DISTRIBUTOR TERMS 

THESE DISTRIBUTOR TERMS (the “Agreement”) is made and entered into as of the date of the creation of an account by the commercial user of the services described herein (the “Distributor”), and Parting Stone, Inc, a Delaware Public Benefit Corporation (“Company”).  

WHEREAS, Company is engaged in the business of providing a service for the solidification of the cremated remains of deceased individuals and animals into solidified remains (“Solidified Remains”); 

WHEREAS, Distributor is engaged in the business of providing interment and funeral services; 

WHEREAS, subject to the terms and conditions of this Agreement and the Exhibits hereto, Distributor shall engage Company to produce Solidified Remains for Distributor’s clients on an as-requested basis; and 

NOW, THEREFORE, In consideration of the mutual covenants and representations set forth herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, Distributor and Company hereby agree as follows:

Company will: 

a) Provide marketing, technical, and sales assistance as reasonably requested by Distributor to support sale of Solidified Remains;

b) Supply sales materials, drawings, catalogs, and other materials necessary for promoting the sale of Solidified Remains; and 

c) Reasonably assist in the training of Distributor’s sales force.

4. Responsibilities of Distributor. 

a) Distributor shall use only the marking materials provided by Company or by an approved third party as attached as Exhibit A hereto (“Marketing Materials”). Company may change its Marketing Materials at any time and shall provide Distributor with any such changed Marketing Materials. 

b) Distributor shall further, (i) make no false or misleading representations (including, without limitation, in advertising) with regard to Company and Solidified Remains, and (ii) make no representations, warranties or guarantees on behalf of Company to customers with respect to the specifications, features or capabilities of Company or the Solidified Remains that are inconsistent with the literature distributed by Company; 

c) Distributor shall supply the executed “Solidification Authorization” to Company before the solidification process commences. The solidification for any given order cannot begin until Company receives the completed “Solidification Authorization.” 

d) Distributor shall comply with all applicable laws and regulations related to Distributor’s business;  

e) Distributor shall use the Company’s trademarks solely in accordance with the terms of this Agreement. 

5. Pricing, Payment, and Taxes. 

a) Prices to Distributor 

i) During the term of this Agreement, each solidification of cremated remains into Solidified Remains will be sold to Distributor at the wholesale price listed on Schedule A hereto (“Wholesale Purchase Price”), and exclude all applicable federal, state and local taxes. Distributor may sell the Solidified Remains at a price determined by Distributor; provided however, that if Distributor advertises or markets the pricing for Solidified Remains online, then such price shall not be lower than the Company's retail price, which is included on Schedule A hereto, and may be modified by Company upon not less than 30 days written notice to Distributor.

ii) Distributor shall issue a Purchase Order (“Purchase Order”) by placing an order using Company’s online order process or by using an approved third party website to purchase Solidified Remains.  Purchase Orders submitted will be accepted or rejected by Company within five (5) business days after the arrival of the cremated remains at the Company.  Once the Purchase Order is accepted by the Company, the Purchase Order may not be canceled, modified or altered.  The Company reserves the right to cease offering certain designs of Solidified Remains, and/or to offer or replace such designs of Solidified Remains. 

b) The Wholesale Purchase Price does not include any national, state or local sales tax, which shall be added to each order

6. Proprietary Information.

a) Company and Distributor acknowledge that, in the course of performing their duties under this Agreement, they may obtain the other party’s information that is of confidential and proprietary nature, and not known to the public (collectively “Proprietary Information”). Such Proprietary Information may include, without limitation, trade secrets, know-how, inventions, techniques, processes, programs, algorithms, schematics, data, customer lists, financial information and sales and marketing plans. Both Company and Distributor and their employees and agents shall, at all times, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than performing its duties under this Agreement, nor shall Company and Distributor and their employees and agents disclose any such Proprietary Information to any person without the other party’s prior written consent.

