Friendly Songs Dealer Agreement

Independent Dealer Policies And Procedures

These Policies and Procedures govern the way Independent Dealers conduct business with the company, other Independent Dealers, Customers, and the general public. This document, in conjunction with all of the Policies posted by the company on the web site comprise the complete Contract between you and the company. Failure to comply with the provisions of these documents may result in termination of your Independent Dealership and forfeit your rights as an Independent Dealer. The company reserves the right to modify or amend these Policies and Procedures at any time. Any changes or modifications shall automatically become part of your Contractual Agreement with us. This document contains a version date and Independent Dealers are responsible for being in compliance with the most recent version of this document.

Dealer Agreement

1. The Company.
   The Company, including but not limited to Kid Music and Friendly Songs, are divisions of KMConsolidated, LLC and are hereinafter referred to as the "Company," is an dealership based, e-commerce website hosting, online shopping, online rewards, small business coaching & training, and small business support company providing Independent Dealer based reseller opportunities for businesses, non-profits, and individuals. The Company partners with suppliers to distribute and sell their products, works to develop new products, and brings to market those products which are best suited to the company business model. Products must be of the highest quality to be considered part of our product line. The company also provides services and training programs both online and offline for our Independent Dealers and customers. The Company operates web sites under the names KidMusic.com, PersonalizedKidMusic.com, PersonalizedKidsMusic.com, FriendlySongs.com, PersonalizedFriendlySongs.com, MelodiesAboutMe.com, StarCatcherMusic.com, AChildSong.com or any other domain which is owned or operated by the Company.
2. Definitions.
• Independent Dealer or Retailer and are hereinafter referred to as the "Dealer" - An individual, partnership, corporation or other legally recognized entity that has decided to utilize the Companies product line for resale, is a burn-on-demand dealer, is a drop-ship dealer or is a combination of these. An Independent Dealer is an independent business of its own who is reselling the Company products & services on and on-going basis. Individuals are considered independent contractors.
• BOD - A acronym for Burn-On-Demand Dealer, i.e. the type of dealer which produces our music products using the dealers own computer and our proprietary software. BOD dealers are licensed to produce one or more of our music albums.
• Drop-Ship Dealer - A drop-ship dealer is a dealer who markets our products via a drop-ship arrangement with the Company. All products ordered through a dealers drop-ship dealer web site are produced and shipped by the Company.
• Retailer - A dealer who runs a Brick and Mortar style business that resells one or more of our products by first buying wholesale from the Company and maintaining a stock of the products to resell at retail prices to the public.
• Dealer - A term used to represent all of our dealer types including but not limited to: Independent Dealers, Drop-Ship Dealers, BOD Dealers, Retailers, etc.
• Contract - The agreement between a Dealer and the Company is comprised of these Policies and Procedures and the Dealer Agreement/Order Form used when placing the initial order with the Company.
• Customer - An individual, partnership, corporation, non-profit, or other legally recognized entity that purchases products or services through the the Company web site, but who is not also an Independent Dealer.
• Merchant Partner - A third-party vendor that provides products or services to the company. The company is responsible for the wholesale purchase of products, royalties paid for those products, and the copyrights that are set forth by the Merchant Partners on those products.
3. Becoming an Independent Dealer
• To become an Independent Dealer, you must complete and submit an order form, hereinafter referred to as the Dealer Application, for wholesale products or services with the Company. An Independent Dealer has been accepted once the Company has received their order form and the set-up fees (if applicable) have been paid in full. The Company reserves the right to accept or reject, at its sole discretion, any individual or business entity as an Independent Dealer.
• When a completed Independent Dealer Application is submitted through the web site, the dealer is provided a user name of his or her choosing (provided that user name is not already being used). This user name provides the Independent Dealer with access to the Company web center and e-commerce site. For a corporation or partnership, the Independent Dealer Application must also include the name and information of a primary individual that is authorized to conduct business for the corporation or partnership.
• Dealers are encouraged to read this dealer agreement prior to becoming a dealer. This dealer agreement is available for review at any time via the web site. The dealer is responsible for reading and accepting the most current copy of this agreement. By continuing to use the BOD software, purchasing wholesale products for resell or by participating in the Drop-Ship program the dealer is agreeing to adhere to the most current agreement at all times.
