public Website” is a website or mobile application that:
    • is operated by Dealer in Dealer’s legal name or registered fictitious name;
    • conspicuously states Dealer’s legal name and, if any, its registered fictitious name, mailing address, telephone number, and email address;
    • does not give the appearance that it is operated by SAXX or any third party; and
    • is operated in compliance with the terms and conditions set forth in the OnlineSales Guidelines, attached hereto as Exhibit A, as SAXX may amend from time to time.

Dealer shall not advertise or sell Products on or through any publicly accessible website, including, without limitation, any third-party marketplace website such as Amazon, eBay, Target, Rakuten, Walmart Marketplace, or other than a Permissible Public Website unless Dealer has been granted approval by SAXX, in writing. SAXX reserves the right to terminate, at any time and in its sole discretion, its approval for Dealer to market and sell Products on the Permissible Public Websites, and Dealer must cease all such marketing and sales on the Permissible Public Websites immediately upon notice of such termination. The Guidelines supersede any prior agreement between SAXX and Dealer regarding the sale of the Products online.

  1. Products sold by Dealer through Approved Stores and Permissible Public Websites are eligible for certain SAXX promotions, services, and benefits, including, wherever permitted by law, coverage under SAXX product warranties or guarantees (e.g., the SAXX Comfort Guarantee) (collectively, the “SAXX Add-ons”). Products sold to Unauthorized Parties, or through unauthorized channels, including unauthorized websites shall be ineligible for the SAXX Add-Ons.
  2. Dealer shall maintain a competent and trained sales staff that are familiar with the Products and shall use its best efforts to promote the sale of the Products and maintain good customer relations. Dealer shall not advertise, market or display non-SAXX products together with the Products in a manner that would create the impression that the non-SAXX products are made by, endorsed by, or associated with SAXX.
  3. Dealer shall comply with all laws, regulations, ordinances, guidelines, and policies applicable to Dealer’s business and the sale, advertising, and marketing of the Products.
  4. Dealer and its agents shall not engage in any unethical business practices or advertising or any activities that could reflect negatively on or compromise the SAXX brand, quality or image or which impact or compromise SAXX’s ability to protect its confidential information and intellectual property rights. Dealer agrees to cooperate in the investigation of such matters.
  5. All Products shall be packaged in such manner as SAXX shall establish under labels bearing such trade names and trademarks as SAXX has or may hereafter adopt. Dealer shall not alter, remove, or repackage the packaging for the Products. Tampering with, defacing, or otherwise altering any serial number, UPC code, or other identifying information on Products or their packaging is prohibited. Dealer shall exercise due care in storing and handling the Products, including storing the Products in a dry place away from direct sunlight, extreme heat, and dampness, and in accordance with any additional storage guidelines specified by SAXX from time to time. Promptly upon receipt of the Products, and before any Product is offered for sale, Dealer shall inspect the Products for damage, defect or other nonconformance (collectively, “Defects”). If any Defects are identified, Dealer must not offer the Product for sale, must promptly report the Defects to SAXX at (888) 409-SAXX and must comply with the decision and instructions of SAXX relating to the Products at issue. To the extent that Defects are detected after the Products have been sold by Dealer, Dealer shall cooperate with SAXX with respect to all Product recall efforts.
  6. Except those SAXX Ad-Ons published by SAXX from time to time and provided to Dealer. Dealer shall not make any representation or recommendation or extend any warranty (express or implied) relating to the use, effectiveness or quality of the Products.
  7. As part of being an Approved Dealer, Dealers are expected to meet minimum assortment and volume expectations established by SAXX for each calendar year and failure to meet such established expectations for any annual period may result in termination of Dealer’s SAXX account and Approved Dealer status. Further, Dealer shall carry an inventory of the Products adequate to meet the needs of, and to furnish prompt and efficient delivery of Products to, its customers.