b) Company and Distributor and their employees and agents shall not be bound by subpart (a) of this Section with respect to information that (i) at the date hereof has entered or later enters the public domain as a result of no act or omission of Distributor or Company, as the case may be, or such party’s employees and agents, (ii) is lawfully received from third parties without restriction on its disclosure, (iii) was lawfully in the possession of Company or Distributor, as the case may be, without restriction prior to its disclosure by Company or Distributor, as the case may be, or (iv) was independently developed by Company or Distributor,  as the case may be, or their employees and agents, without access to the other party’s Proprietary Information.

c) The parties’ duty to protect Proprietary Information shall survive any expiration or termination of this Agreement, and shall extend for a period of three (3) years from the date of disclosure of the Proprietary Information.

d) Company and Distributor shall return all Proprietary Information promptly upon expiration or termination of this Agreement, or upon any earlier request to do so made in writing by the other party.

e) Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or otherwise, under any patent, copyright, trade secret or other intellectual property right, other than the rights expressly granted in this Agreement.  

7. Warranty and Disclaimer.

a) Limited Warranty. Distributor is aware, and covenants and agrees to make its customers aware, that (i) the production of Solidified Remains is subject to inherent variability due to the variables in composition of the remains.  In the event that Solidified Remains are unable to be produced by Company for any reason in the Company’s discretion, the remains will be re-converted to powder form and returned to Distributor, along with the Wholesale Purchase Price; (ii) Company cannot predict, and cannot guarantee, the variations that will exist in the Solidified Remains produced.  

b) Disclaimer. If Distributor or Distributor’s customer is unsatisfied with the Solidified Remains, the sole remedy available to Distributor shall be for the Company to reprocess the Solidified Remains into powder form of its constituent materials (with such variations in volume as may occur as a result therefrom) and return the remains to Distributor. In no event shall Company be liable for, and Distributor expressly waives, disclaims and releases Company from and against, all costs (including either the Wholesale Purchase Price or Retail Purchase Price), expenses, claims and/or damages (including but not limited to consequential damages and damages for emotional distress). Company shall have no obligation to restore the Solidified Remains to powder form of its constituent materials if the alleged defect or non-conformance is found to have occurred as a result of misuse, neglect, improper installation or accident, or as a result of improper repair, alteration, storage, shipping or handling. 

THE WARRANTY SET FORTH IN SECTION 7(a) IS IN LIEU OF, AND COMPANY HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT.

IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE SOLIDIFIED REMAINS OR THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNIFICATION AS PROVIDED BY COMPANY PURSUANT TO SECTION 10(d), THE COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOLIDIFIED REMAINS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF PRICES AND FEES PAID TO COMPANY BY DISTRIBUTOR FOR THE SOLIDIFIED REMAINS IN THE MOST RECENT ONE MONTH. DISTRIBUTOR ACKNOWLEDGES THAT THE PRICES AND FEES PAID TO IT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

8. Trademark and Tradenames.

a) Distributor acknowledges that Company is the owner of certain trade names and trademarks. Distributor agrees to use such names and marks only in accordance with subpart (b) of this Section, and will not attempt to register such name or mark in its own name either during the period or after the termination of this Agreement.

b) Company grants to Distributor for the period of this Agreement the right to use its trade names and the trademarks in connection with the sale, distribution, and servicing of the Solidified Remains (“Distributor Marketing Materials”). Distributor shall identify itself as an authorized Distributor of Solidified Remains in connection with all activities related to such Solidified Remains, and not to use any other trademark or name to identify such Solidified Remains. Distributor shall not use such name or mark in any manner that might indicate that Distributor is or was anything other than an authorized Distributor acting as an independent contractor.

c) Company shall have the right to request Distributor Marketing Materials from time to time to ensure Distributor’s compliance with this Section 8.

