OEM / White-Label Agreement (West Virginia)

OEM / WHITE-LABEL AGREEMENT

STATE OF WEST VIRGINIA

TABLE OF CONTENTS

1. Parties and Recitals
2. Definitions
3. Grant of Rights and License
4. Product and Service Specifications
5. Branding and Trademark Usage
6. Pricing, Payment, and Minimum Orders
7. Intellectual Property Ownership
8. Warranties
9. Limitation of Liability
10. Indemnification
11. Confidentiality and Trade Secrets
12. Data Protection and Breach Notification
13. Term, Termination, and Transition
14. Insurance Requirements
15. Dispute Resolution
16. Force Majeure
17. General Provisions
18. Signature Blocks
19. Schedules and Exhibits
20. Sources and References

1. PARTIES AND RECITALS

THIS OEM / WHITE-LABEL AGREEMENT ("Agreement") is entered into as of [__/__/____] ("Effective Date"),

by and between:

SUPPLIER:
Name: [________________________________]
State of Organization: [________________________________]
Principal Place of Business: [________________________________]
City: [________________________________], State: WV, ZIP: [____]
Authorized Representative: [________________________________]
Title: [________________________________]
Email: [________________________________]
Phone: [________________________________]

(hereinafter referred to as "Supplier")

AND

OEM PARTNER / RESELLER:
Name: [________________________________]
State of Organization: [________________________________]
Principal Place of Business: [________________________________]
City: [________________________________], State: [____], ZIP: [____]
Authorized Representative: [________________________________]
Title: [________________________________]
Email: [________________________________]
Phone: [________________________________]

(hereinafter referred to as "OEM Partner")

(Supplier and OEM Partner are each individually a "Party" and collectively the "Parties.")

RECITALS

WHEREAS, Supplier is engaged in the business of designing, manufacturing, and/or providing [________________________________] (brief description of products/services);

WHEREAS, OEM Partner desires to obtain from Supplier certain products and/or services for the purpose of rebranding, remarketing, and reselling such products and/or services under OEM Partner's own brand name and trademarks;

WHEREAS, Supplier is willing to grant OEM Partner the right to rebrand and resell such products and/or services subject to the terms and conditions set forth herein;

WHEREAS, the Parties desire to establish the respective rights, obligations, and responsibilities governing this OEM / white-label arrangement;

WHEREAS, the Parties intend that this Agreement shall be governed by the laws of the State of West Virginia, including the West Virginia Uniform Commercial Code (W. Va. Code Chapter 46);

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below:

2.1 "Branded Products" means the Products and/or Services provided by Supplier to OEM Partner that have been rebranded, relabeled, or repackaged to bear OEM Partner's Marks and trade dress in accordance with the Branding Guidelines.

2.2 "Branding Guidelines" means the specifications, style guides, and instructions for the application of OEM Partner's Marks to the Products, as set forth in Schedule 3.

2.3 "Confidential Information" means all non-public information disclosed by either Party to the other Party, whether in written, oral, electronic, or visual form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to trade secrets as defined under the West Virginia Uniform Trade Secrets Act (W. Va. Code § 47-22-1).

2.4 "Deliverables" means all products, materials, documentation, software, and other items delivered or to be delivered by Supplier to OEM Partner under this Agreement.

2.5 "Effective Date" means the date first written above.

2.6 "Improvements" means any modification, enhancement, derivative work, upgrade, adaptation, or development made to the Products, Services, or any Intellectual Property during the Term, whether made by Supplier, OEM Partner, or jointly.

2.7 "Intellectual Property" or "IP" means all patents, copyrights, trademarks, service marks, trade dress, trade secrets, know-how, inventions (whether patentable or not), designs, processes, formulas, algorithms, software, data, databases, and all other proprietary rights, and any applications or registrations relating thereto.

2.8 "Marks" means the trademarks, service marks, trade names, logos, domain names, and other source identifiers owned or licensed by a Party.

2.9 "Minimum Order Quantity" or "MOQ" means the minimum volume of Products that OEM Partner must order during a specified period, as set forth in Schedule 1.

2.10 "Personal Information" means information as defined in W. Va. Code § 46A-2A-101, including an individual's first name or first initial and last name linked to any one or more of the following data elements when the data elements are not encrypted or redacted: (a) social security number; (b) driver's license number or state identification card number issued by the West Virginia Division of Motor Vehicles; (c) financial account number or credit card or debit card number in combination with any required security code, access code, or password that would permit access to a resident's financial accounts.

2.11 "Products" means the goods, products, components, or materials manufactured, supplied, or provided by Supplier as described in Schedule 1 and the Specifications.

2.12 "Services" means the services performed or to be performed by Supplier as described in Schedule 2, if applicable.

2.13 "Specifications" means the technical requirements, performance standards, and quality parameters for the Products and/or Services as set forth in Schedule 1 and any applicable statement of work.

2.14 "Territory" means the geographic area in which OEM Partner is authorized to market and sell the Branded Products, as specified in Section 3.