Use of SAXX Intellectual Property

  1. SAXX is the owner of the following trademark registrations and pending applications:
    1. THREE-D FIT, TMA1041370
    2. FLAT OUT SEEMS, TMA1001858
    3. BALLPARK POUCH, TMA1001856
    4. DROPTEMP, serial no. 2017932
    5. SAXX, serial no. 1848020
    6. FOR THOSE WITH BALLS, serial no. 1994860
    7. SAXX, serial no. 1547634
    8. SAXX UNDERWEAR CO, serial no. 1547635
      (the “Trademarks”). SAXX also holds copyrights to the material in all its catalogs and advertisements (“Copyrighted Material”).
  1. SAXX grants to its Dealers a limited, revocable, non-exclusive, non-transferable license (“Limited License”) to display the Trademarks and publish, reproduce, etc. the Copyrighted Material in connection with the sale and promotion of its Products provided that the Dealer complies with the Guidelines and any other SAXX policies. The Limited License is solely for the Dealer’s use to promote the sale of Products and does not permit Dealers to use the Trademarks or publish, reproduce, etc. the Copyrighted Material for any purpose other than the following limited exception: Dealer may provide copies of the Trademarks and Copyrighted Material to third parties for the sole purpose of developing an advertising the sale of the Products. Any use of the Trademarks or Copyrighted Material shall be accompanied, where appropriate, by an attribution identifying SAXX as the owner of the Trademark or Copyrighted Material used therein. Whenever Dealer displays the Trademarks, such display shall be accompanied by the ® or ™ symbol, as appropriate. When using the Trademarks or Copyrighted Material, Dealers must be clearly identified in the advertisement by providing, at a minimum, business name, address, phone number, and website.
  2. SAXX retains all other rights associated with the Trademarks. The Limited License rights granted in the Guidelines do not include the right of Dealers to apply to register the Trademarks or any marks that are similar, to register the Trademarks as or within domain names or to use the Trademarks in Dealer trade names, corporate names, or business names. Dealer recognizes that SAXX, as the owner of the Trademarks, has the exclusive right to the Trademarks and any other trademarks used by SAXX in association with its Products, and Dealer agrees that it will not claim any right, title, or interest therein. Nothing herein shall be construed to give Dealer any right, title, or interest in the Trademarks or Copyrighted Materials. All goodwill arising from Dealer’s use of the Trademarks shall inure solely to the benefit of SAXX.
  3. SAXX reserves the right to review and approve, in its sole discretion, Dealer’s use or intended use of the Trademarks at any time, without limitation. Dealer should consult the SAXX Brand Center for guidance on the use of SAXX IP.
  4. Dealer shall, promptly upon written request from SAXX, discontinue or modify any way the Dealer uses any Trademarks or Copyrighted Material whether such use was previously approved by SAXX.
  5. The Limited License will immediately cease upon termination of Dealer’s status as an Approved Dealer or in the event that Dealer breaches any of SAXX’s product quality requirements.

Orders and Sales

  1. Dealer shall only purchase Products from SAXX.
  2. Dealer shall pay SAXX for Products as agreed to under the Terms and Conditions of the Order Form.
  3. Dealer shall order Products from SAXX in accordance with SAXX’s sales order procedures, as the same may be periodically amended upon written notice provided to Dealer. No order shall become binding until accepted by SAXX, as evidenced by the order confirmation sent via e-mail. SAXX shall have no obligation to accept any order received from Dealer and nothing in these Guidelines or otherwise shall entitle Dealer to any priority of supply in relation to the Products as against the other Dealers or customers of SAXX.
  4. Each order for Products accepted by SAXX shall constitute a separate contract. Any default by SAXX in relation to any accepted order shall not affect any other orders placed by Dealer and accepted by SAXX. SAXX may at any time, including, but not limited to, in case of termination of Dealer’s status as an Approved Dealer, cancel any orders received from Dealer even if accepted by SAXX. SAXX shall have no liability to Dealer arising from any non-acceptance or cancellation of previously accepted orders.
  5. Dealer is not entitled to cancel or modify any order received and accepted by SAXX, unless otherwise agreed to by SAXX in writing on a case-by-case basis. No cancellations or revision requests for orders that have been accepted by SAXX will be processed by SAXX within 30 days of the scheduled shipping date.