9. Term and Termination.

a) The initial term of this Agreement shall be 1 year commencing as of the Effective Date. At the end of such one-year period, this Agreement shall be renewed automatically for additional periods of one (1) year for each of the renewal unless either party provides written notice to the other party of its intention not to renew this Agreement, at least 60 days prior to the expiration of the original one-year period of this Agreement or any renewal thereof.  The initial term, as may be renewed, is referred to herein as the “Term”. 

b) Either party may terminate this Agreement at any time prior to the expiration of its stated term in the event that the other party materially breaches this Agreement and such breach continues unremedied for a period of thirty (30) days following written notice of such failure or default.

c) This Agreement terminates automatically, with no further act or action of either party, if a receiver is appointed for either party or its property, either party makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against either party under any bankruptcy, insolvency or debtor’s relief law, or either party is liquidated or dissolved.

d) In the event that any notice of termination of this Agreement is given, Company will be entitled to reject all or part of any orders received from Distributor after notice but prior to the effective date of termination if availability of Company’s capacity is insufficient at that time to meet the needs of Company and its customers fully. 

e) Upon termination or expiration of this Agreement:

i) The due dates of all outstanding invoices to Distributor for Solidified Remains will automatically be accelerated so they become due and payable on the effective date of termination. 

ii) Distributor shall cease using any Company trademark, trade name, logo or designation.

10. Indemnity.

a) Indemnification of Distributor. Company will, at its expense, indemnify, defend and hold harmless Distributor and its customers against all costs and damages resulting from any claim based on an allegation:

i) that Solidified Remains as supplied or provided by Company hereunder, infringes a patent, copyright or other intellectual property right of a third party, or

ii) a material and continuing breach of this Agreement by the Company;

provided that Distributor (i) gives Company prompt written notice of any such claim, (ii) allows Company to direct the defense and settlement of the claims, and (iii) provides Company with the information and assistance necessary for the defense and settlement of the claim. If a final injunction is obtained in an action based on any such claim against Distributor’s use or sale of Solidified Remains by reason of infringement, or if in Company’s opinion such an injunction is likely to be obtained, Company may, at its sole option, either (i) obtain for Distributor the right to continue selling Solidified Remains, (ii) replace or modify the Solidified Remains and/or production process therefore so that it becomes noninfringing, or (iii) if neither (i) nor (ii) can be reasonably affected by Company, credit to Distributor the prices paid for the Solidified Remains during the twelve (12) months prior to the submission of the claim, provided that such Solidified Remains are returned to Company in an undamaged condition for reprocessing into their constituent materials. 

b) Limitation on Claims. Notwithstanding subpart (a) of this Section 10, Company shall not be liable to Distributor for any claim or arising from any alteration or modification of Solidified Remains.

c) Indemnification of Company.  Distributor agrees to release, indemnify, defend and hold harmless Company and Company’s officers, directors, employees, agents, subsidiaries, partners, contractors, shareholders, attorneys, assigns and affiliates from and against any loss, liabilities, damages, costs, or expenses, including reasonable attorneys’ fees, resulting from any third-party claim, action or demand arising under or relating to:

i) Distributor’s possession, resale, promotion or other use of Solidified Remains, and/or any transaction entered into between the Distributor and any other person or entity related to the Solidified Remains;

ii) any claims against Company by Distributor’s actual or prospective customers for monetary or other damages other than as specifically prescribed in Section 7 hereof;

iii) Distributor’s material and continuing breach of this Agreement.

Distributor agrees that this indemnification obligation survives this Agreement’s termination or expiration. Distributor agrees to give prompt, written notice to Company upon the receipt of notice of any claim by a third party against Distributor which might give rise to a claim against Company, stating the nature and basis of such claim and, if ascertainable, the amount thereof.  The payment of any money shall not be a condition precedent to this indemnity.  

EXHIBIT A
MARKETING MATERIALS

Schedule A

Wholesale Purchase Price

The Wholesale Purchase Price may be modified by the Company with 30 days written notice to Distributor (which new price shall be deemed to replace the price set forth herein). *Wholesale prices will be paid in USD.* 

* For other animals, please inquire for pricing.  

MSRP Price 

The Distributor may use the MSRP suggested by the Company or set their own retail prices.  

Parting Stone Retail Price