2.15 "Trade Secret" means information as defined under the West Virginia Uniform Trade Secrets Act (W. Va. Code § 47-22-1), including but not limited to a formula, pattern, compilation, program, device, method, technique, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

2.16 "Improper Means" means, as defined under W. Va. Code § 47-22-1, theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

3. GRANT OF RIGHTS AND LICENSE

3.1 White-Label License. Subject to the terms and conditions of this Agreement, Supplier hereby grants to OEM Partner a:

☐ Non-exclusive
☐ Exclusive
☐ Sole (exclusive except as to Supplier)

limited license to rebrand, market, distribute, and resell the Products and/or Services under OEM Partner's own brand name and Marks within the Territory during the Term.

3.2 Territory. The Territory for this Agreement shall be:

☐ Worldwide
☐ United States only
☐ State of West Virginia only
☐ Custom Territory: [________________________________]

3.3 Scope of Rights. The license granted herein includes the right to:

(a) Apply OEM Partner's Marks and trade dress to the Products in accordance with the Branding Guidelines;
(b) Market, advertise, promote, and sell the Branded Products within the Territory;
(c) Provide customer support and after-sales service for the Branded Products;
(d) Include the Products as components of OEM Partner's larger product offerings;
(e) Prepare and distribute marketing materials featuring the Branded Products.

3.4 Restrictions. OEM Partner shall not:

(a) Sell the Products outside the Territory without prior written consent of Supplier;
(b) Modify the Products in any manner that affects their safety, functionality, or compliance with applicable law without prior written approval;
(c) Remove, alter, or obscure any regulatory marks, safety labels, or compliance certifications on the Products;
(d) Sublicense or assign the rights granted herein without Supplier's prior written consent;
(e) Reverse-engineer, decompile, or disassemble any Products or component thereof except as permitted by applicable law;
(f) Make representations about the Products that exceed the scope of Supplier's written documentation and approved marketing materials or that would violate the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.).

3.5 Reservation of Rights. All rights not expressly granted to OEM Partner in this Agreement are reserved by Supplier.

4. PRODUCT AND SERVICE SPECIFICATIONS

4.1 Specifications. Supplier shall manufacture and/or provide the Products and/or Services in conformity with the Specifications set forth in Schedule 1. Any modification to the Specifications shall require the mutual written consent of both Parties.

4.2 Quality Standards. Supplier shall:

(a) Maintain quality management systems consistent with [________________________________] (e.g., ISO 9001, ISO 13485, or other applicable standard);
(b) Perform quality control inspections and testing as described in Schedule 1;
(c) Comply with all applicable federal, state, and local laws, regulations, and industry standards pertaining to the manufacture and sale of the Products;
(d) Maintain records of quality testing and inspection results for a minimum of [____] years;
(e) Permit OEM Partner or its designated representative to conduct quality audits at Supplier's facilities upon [____] days' prior written notice, not more than [____] times per calendar year.

4.3 Samples and Approval. Prior to commencing production of Branded Products, Supplier shall provide OEM Partner with samples for approval. OEM Partner shall have [____] business days to approve or reject the samples. Rejected samples must be accompanied by written notice detailing specific deficiencies. Supplier shall correct deficiencies and resubmit within [____] business days.

4.4 Changes to Products. Supplier shall not make any material change to the Products, their composition, manufacturing process, or Specifications without providing OEM Partner at least [____] days' prior written notice and obtaining OEM Partner's written approval.

4.5 Regulatory Compliance. Supplier shall ensure that all Products comply with applicable federal, state, and West Virginia regulatory requirements, including but not limited to consumer product safety standards, labeling requirements, and the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.).

4.6 Delivery and Acceptance.

(a) Supplier shall deliver Products in accordance with the delivery schedule set forth in Schedule 1 or as otherwise agreed in writing;
(b) Delivery terms shall be: ☐ FOB Origin ☐ FOB Destination ☐ Other: [________________________________];
(c) OEM Partner shall have [____] business days following receipt to inspect Products and provide written notice of any non-conformity;
(d) Products not rejected within the inspection period shall be deemed accepted;
(e) Supplier shall replace or repair non-conforming Products at Supplier's expense within [____] business days of receiving notice of rejection.

5. BRANDING AND TRADEMARK USAGE

5.1 OEM Partner's Marks. OEM Partner hereby grants Supplier a limited, non-exclusive, non-transferable license to use OEM Partner's Marks solely for the purpose of manufacturing, labeling, packaging, and delivering the Branded Products in accordance with this Agreement and the Branding Guidelines.

5.2 Branding Guidelines. All use of OEM Partner's Marks by Supplier shall comply with the Branding Guidelines set forth in Schedule 3. Supplier shall submit all proposed uses of OEM Partner's Marks for prior written approval by OEM Partner.

5.3 Quality Control. In accordance with West Virginia and federal trademark law, OEM Partner shall have the right to inspect and approve the quality of all Branded Products bearing OEM Partner's Marks. Supplier acknowledges that this quality control is essential to maintaining the validity of OEM Partner's trademark rights.

5.4 Supplier's Marks. Unless otherwise agreed in writing, Supplier's Marks shall not appear on the Branded Products, packaging, documentation, or marketing materials provided to end users. Any co-branding arrangement must be set forth in Schedule 3.