Miscellaneous

  1. Suspension and Termination. Notwithstanding anything to the contrary in these Guidelines, in addition to all other available remedies, if a Dealer violates these Guidelines, SAXX reserves the right to suspend or terminate such Dealer’s status as an Authorized Dealer immediately through written notice to such Dealer. Nothing contained in these Guidelines, the fulfillment of orders by SAXX, or otherwise shall be deemed a commitment by SAXX to maintain a Dealer as an Approved Dealer for a specified period of time. Upon termination of Dealer’s status as an Authorized Dealer, Dealer shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Dealer is an Authorized Dealer of SAXX Products or has any affiliation whatsoever with SAXX; and (iii) using all SAXX IP.
  2. Limitation of Liability. SAXX will not be liable to Dealer for any indirect, consequential, special, punitive, exemplary or incidental damages of any kind (including, without limitation, loss of profit or interruption or loss of business), however caused, arising out of or related in any way to these Guidelines, Dealer’s status as an Approved Dealer or its termination thereof, or any failure by SAXX to fill a purchase order, or any delay in delivery, whether in an action based on contract, warranty, strict liability, tort or otherwise.
  3. SAXX reserves the right to change these Guidelines or any other guidelines provided by SAXX that are applicable to Dealer at any time upon written notice to Dealer. Unless otherwise provided, such changes will take effect immediately and Dealer’s continued use, advertising, offering for sale, or sale of the Products, use of the Trademarks or Copyrighted Material, or use of any other information or materials provided by SAXX to Dealer under these Guidelines following notice of the changes will be deemed Dealer’s acceptance of the changes.
  4. If there is a breach or threatened breach of Sections I, II, or IV (1) of these Guidelines, it is agreed and understood that SAXX will have no adequate remedy in money or other damages at law. Accordingly, SAXX shall be entitled to seek injunctive relief and other equitable remedies; provided, however, no specification in these Guidelines of any remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of these Guidelines. No failure, refusal, neglect, delay, waiver, forbearance, or omission by SAXX to exercise any rights herein or to insist upon full compliance by Dealer with Dealer’s obligations herein shall constitute a waiver of any provision herein or otherwise limit the right of SAXX to fully enforce any or all provisions and parts thereof.
  5. SAXX or its authorized representative reserves the right to audit and/or monitor Dealer’s activities for compliance with these Guidelines, including, without limitation, inspection of Dealer’s facilities and records concerning the Products.
  6. These Guidelines and any disputes arising under them shall shall be governed by, and interpreted and enforced in accordance with, the laws in force in the province of British Columbia and the federal laws of Canada that are applicable therein (excluding any conflict of laws, rule or principle which might refer such interpretation to the laws of another jurisdiction). Each party irrevocably submits to the exclusive jurisdiction of the courts of British Columbia or the Federal Court of Canada sitting in Vancouver with respect to any matter arising hereunder or related hereto.
  7. SAXX has a unilateral Advertising Price Policy that is published and located on their B2B site, Seasonal Pricing Guidelines doc, that applies to all Authorized Dealers of SAXX Products located in Canada. This section is intended to inform you of the Advertising Price Policy. It does not constitute consideration for this agreement between you and SAXX and does not separately constitute an agreement between you and SAXX regarding the price you will charge your customers for the Products. SAXX does not seek, nor will it accept, from Dealer any assurance of compliance with the Advertising Price Policy.
  8. Severability. In the event any provision of these Guidelines is determined in any situation to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein, nor shall it affect the validity or enforceability of the offending provision in any other situation or in any other jurisdiction.
  9. Survival. Any other provision, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination or cancellation of the Guidelines.
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