4. Restrictions on Becoming an Independent Dealer
• An applicant must be at least 18 years of age, or at least the age of legal contractual capacity in the jurisdiction of which they are a resident.
• The spouse of an existing Independent Dealer is considered a part of the same existing Independent Dealer business. In the case of two existing Associates marrying, the Company will not cause the Independent Dealers to abandon any of their businesses. Both the husband and wife will be allowed to keep his and her existing business. Upon divorce or legal separation of Independent Dealers, the Company shall be notified in appropriate legal form regarding the disposition of the joint business.
5. Transfer/Assignment of an Independent Dealer Business.
   An Independent Dealer may not sell, assign or transfer his or her business without written application and subsequent approval by the Company.
6. Death or Incapacity.
   Upon the death or incapacitation of an Independent Dealer, the Company shall be notified in appropriate legal form regarding the disposition of the business. All Independent Dealer's rights and responsibilities shall pass to the Independent Dealer's heirs upon written notification and approval of the Company.
7. Refund Policy.
• All purchases of products or services made by Customers and Independent Dealers through the Company web sites are made between the Customer or Independent Dealer and the Company. The refund or exchange policies are determined at the sole discretion of the company and/or the Merchant Partner from which the product or service is purchased. The company is not responsible for any aspect of a transaction between a Customer or Independent Dealer that is handled outside of the e-commerce web site of the company.
• All setup fees are considered to be non-refundable. Please read all contract information before signing up and paying the set-up fee.
• BOD Dealer Kits, Album Licenses and Burn Credits are not refundable without prior written consent once the BOD package is shipped or burn credits are applied. All BOD dealer supplies, kits, licenses and credits are final and are not refundable after 30 days.
8. Territories.
   The Company does not recognize any exclusive territories. Therefore, Independent Dealers are not restricted from conducting business anywhere in the countries in which the Company operates. Drop-Ship dealers are limited to the countries that the Company is currently shipping products to. BOD dealers are limited only to the countries that the Company agrees to do business with. The Company reserves the right to not do business with a dealer in a country where it doesn't feel it's interest are sufficiently protected by that countries legal system.
   
   Dealers may sell via thier own websites and their own retail stores, kiosks, etc provided they maintain pricing within the MAP guidlines.
   
   The following are considered "Protected Territories" and are resticted from Dealers. Dealers who attempt to sell on these channels will have their dealership license revoked.
• Amazon.com
• Sears.com
• Kmart.com
• WalMart.com
9. Income Representations.
• Independent Dealers shall not make any false or misleading statements about their own or any other Independent Dealer's income. All the Independent Dealers are strictly prohibited from making any claims of potential income.
• The Company Business is a performance-based business that rewards people in direct proportion to their effort and the sales of products. The bigger the financial goal, the more time and effort a the Independent Dealer will need to put into his or her business. With a Dealership Business, one can work as much or little as he or she likes. The rewards are based directly on the actual production of your independent sales through the BOD software or through the sale of products. Even though one can benefit from the the Company Products it will still require individual effort to become successful.
10. Expenses, Licensing and Contractual Obligations.
• All Independent Dealers are independent contractors and are responsible for any and all expenses and liabilities that result from operating their business. These expenses include, but are not limited to, licenses required to operate a business, legal costs and fees, telephone expenses, advertising, travel, etc. Independent Dealers have no authority to enter into contracts or otherwise incur obligations on behalf of the Company
• Independent Dealers are strictly independent marketers and resellers of the Company Programs, the Company Online Shopping, the Company Business Tools, Miscellaneous other current and future products & services, and are not purchasers of a franchise or a distributorship. The Contract between the Company and an Independent Dealer does not create an employer/employee relationship, agency, partnership or joint venture between the Company and the Independent Dealer. The Independent Dealer has no authority to bind the Company to any obligation. Each Independent Dealer shall indemnify and hold blameless the Company from any claims, damages, or liabilities arising out of the Independent Dealer's activity.
11. Limitation of Liability.
    In no event shall the Company be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the Contract. While the Company will assist a dealer as much as possible, ultimately the dealer is responsible for the decisions they make as independent dealers which will affect the dealers ability to succeed with any of our dealer programs.