5.5 No Confusion. Neither Party shall use the other Party's Marks in any manner that is likely to cause confusion, dilute the Marks, or imply an endorsement, sponsorship, or affiliation beyond the scope of this Agreement.

5.6 Ownership of Marks. Each Party retains all right, title, and interest in and to its own Marks. Nothing in this Agreement shall be construed as transferring ownership of any Mark from one Party to the other. All goodwill arising from the use of a Party's Marks shall inure to the benefit of the Mark owner.

6. PRICING, PAYMENT, AND MINIMUM ORDERS

6.1 Pricing. The pricing for Products and/or Services shall be as set forth in Schedule 1 ("Price Schedule"). The Price Schedule shall specify unit prices, volume discounts (if any), and any applicable surcharges.

6.2 Price Adjustments. Supplier may adjust pricing:

(a) Annually, upon [____] days' prior written notice, with increases not to exceed [____]% per annum absent extraordinary circumstances;
(b) Upon mutual written agreement at any time;
(c) In the event of documented material increases in raw material costs, manufacturing costs, or regulatory compliance costs exceeding [____]%, upon [____] days' prior written notice with supporting documentation.

6.3 Payment Terms.

(a) Supplier shall invoice OEM Partner upon shipment of Products or completion of Services;
(b) Payment shall be due within [____] days of the date of invoice;
(c) All payments shall be made in United States dollars by [________________________________] (e.g., wire transfer, ACH, check);
(d) Late payments shall accrue interest at the rate of [____]% per month or the maximum rate permitted under West Virginia law (W. Va. Code § 47-6-5, which sets the legal interest rate at 6% per annum absent agreement, and W. Va. Code § 47-6-5a, which provides that interest rates agreed upon in commercial transactions are generally enforceable), whichever is less;
(e) OEM Partner shall not withhold, set off, or deduct any amounts from payments without prior written agreement of Supplier.

6.4 Minimum Order Quantities.

(a) OEM Partner agrees to purchase a minimum of [________________________________] units of Products during each [________________________________] (e.g., calendar quarter, calendar year);
(b) Failure to meet the MOQ for [____] consecutive periods shall entitle Supplier to:
☐ Convert the license from exclusive to non-exclusive
☐ Terminate this Agreement upon [____] days' written notice
☐ Charge a shortfall fee equal to [____]% of the unmet MOQ value
☐ Other: [________________________________]

6.5 Taxes. OEM Partner shall be responsible for all sales, use, excise, and similar taxes imposed on the sale of Products to OEM Partner, excluding taxes based on Supplier's income. West Virginia consumers sales and service tax obligations shall be determined in accordance with W. Va. Code § 11-15-1 et seq.

7. INTELLECTUAL PROPERTY OWNERSHIP

7.1 Supplier's Pre-Existing IP. Supplier retains all right, title, and interest in and to all Intellectual Property owned or developed by Supplier prior to or independent of this Agreement ("Supplier IP"), including all IP embodied in the Products and their underlying technology, designs, processes, and know-how.

7.2 OEM Partner's Pre-Existing IP. OEM Partner retains all right, title, and interest in and to all Intellectual Property owned or developed by OEM Partner prior to or independent of this Agreement ("OEM Partner IP"), including OEM Partner's Marks, trade dress, customer lists, and marketing materials.

7.3 Improvements.

(a) Supplier Improvements. Any Improvements to the Products, manufacturing processes, or Supplier IP made by Supplier during the Term shall be owned solely by Supplier;
(b) OEM Partner Improvements. Any Improvements to OEM Partner IP, branding, packaging designs, or marketing materials made by OEM Partner during the Term shall be owned solely by OEM Partner;
(c) Joint Improvements. Any Improvements that are jointly developed by the Parties shall be:

☐ Owned jointly by both Parties, with each Party having the right to use, license, and exploit such joint IP without the consent of or accounting to the other Party
☐ Owned by Supplier, with a perpetual, royalty-free license granted to OEM Partner
☐ Owned by OEM Partner, with a perpetual, royalty-free license granted to Supplier
☐ Subject to separate joint development agreement

7.4 License to Supplier IP. To the extent that any Supplier IP is incorporated into the Branded Products, Supplier hereby grants OEM Partner a non-exclusive, non-transferable, limited license to use such Supplier IP solely in connection with the marketing, sale, distribution, and support of the Branded Products during the Term.

7.5 No Implied Licenses. Nothing in this Agreement shall be construed as granting any license or right to either Party's Intellectual Property except as expressly set forth herein.

7.6 IP Protection. Each Party shall promptly notify the other Party of any known or suspected infringement of the other Party's Intellectual Property rights. The Parties shall cooperate in good faith in any enforcement action.

8. WARRANTIES

8.1 Supplier's Product Warranty. Supplier warrants that all Products delivered under this Agreement shall:

(a) Conform to the Specifications set forth in Schedule 1;
(b) Be free from defects in materials and workmanship for a period of [________________________________] from the date of delivery;
(c) Be manufactured in compliance with all applicable federal, state, and local laws, regulations, and standards;
(d) Not infringe upon any third-party Intellectual Property rights;
(e) Be merchantable, as that term is defined under W. Va. Code § 46-2-314;
(f) Be fit for the ordinary purposes for which such goods are used.

8.2 Implied Warranty of Merchantability (W. Va. Code § 46-2-314). Under West Virginia law, unless excluded or modified pursuant to W. Va. Code § 46-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. To be merchantable, goods must at minimum: (a) pass without objection in the trade under the contract description; (b) in the case of fungible goods, be of fair average quality within the description; (c) be fit for the ordinary purposes for which such goods are used; (d) run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; (e) be adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.

8.3 Implied Warranty of Fitness for Particular Purpose (W. Va. Code § 46-2-315). Where Supplier at the time of contracting has reason to know any particular purpose for which the Products are required and that OEM Partner is relying on Supplier's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under W. Va. Code § 46-2-316, an implied warranty that the Products shall be fit for such purpose.

8.4 Warranty Disclaimer Provisions. To the extent any warranty is disclaimed or limited under this Agreement, such disclaimer or limitation must comply with the requirements of W. Va. Code § 46-2-316, which provides that:

(a) To exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and, in the case of a writing, must be conspicuous;
(b) To exclude or modify any implied warranty of fitness, the exclusion must be by a writing and must be conspicuous;
(c) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults," or other language which in common understanding calls the buyer's attention to the exclusion of warranties;
(d) When the buyer before entering into the contract has examined the goods or sample or model as fully as desired or has refused to examine, there is no implied warranty with regard to defects that such examination ought in the circumstances to have revealed.

8.5 Supplier's Service Warranty. If Services are provided under this Agreement, Supplier warrants that all Services shall be performed in a professional and workmanlike manner, consistent with generally accepted industry standards and practices.

8.6 OEM Partner's Warranties. OEM Partner warrants that:

(a) OEM Partner has full power and authority to enter into this Agreement;
(b) OEM Partner is the owner or authorized licensee of the Marks provided to Supplier;
(c) OEM Partner's Marks do not infringe upon any third-party Intellectual Property rights;
(d) OEM Partner shall market and sell the Branded Products in compliance with all applicable federal, state, and local laws, including the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.).

8.7 Mutual Warranties. Each Party warrants to the other that:

(a) It is duly organized and validly existing under the laws of its state of organization;
(b) It has full power and authority to enter into and perform its obligations under this Agreement;
(c) The execution and performance of this Agreement does not conflict with any other agreement to which it is a party;
(d) It shall comply with all applicable laws and regulations in the performance of its obligations.

9. LIMITATION OF LIABILITY

9.1 Cap on Liability. EXCEPT FOR OBLIGATIONS ARISING UNDER SECTIONS 10 (INDEMNIFICATION), 11 (CONFIDENTIALITY), AND 7 (INTELLECTUAL PROPERTY), AND EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE, NEITHER PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED:

☐ The total fees paid by OEM Partner to Supplier during the twelve (12) months immediately preceding the event giving rise to the claim
☐ The total fees paid by OEM Partner to Supplier during the twenty-four (24) months immediately preceding the event giving rise to the claim
☐ A fixed amount of $[________________________________]

9.2 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY WEST VIRGINIA LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES, OR BUSINESS INTERRUPTION, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 West Virginia Enforceability. The Parties acknowledge that West Virginia courts generally enforce contractual limitations of liability in commercial agreements between sophisticated parties, provided that such limitations are not unconscionable. West Virginia follows the UCC provision allowing parties to limit or alter the measure of damages recoverable under W. Va. Code § 46-2-719. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, but limitation of damages where the loss is commercial is not.

9.4 Essential Purpose. The Parties agree that the limitations and exclusions set forth in this Section 9 shall apply even if any limited remedy provided in this Agreement fails of its essential purpose, to the maximum extent permitted by W. Va. Code § 46-2-719.

9.5 No Limitation on Certain Claims. Nothing in this Section 9 shall limit either Party's liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) willful or intentional misconduct; or (d) any other liability that cannot be excluded or limited under West Virginia law.

10. INDEMNIFICATION

10.1 Supplier's Indemnification. Supplier shall defend, indemnify, and hold harmless OEM Partner and its officers, directors, employees, agents, successors, and assigns from and against any and all claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:

(a) Any breach by Supplier of any representation, warranty, or obligation under this Agreement;
(b) Any claim that the Products or their manufacture, use, or sale infringe upon any third-party Intellectual Property rights;
(c) Any defect in the Products attributable to Supplier's design, materials, or manufacturing;
(d) Supplier's negligence, willful misconduct, or violation of applicable law;
(e) Any product liability claim arising from defects in the Products as supplied by Supplier, prior to any modification by OEM Partner;
(f) Any violation by Supplier of the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.).

10.2 OEM Partner's Indemnification. OEM Partner shall defend, indemnify, and hold harmless Supplier and its officers, directors, employees, agents, successors, and assigns from and against any and all claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:

(a) Any breach by OEM Partner of any representation, warranty, or obligation under this Agreement;
(b) Any claim that OEM Partner's Marks or branding infringe upon any third-party Intellectual Property rights;
(c) OEM Partner's marketing, sale, or distribution of the Branded Products, except to the extent arising from Supplier's breach or negligence;
(d) OEM Partner's negligence, willful misconduct, or violation of applicable law;
(e) Any product liability claim arising from modifications made by OEM Partner to the Products;
(f) Misuse of Supplier's Confidential Information by OEM Partner.