12. Ethics.
    Independent Dealers must comply with all federal, state/provincial and municipal laws regarding the Independent Dealer's business and must not engage in any unlawful or illegal trade practices or business activity. Independent Dealers shall conduct their business in a manner that reflects the highest standards of honesty, integrity and responsibility towards Customers, other Independent Dealers, the Company and the general public. The Company recognizes its reputation and public image to be a major asset and will guard against unacceptable behavior by those Independent Dealers who step beyond the boundaries of good business ethics. The Company will intercede to correct unethical activity on the part of any Independent Dealer. Verified unethical activities will be justifiable cause for termination of their Independent Dealer's business including but not limited to: deactivation of a dealers web site, security key and retraction of the dealers license to produce our products via the BOD software.
13. Prices and Product Availability.
    Prices for products & services offered by the Company are completely within the control and discretion of the Company. All product details may be changed at any time. We will update product information and prices on our web site when appropriate. The Company will display all prices on products available at the Company web site. The Company cannot guarantee availability of all products for sale or shipment, and the Company will endeavor to note any limitations on availability on the Company online web site. You may not display the Company products at prices below 75% of MSRP on your own dealer owned web site(s) without express written permission from the Company. Dealers may not sell the Company products at prices below 75% of MSRP when using Public Websites like Etsy, eBay, etc. The Company will always display on the Companies web site products at 100% MSRP. Dealers who consistently sell Company products at less than the MSRP guidelines above may be justifiably terminated.
14. Shipment of Supplies or Products.
    All dealer supplies and/or products are shipped via the method selected by the dealer or customer during the checkout process or as noted on the order form. Optional Shipping Insurance is offered and can be added to the dealers or customers orders. The Company is not responsible or liable to the dealer or customer for packages which are delayed, lost or damaged by the shipping company regardless of why, including but not limited to, fires, strikes, lockouts, acts of God or any other causes beyond the reasonable control of the Company. If the Optional Shipping Insurance is purchased at the time of the initial order then the Company will replace the damaged or lost products after a reasonable effort has been exhausted to remedy the situation via the Shipper.
15. Quality of Supplies and Equipment used by Dealers.
    Dealers are expected to use good quality supplies when making CDs or Singing Stuffed Animals via the BOD Dealer System. Failure to use good quality supplies, especially good quality media and good quality CD burners, could result in badly made CDs, loss of burn credits, customer dissatisfaction and further quality issues. The Company is not responsible for replacement of burn credits or loss of sales caused by the use of poor quality supplies and equipment.
16. Warranty.
    For specific warranty information please refer to the Company posted refund and warranty policy on the Company web site. The purchase of a product or service is a transaction between the Company and the Customer or Independent Dealer and therefore is covered by the posted policies on the Company web site. No other warranty of products or services by the Company is expressed or implied.
17. Regulatory Approval.
    No Independent Dealer shall state or imply that the promotion, operation or organization of the Company has been approved, sanctioned, or endorsed by any regulatory authority. The Company is a current member in good standing with the Better Business Bureau (BBB) of Greenville, South Carolina. Independent dealers are not considered part of the Company and therefore are not part of the Companies membership with the BBB. Independent dealers may join or become part of the BBB or any other regulatory authority by registering their independent business with those authorities.
18. Cancellation.
    An Independent Dealer, upon notification to the Company, may cancel the Independent Dealership with the Company at any time by registered mail. Upon cancellation, BOD dealers are required to return the BOD security key(s) they have in their possession within 30 days of such notice.
19. Term or Termination.
• The terms of this agreement begin upon agreement by the dealer to become a Dealer and will remain in full force while the dealer is either in possession of the Companies BOD software and/or licensing key and/or is using the Company Drop-Ship Dealer web site.
• The Company may elect in its sole discretion to terminate an Independent Dealer for just cause at any time. Review the Company's Enforcement Procedures for more details regarding termination. Events which may cause the Company to terminate an Independent Dealer may include but are not limited to:
1. Breach of this agreement as amended or modified from time to time
2. Making unauthorized claims or misrepresentations or discrediting the Company
3. Producing unauthorized or misleading promotional materials
   1. Any listings must use our approved images as provided in the Dealer Resource Center. Dealers are NOT authorized to make their own album images or CD labels other than the ones provided by the BOD software without prior and written approval.