10.3 Indemnification Procedures.

(a) The indemnified Party shall promptly notify the indemnifying Party in writing of any claim for which indemnification is sought;
(b) The indemnifying Party shall have the right to assume control of the defense of such claim with counsel of its choosing, provided such counsel is reasonably acceptable to the indemnified Party;
(c) The indemnified Party shall cooperate fully with the indemnifying Party in the defense of such claim;
(d) The indemnifying Party shall not settle any claim without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld, if such settlement imposes any obligation or liability on the indemnified Party;
(e) Failure to provide timely notice shall not relieve the indemnifying Party of its obligations except to the extent such failure materially prejudices the indemnifying Party's defense.

10.4 West Virginia Comparative Fault. The Parties acknowledge that West Virginia applies a modified comparative fault system (W. Va. Code § 55-7-13a) under which a claimant is barred from recovery if the claimant's fault equals or exceeds the combined fault of all other parties. The Parties' indemnification obligations under this Agreement are contractual in nature and shall be governed by the terms herein, not by comparative fault principles, except to the extent required by applicable law.

11. CONFIDENTIALITY AND TRADE SECRETS

11.1 Obligations of Confidentiality. Each Party (as "Receiving Party") agrees that it shall:

(a) Hold the Confidential Information of the other Party (as "Disclosing Party") in strict confidence;
(b) Not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party, except to its employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations at least as protective as those contained herein;
(c) Use Confidential Information solely for the purposes of performing its obligations and exercising its rights under this Agreement;
(d) Protect Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.

11.2 West Virginia Uniform Trade Secrets Act (W. Va. Code § 47-22-1 et seq.). The Parties acknowledge that certain Confidential Information may constitute "trade secrets" as defined under the West Virginia Uniform Trade Secrets Act. Under W. Va. Code § 47-22-1, a trade secret means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

11.3 Remedies for Misappropriation. Under the West Virginia Uniform Trade Secrets Act:

(a) Injunctive Relief (W. Va. Code § 47-22-2): A court may enjoin actual or threatened misappropriation of a trade secret. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but may be continued for an additional reasonable period in order to eliminate commercial advantage that otherwise would be derived from the misappropriation. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty;
(b) Damages (W. Va. Code § 47-22-3): A complainant may recover damages for the actual loss caused by misappropriation and for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss. In lieu of damages measured by other methods, damages may be measured by imposition of liability for a reasonable royalty;
(c) Exemplary Damages (W. Va. Code § 47-22-3): If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award of actual damages;
(d) Attorney's Fees (W. Va. Code § 47-22-4): If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney's fees to the prevailing party;
(e) Preservation of Secrecy (W. Va. Code § 47-22-5): In an action under this article, the court shall preserve the secrecy of an alleged trade secret by reasonable means.

11.4 Exclusions from Confidentiality. Confidential Information does not include information that:

(a) Is or becomes publicly available through no fault of the Receiving Party;
(b) Was already known to the Receiving Party without restriction prior to disclosure;
(c) Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information;
(d) Is rightfully received from a third party without restriction on disclosure;
(e) Is required to be disclosed by law, regulation, or court order, provided the Receiving Party gives prompt notice to the Disclosing Party and cooperates with reasonable efforts to obtain a protective order.

11.5 Return or Destruction. Upon termination of this Agreement or upon the Disclosing Party's written request, the Receiving Party shall promptly return or destroy all Confidential Information and certify in writing that it has done so, except to the extent retention is required by applicable law or the Receiving Party's document retention policies (provided such retained information remains subject to the confidentiality obligations herein).

11.6 Duration of Confidentiality Obligations. The obligations of confidentiality shall survive termination or expiration of this Agreement for a period of [____] years; provided, however, that obligations with respect to trade secrets shall continue for as long as the information qualifies as a trade secret under W. Va. Code § 47-22-1. The Parties note that the statute of limitations for misappropriation under W. Va. Code § 47-22-6 is three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.

12. DATA PROTECTION AND BREACH NOTIFICATION

12.1 Data Protection Obligations. To the extent that either Party processes, stores, or has access to Personal Information in connection with this Agreement, such Party shall:

(a) Implement and maintain reasonable security measures to protect Personal Information from unauthorized access, acquisition, destruction, use, modification, or disclosure;
(b) Comply with all applicable federal and West Virginia data protection laws;
(c) Restrict access to Personal Information to authorized personnel with a business need to know;
(d) Not sell, lease, or otherwise disclose Personal Information to any third party except as necessary to perform obligations under this Agreement or as required by law.

12.2 West Virginia Data Breach Notification (W. Va. Code § 46A-2A-101 et seq.). In the event of a breach of security involving Personal Information, the responsible Party shall:

(a) Notify the other Party within [____] hours of discovering the breach;
(b) Comply with W. Va. Code § 46A-2A-102, which requires an individual or entity that owns or licenses computerized data including personal information to give notice of any breach of security to any West Virginia resident whose unencrypted and unredacted personal information was, or is reasonably believed to have been, accessed and acquired by an unauthorized person, and that the breach has caused or will cause or is reasonably believed to have caused or will cause identity theft or other fraud;
(c) Provide notification without unreasonable delay, except as needed to determine the scope of the breach and restore system integrity, or as required by law enforcement;
(d) If more than one thousand (1,000) persons must be notified, also notify all consumer reporting agencies that compile and maintain files on a nationwide basis, without unreasonable delay, of the timing, distribution, and content of the notices;
(e) Coordinate with the other Party on the content and timing of any required notifications;
(f) Bear the costs of notification, credit monitoring, and remediation to the extent the breach is attributable to such Party's acts or omissions.

12.3 Substitute Notice. Under W. Va. Code § 46A-2A-102, substitute notice is available if: (i) the cost of providing notice exceeds fifty thousand dollars ($50,000); (ii) the affected class exceeds one hundred thousand (100,000) persons; or (iii) sufficient contact information is not available. Substitute notice consists of any two of: (a) email notice if email addresses are available; (b) conspicuous posting on the entity's website; or (c) notification to major statewide media.

12.4 Enforcement and Penalties. The Parties acknowledge that the West Virginia Attorney General has authority to enforce the data breach notification provisions and may impose civil penalties up to one hundred fifty thousand dollars ($150,000) per breach for repeated violations (W. Va. Code § 46A-2A-104).

12.5 Data Processing Agreement. If required by the nature and scope of data processing activities, the Parties shall execute a Data Processing Agreement substantially in the form set forth in Schedule 4.

12.6 Data Security Standards. Each Party shall maintain security measures that include, at minimum:

(a) Encryption of Personal Information in transit and at rest;
(b) Access controls and authentication mechanisms;
(c) Regular security assessments and vulnerability testing;
(d) Employee training on data security and privacy;
(e) Incident response plans and procedures.

13. TERM, TERMINATION, AND TRANSITION

13.1 Initial Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of [________________________________] (the "Initial Term"), unless earlier terminated in accordance with this Section 13.

13.2 Renewal.

☐ This Agreement shall automatically renew for successive periods of [________________________________] each (each a "Renewal Term") unless either Party provides written notice of non-renewal at least [____] days prior to the expiration of the then-current term.
☐ This Agreement shall not automatically renew and shall require affirmative written agreement of both Parties to extend beyond the Initial Term.

13.3 Termination for Cause. Either Party may terminate this Agreement upon written notice if:

(a) The other Party commits a material breach of any provision of this Agreement and fails to cure such breach within [____] days after receiving written notice specifying the breach;
(b) The other Party becomes insolvent, files or has filed against it a petition in bankruptcy, makes an assignment for the benefit of creditors, or has a receiver appointed for a substantial portion of its assets;
(c) The other Party is subject to a dissolution or liquidation proceeding;
(d) The other Party is convicted of or pleads guilty to a felony or engages in fraudulent conduct.

13.4 Termination for Convenience. Either Party may terminate this Agreement for convenience upon [____] days' prior written notice to the other Party, provided that OEM Partner shall pay for all Products delivered and Services performed prior to the effective date of termination.

13.5 Effects of Termination. Upon termination or expiration of this Agreement:

(a) OEM Partner's license to use Supplier's IP and the white-label rights granted herein shall immediately terminate;
(b) OEM Partner shall have a sell-off period of [____] days to sell or otherwise dispose of existing inventory of Branded Products, after which OEM Partner shall cease all sale and distribution;
(c) Each Party shall promptly return or destroy all Confidential Information of the other Party;
(d) All accrued payment obligations shall survive termination;
(e) Supplier shall fulfill all orders placed and accepted prior to the notice of termination.

13.6 Transition Assistance. Upon termination or expiration, Supplier shall provide reasonable transition assistance to OEM Partner for a period not to exceed [____] days, including:

(a) Cooperation in transferring customer relationships as mutually agreed;
(b) Continued supply of Products during the sell-off period at then-current pricing;
(c) Reasonable assistance in migrating data and systems;
(d) Such other assistance as may be reasonably necessary to effect an orderly transition.

Supplier shall be compensated for transition assistance at Supplier's then-current rates.

13.7 Survival. The following Sections shall survive termination or expiration of this Agreement: Section 2 (Definitions), Section 7 (IP Ownership), Section 8 (Warranties, to the extent applicable to Products delivered prior to termination), Section 9 (Limitation of Liability), Section 10 (Indemnification), Section 11 (Confidentiality), Section 12 (Data Protection), Section 15 (Dispute Resolution), and Section 17 (General Provisions).

14. INSURANCE REQUIREMENTS

14.1 Required Coverage. During the Term and for a period of [____] years following termination, each Party shall maintain the following insurance coverage:

(a) Commercial General Liability: Not less than $[________________________________] per occurrence and $[________________________________] in the aggregate;
(b) Product Liability: Not less than $[________________________________] per occurrence and $[________________________________] in the aggregate;
(c) Professional Liability / Errors and Omissions: Not less than $[________________________________] per claim and $[________________________________] in the aggregate (if Services are provided);
(d) Workers' Compensation: As required by West Virginia law (W. Va. Code § 23-1-1 et seq.);
(e) Cyber Liability / Data Breach Insurance: Not less than $[________________________________] per occurrence (if Personal Information is processed);
(f) Umbrella / Excess Liability: Not less than $[________________________________] per occurrence.