   2. Websites, Listings, and Descriptions must contain the words "Friendly Songs^®" clearly so as not to confuse customers as to who owns the copyright of the content.
   3. Album listings must contain the "Album Name" as provided by Friendly Songs^®  BOD software.
4. Producing unauthorized copies of BOD software, licensed CDs or BOD products
5. Failure to maintain published product pricing per MSRP guidelines
6. Fraudulent or other illicit and illegal activities with regard to the Company business
7. Upon conviction of dealer for a felony which could adversely affect the goodwill of the Company
8. Failure to maintain and to keep current with any fees owed to the Company, i.e. sign-up fees, hosting fees, product costs or fees, etc
• Termination of an Independent Dealer terminates any and all rights to commissions, CD album licenses, BOD security keys, rebates, referral dollars, or any other incentives, and will be effective upon notification of termination to the offending Independent Dealer by the Company. The Company reserves the right to negotiate terms, but isn't required to, for violation of these Policies and Procedures.
• Upon termination the Dealer must immediately discontinue the use of all company products, images, software, security keys, customer lists, sales aids and any such company marks, images, trademarks and copyrights. The dealer is required to return all materials to the Company within 30 days of such termination.
20. Taxes on Products and Services.
    Sales taxes are applicable for all sales to customers or dealers living in South Carolina. The Company will collect the taxes for those sales and forward them to the appropriate taxing authority. The Company is not required to collect sales tax for customers located outside of South Carolina. Legal corporations within the state of South Carolina may request SC Taxes to be waived for products purchased for resale by providing to the Company a valid SC Resellers Certificate.
21. Waiver.
    No waiver by the Company of any right under this agreement shall constitute a waiver of any other or further right. Any waiver by the Company must be in writing and signed by an officer of the Company.
22. Use of Company Name.
    When graphics, logos and other company images are used by an Independent Dealer they must reference the company as the copyright holder and/or reference the Independent Dealer as an "Authorized Reseller" of the Company.
23. Advertising.
    Independent Dealers may not represent the Company in the media without the express written consent of the Company. All media inquiries regarding Company products are to be referred immediately to the Company. If there is any doubt it would always be best to send a copy of the proposed advertising to the Company to request specific approval prior to the use of said advertising. We will respond to all requests within 48 hours. The Company is not responsible for lost advertising fees because of failure to get prior approval from the Company for that advertising. The Company is also not responsible for the effectiveness of the Dealers advertising. The Company does not assist Dealers in the cost of the Dealers advertising.
24. Proprietary Rights.
    The Company reserves ownership rights including without limitation copyrights to the contents of all Company produced products and materials including literature and information contained on the Company's Internet web sites, all music licensed by the Company and the software which is used by the BOD dealers. Any unauthorized use or reproduction by any means is strictly prohibited. Dealers are not permitted to say or infer that they are the owners or creators of our copyrights, trademarks or licensed products. Any dealer who is found to be using misleading marketing material claiming to be the owners or creators of the music will be immediately terminated, without refund and without recourse.
25. Confidentiality.
    The Company may supply Independent Dealers product information, data processing information, and other reports containing information concerning an Independent Dealer. All information regarding the identity of purchasers, the products purchased by such purchasers, the sales amounts generated by purchasers, the identity of Customers and Independent Dealers in the sales organization of any Independent Dealer, and the amount of sales generated by other Independent Dealers in such organization belong solely to the Company, are proprietary and confidential, constitute trade secrets of, and may not be used by or disclosed to any person or entity other than the intended recipient of the report or reports from the Company. Any reports and information furnished to Independent Dealers by the Company may be used only by Independent Dealers for the purpose of promoting sales of the products and services offered by the Company and may not be used in connection with any other business or activity, or to compete with the Company directly or indirectly, or in any manner that would be considered unlawful.
26. Prerecorded Telephone Solicitation.
    The use of Company names or materials may not be made with automatic calling devices to solicit Customers or Independent Dealers.