14.2 Insurance Requirements.

(a) All insurance policies shall be issued by insurance companies with a minimum A.M. Best rating of A- VII or equivalent;
(b) Each Party shall name the other Party as an additional insured on its Commercial General Liability and Product Liability policies;
(c) Each Party shall provide the other Party with certificates of insurance upon request;
(d) Each Party shall provide at least [____] days' prior written notice of any cancellation, non-renewal, or material modification of required coverage.

15. DISPUTE RESOLUTION

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of West Virginia, including the West Virginia Uniform Commercial Code (W. Va. Code Chapter 46), without regard to its conflict of laws principles.

15.2 Negotiation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through direct negotiation between senior representatives of each Party. Either Party may initiate the negotiation process by providing written notice to the other Party. The Parties shall meet (in person or by videoconference) within [____] business days of such notice.

15.3 Mediation. If the dispute is not resolved through negotiation within [____] days of the initial notice, either Party may submit the dispute to mediation administered by:

☐ The American Arbitration Association (AAA) under its Commercial Mediation Procedures
☐ JAMS under its Mediation Rules
☐ The West Virginia State Bar Mediation Program
☐ A mutually agreed-upon mediator
☐ Other: [________________________________]

The mediation shall take place in [________________________________], West Virginia.

15.4 Arbitration or Litigation. If the dispute is not resolved through mediation within [____] days of the commencement of mediation, the Parties agree that the dispute shall be resolved by:

☐ Binding Arbitration: Administered by [________________________________] in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted by [____] arbitrator(s) in [________________________________], West Virginia. The arbitrator's decision shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The West Virginia Uniform Arbitration Act (W. Va. Code § 55-10-1 et seq.) shall govern the arbitration proceedings.

☐ Litigation: The Parties irrevocably submit to the exclusive jurisdiction and venue of the Circuit Court located in [________________________________] County, West Virginia (e.g., Kanawha or Cabell County), or the United States District Court for the Southern District of West Virginia.

15.5 Jury Waiver. TO THE FULLEST EXTENT PERMITTED BY WEST VIRGINIA LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. The Parties acknowledge that West Virginia courts have generally upheld voluntary jury trial waivers in commercial contracts when entered into knowingly and voluntarily.

15.6 Injunctive Relief. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court of competent jurisdiction in West Virginia to prevent irreparable harm, including but not limited to relief relating to breaches of confidentiality, trade secret misappropriation under W. Va. Code § 47-22-2, or infringement of Intellectual Property rights, without being required to post bond or prove actual damages.

15.7 Attorneys' Fees. In any action or proceeding to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing Party. The Parties note that West Virginia generally follows the "American Rule" absent a statutory or contractual provision to the contrary; this Section constitutes such a contractual provision.

16. FORCE MAJEURE

16.1 Excused Performance. Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations) to the extent such delay or failure is caused by a Force Majeure Event.

16.2 Force Majeure Event. A "Force Majeure Event" means any event beyond the reasonable control of the affected Party, including but not limited to: acts of God; natural disasters (including floods, mudslides, severe winter weather, and wind events common to the West Virginia Appalachian region); epidemics, pandemics, or quarantines; fire; war; terrorism; riots; civil unrest; government actions, orders, or sanctions; embargoes; strikes or labor disputes (not involving the affected Party's own employees); disruption of transportation, utilities, or telecommunications infrastructure; mine-related emergencies; cyberattacks; or shortage of materials or supplies.

16.3 Notice and Mitigation. The affected Party shall:

(a) Provide written notice to the other Party within [____] business days of becoming aware of the Force Majeure Event, describing the event and its expected duration;
(b) Use commercially reasonable efforts to mitigate the effects of the Force Majeure Event;
(c) Resume performance as promptly as practicable once the Force Majeure Event has ceased.

16.4 Extended Force Majeure. If a Force Majeure Event continues for more than [____] consecutive days, the non-affected Party may terminate this Agreement upon [____] days' written notice without liability.

17. GENERAL PROVISIONS

17.1 Assignment. Neither Party may assign or transfer this Agreement, or any rights or obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement without consent in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, provided the assignee assumes all obligations under this Agreement. Any purported assignment in violation of this Section shall be null and void.

17.2 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction in West Virginia, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the remaining provisions shall continue in full force and effect.

17.3 Entire Agreement. This Agreement, together with all Schedules and Exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written.

17.4 Amendments. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by authorized representatives of both Parties. Electronic signatures shall be valid pursuant to the West Virginia Uniform Electronic Transactions Act (W. Va. Code § 39A-1-1 et seq.).

17.5 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed given when:

(a) Delivered personally;
(b) Sent by certified or registered U.S. mail, return receipt requested, postage prepaid;
(c) Sent by nationally recognized overnight courier; or
(d) Sent by email with confirmed receipt (provided that notice by email shall be followed by notice via one of the methods specified in (a) through (c) within two (2) business days).