27. Mass E-Mail or Spamming.
    Sending mass e-mail or spamming is strictly prohibited. This includes sending multiple copies of any unwanted or unrequested e-mail, even if executed through newsgroups, purchased mailing lists, or third-person distributors. If an Independent Dealer in any way participates in the act of spamming, that Independent Dealer will receive a warning. If the Independent Dealer fails to respond within 24 hours with an agreement to cease sending such e-mails, the Independent Dealer will be immediately suspended facing possible termination and any other Independent Dealer benefits will be revoked. If an Independent Dealer replies with an agreement to cease sending mass e-mails but continues to do so, the above penalties will be invoked immediately and without further warning, and termination will be a possible consequence.
28. Partial Invalidity.
    Should any portion of this agreement, or any other instruments referred herein or issued by the Company be declared invalid by a court of competent jurisdiction, the balance of such instruments shall remain in full force and effect.
29. Compliance.
    It is mandatory that all Polices and Procedures must be complied with. These regulations have been established to protect the rights of the Company, the Independent Dealer, and the Independent Dealers Customers. Infractions are considered very serious and will be addressed accordingly.
30. Jurisdiction.
    This Agreement shall be governed by the laws of the State of South Carolina and any claims or disputes between the parties to this Agreement shall be brought in Oconee County Court, in Seneca, South Carolina. The dealer, by agreement agrees and acknowledges that they have had an opportunity to consult with legal counsel and that they knowingly and voluntarily waive any right to trial by jury of any dispute pertaining to or relating in any way to the terms of this agreement. This agreement constitutes the entire agreement pertaining to the subject matter within this agreement and that this agreement supersedes all prior and contemporaneous oral or written agreements, representations and understandings between the dealer and the Company. Exceptions to this agreement can only be achieved by written amendment and signed by an authorized agent of the Company.
31. Dispute Resolution.
    If any dispute arises between the Company and the Independent Dealer regarding this Agreement which cannot be resolved by the parties themselves, such dispute must be submitted to binding arbitration in accordance with the rules of the American Arbitration Association applicable to commercial arbitrations. The arbitration will be held in Oconee County, South Carolina, and judgment upon the decision of the arbitrator may be entered in any court having jurisdiction over the matter. The Independent Dealer expressly consents to personal jurisdiction in Oconee County, South Carolina. Should an Independent Dealer initiate any arbitration or other legal proceeding which involves issues arising out of this Agreement, and should the Company become the prevailing party in such action, the Company will be paid its reasonable attorneys' fees and costs by the Independent Dealer. Except for conflict of laws, the laws of South Carolina shall apply to this Agreement.
32. Activity Requirements.
    There is no minimum sales requirements made of Independent Dealers. However, BOD dealers are required to keep their BOD software up to date via an internet connection. Failure to do so will prevent further use of the software until the software can be re-authenticated and updated.
33. Disclaimer.
    The Company makes the following representations and disclaims any representation to the contrary. The Company does not represent that the Company will provide marketing support in any way to an Independent Dealer. The Company does not represent that the Company will find customers for an Independent Dealer. The Company does not represent that the Company will find other Independent Dealers for an Independent Dealer. The Company does not represent that the Company will purchase (buy-back) products from an Independent Dealer except as noted in our warranty/repair policies stated on the web site. The Company does not represent that an Independent Dealer will earn more income than the Independent Dealer spends developing it's business. The Company does not guarantee the success of an Independent Dealer. The Independent Dealer acknowledges that they have not received any advice or representation to the contrary from the Company. The Independent Dealer acknowledges that they do not expect any of the disclaimers mentioned above. The Independent Dealer does also acknowledges that they are solely responsible for the success or failure of their business and will not hold the Company responsible for the Independent Dealers ability to make money.
34. Amendments.
    The Company reserves the right to modify or amend terms of the Contract from time to time at its sole discretion without prior notification. By continuing to use the BOD dealer software, purchase goods or products at wholesale (and for resale) or use of the Drop-Ship Dealer web site the dealer is agreeing to the current Independent Dealer Agreement and the Dealer agrees to abide by any such amendments added to this agreement.

Last updated May 28, 2019