Notices shall be sent to the addresses set forth in Section 1, or to such other address as a Party may designate by written notice in accordance with this Section.

17.6 Waiver. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver of such provision or the right to enforce it at a later time. Any waiver must be in writing and signed by the waiving Party.

17.7 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, franchise, or employment relationship between the Parties.

17.8 Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing in this Agreement shall confer any rights or remedies upon any third party.

17.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures and scanned/PDF copies shall be deemed originals for all purposes pursuant to W. Va. Code § 39A-1-1 et seq.

17.10 Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation of any provision.

17.11 Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting Party. The word "including" shall mean "including, without limitation."

17.12 Compliance with Laws. Each Party shall comply with all applicable federal, state, and local laws, regulations, and ordinances in the performance of its obligations under this Agreement, including but not limited to the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.) and all applicable consumer protection laws.

17.13 Export Compliance. OEM Partner shall comply with all applicable U.S. export control and sanctions laws and regulations, including the Export Administration Regulations (EAR) and regulations administered by the Office of Foreign Assets Control (OFAC), in connection with the sale or distribution of the Branded Products.

17.14 Non-Solicitation. During the Term and for a period of [____] months following termination, neither Party shall directly solicit for employment any employee of the other Party who was materially involved in the performance of this Agreement, without the prior written consent of the other Party. West Virginia courts evaluate restrictive covenants under a reasonableness standard, considering the protectable interest of the employer, the hardship on the employee, and the public interest.

18. SIGNATURE BLOCKS

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

SUPPLIER:

Signature: _______________________________________________

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Entity Name: [________________________________]

OEM PARTNER / RESELLER:

Signature: _______________________________________________

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Entity Name: [________________________________]

19. SCHEDULES AND EXHIBITS

The following Schedules and Exhibits are attached hereto and incorporated by reference:

Schedule 1: Pricing and Product Specifications

☐ Product descriptions and SKUs
☐ Unit pricing and volume discount tiers
☐ Minimum Order Quantities (MOQ)
☐ Lead times and delivery schedules
☐ Technical specifications and quality parameters
☐ Accepted tolerance ranges
☐ Packaging and labeling requirements

Schedule 2: Service Level Agreement (SLA)

☐ Service descriptions and scope
☐ Performance metrics and benchmarks
☐ Uptime/availability commitments
☐ Response and resolution times
☐ Escalation procedures
☐ Service credits and remedies for SLA failures
☐ Reporting and review cadence

Schedule 3: Branding Guidelines

☐ Approved trademarks and logos with usage specifications
☐ Color standards (Pantone, CMYK, RGB, HEX)
☐ Typography and font specifications
☐ Packaging design templates
☐ Co-branding restrictions (if applicable)
☐ Approval workflow for branded materials
☐ Brand compliance audit procedures

Schedule 4: Data Processing Agreement (DPA)

☐ Categories of data processed
☐ Purpose and scope of processing
☐ Technical and organizational security measures
☐ Sub-processor management
☐ Data subject rights procedures
☐ Cross-border data transfer mechanisms
☐ Data retention and deletion policies
☐ Audit rights

20. SOURCES AND REFERENCES

The following statutes and legal authorities are referenced in this Agreement and should be consulted for the current text of applicable law:

1. West Virginia Uniform Commercial Code (Sales): W. Va. Code Chapter 46, Article 2 — https://code.wvlegislature.gov/46-2/
2. Implied Warranty of Merchantability: W. Va. Code § 46-2-314 — https://code.wvlegislature.gov/46-2-314/
3. Implied Warranty of Fitness for Particular Purpose: W. Va. Code § 46-2-315
4. Exclusion or Modification of Warranties: W. Va. Code § 46-2-316
5. West Virginia Uniform Trade Secrets Act: W. Va. Code § 47-22-1 et seq. — https://code.wvlegislature.gov/47-22-1/
6. Injunctive Relief (Trade Secrets): W. Va. Code § 47-22-2 — https://code.wvlegislature.gov/47-22-2/
7. Trade Secret Damages: W. Va. Code § 47-22-3
8. Trade Secret Attorney's Fees: W. Va. Code § 47-22-4
9. Preservation of Secrecy: W. Va. Code § 47-22-5 — https://code.wvlegislature.gov/47-22-5/
10. Data Breach Notification (Definitions): W. Va. Code § 46A-2A-101 — https://code.wvlegislature.gov/46A-2A-101/
11. Data Breach Notification (Notice): W. Va. Code § 46A-2A-102 — https://code.wvlegislature.gov/46A-2A-102/
12. Consumer Credit and Protection Act: W. Va. Code § 46A-1-101 et seq.
13. Uniform Electronic Transactions Act (WV): W. Va. Code § 39A-1-1 et seq.
14. Workers' Compensation (WV): W. Va. Code § 23-1-1 et seq.
15. Interest Rates: W. Va. Code § 47-6-5
16. Comparative Fault: W. Va. Code § 55-7-13a
17. Uniform Arbitration Act (WV): W. Va. Code § 55-10-1 et seq.

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. Users must consult a qualified attorney licensed in West Virginia before executing this Agreement.