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Retailer Agreement

Retailer Agreement

ITEMS PURCHASED. Seller agrees to offer Retailer any or all of the following products (“Goods”) in accordance with the terms and conditions set forth in this non-exclusive Agreement.

PRICING AND ORDERS. Goods will be ordered at prices as set forth in this Agreement, “Wholesale Unit Price”, and subject to the terms and conditions of sale and shipment established by the Seller from time to time and in effect at the time Seller accepts the order. The Seller reserves the right to change prices upon reasonable notice to the Retailer for subsequent purchases. The Seller agrees to exercise commercially reasonable best efforts to supply the Goods to the Retailer in a timely fashion. For ordering in quantities over 1, the Seller is offering discounted per unit pricing. Pricing structure for various quantities is outlined in Exhibit A. 

Orders must be submitted via with payment in full upon order placement. Once payment has been received, Seller will typically ship Goods to Retailer within five business days. If there will be any delay in shipment of Goods beyond five business days, Seller will notify Retailer of any such delays. 

SALE OF PRODUCTS. The Seller agrees to sell Goods at the prices indicated as “Retail Price” in accordance with order procedures as may be reasonably communicated by the Seller from time to time. The Seller may amend prices upon notice to Retailer, provided that any amendment shall reflect similar prices applicable to the Goods and remain consistent in pricing Seller offers to other customers. 

Retailer agrees to not publish or list pricing for Goods under Retail Price.  However, Retailer may include the Goods in a care plan with other items and services without a line-item price as part of the total care plan. Goods may be included in a care plan for less than Retail Price, but cannot be sold individually for less than Retail Price and this pricing may not be published outside of Retailer office.

NONEXCLUSIVE APPOINTMENT. Upon execution of this Agreement, Seller appoints Retailer as a non-exclusive reseller of the Goods purchased from Seller, and Retailer accepts said non-exclusive appointment. Seller reserves the unrestricted right to sell or grant others the right to also sell the Goods. 

TAXES. The parties agree that the payment of any taxes levied on the Goods (other than taxes based on income) shall be the Retailer’s responsibility (including, without limitation, federal, state, local, use, or other taxes), and the Retailer shall report and pay such taxes to the appropriate taxing authority as required by law. Retailer hereby indemnifies and holds Seller harmless from any and all said taxes on Retailer’s sale of the Goods.

TITLE/RISK OF LOSS. All Goods shall be sent in accordance with the Seller’s current shipping policies. Title and risk of loss of Goods shall pass to the Retailer upon delivery by the Seller to the Retailer or its agent.

RETAIL STORE FACILITIES. Retailer shall offer Goods from its retail store locations as mutually agreed by the parties in accordance with terms set forth in the Agreement. Retailer shall provide Seller with a list of all facilities selling Goods from Seller. Retailer shall, in no way, sell Goods on websites other than Retailer’s own business website in accordance with terms set forth in the Agreement.

PAYMENT TERMS. Payment shall be made to Seller prior to the shipment and receipt of Goods. Seller does not offer net thirty payment terms. All sales are final. 

DELIVERY. Seller will arrange for delivery by carrier chosen by Seller. Goods will typically ship within five business days of order and payment receipt. 

WARRANTIES. Retailer shall be entitled to any manufacturer warranties generally offered in connection with the Goods, subject to their terms and enforceability. 


INSPECTION. The Retailer, upon receiving Goods, shall have a reasonable opportunity to inspect the Goods to determine whether the Goods conform to the requirements of this Agreement. If Retailer determines, in good faith, the Goods do not conform to the standards of material or/and workmanship, Retailer may return the Goods to the Seller at the Seller’s expense. The Retailer must provide written notice to the Seller of the reason for returning the Goods. The Seller will have seven days from the return of the Goods to remedy such defects or replace the Goods, at Seller’s option, under the terms of this Agreement. 

INTELLECTUAL PROPERTY. Retailer shall obtain no right, title or interest in or to any of the proprietary rights of the Seller, Goods manufacturers or their licensors, including, without limitation, rights in or to the trademarks, trade names, slogans, logos, copyrights or patents owned, registered, pending registration or used by any of them. Any such use of such intellectual property shall be by prior written consent and according to the policies and guidelines communicated by the Seller. 

TERM. The term of this Agreement shall be for one year and shall automatically renew for successive one year terms unless terminated by either party under the terms of this Agreement.

DEFAULT.  The following shall constitute defaults under the terms of this Agreement: 

The insolvency or bankruptcy of either party. 

The levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency of a party’s property. 

The failure of Retailer to timely pay for any Goods ordered under the terms of this Agreement. 

The failure of Seller to deliver the Goods in the time and manner as provided for under the terms of this Agreement. 

REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Agreement, the other party may elect to terminate this Agreement if the default is not remedied within fourteen days after receipt of written notice of the default. The notice shall detail the specific nature of the default. 

TERMINATION. This Agreement may also be terminated by either party, with or without cause, upon 30 days written notice to the other party.

COVENANTS NOT TO COMPETE OR INTERFERE; CONFIDENTIALITY. During the term of this Agreement and for twelve (12) months following the termination of this Agreement, Retailer shall not interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between the Seller and any of Seller’s agents, clients, vendors, manufacturers, suppliers, lessees, employees, affiliates, members, or investors, or compete with the Seller for any of its clients, or use or attempt to use any of Seller’s vendors or suppliers, and shall not, directly or indirectly, make or distribute a substantially similar product(s).

The parties agree that the terms of this Agreement and any information regarding the Goods provided by Seller to Retailer including, but not limited to, the wholesale and member pricing are confidential. The parties may only disclose the terms of this Agreement or information regarding the Goods including, but not limited to, the wholesale and member pricing provided by Seller to their attorneys and accountants. 

ASSIGNMENT AND DELEGATION.  Seller reserves the right to assign any rights or interests in this Agreement without the prior written consent of Retailer. Retailer shall not assign this Agreement to any other person or entity without the express written consent of the Seller. 

SUCCESSORS. All of the terms and provisions of this Agreement shall be binding upon or shall insure to the benefit of the parties hereto, their assigns, heirs, administrators, executors or successors.

MODIFICATIONS OR AMENDMENTS. No modifications or amendments will be made to this Agreement unless in writing and signed by the parties.

WAIVER. No waiver of any provision of this Agreement or any right or obligation of a party will be effective unless in writing and signed by the parties. The failure of either party to enforce a right will not constitute a waiver.

SURVIVAL OF OBLIGATIONS. The respective obligations of Seller and Retailer which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement will survive.

SEVERABILITY. If any part of this Agreement is unenforceable, the remainder of this Agreement will continue in full force and effect.

JOINT DRAFTING. Both Seller and Retailer have had the opportunity to review and recommend changes to this Agreement and to seek professional input as desired. Ambiguities of intent or language shall not be construed against either party. 

GOVERNING LAW, VENUE AND JURISDICTION. This Agreement shall be governed by the laws of the State of California. The exclusive venue for any litigation or court action arising out of or related to this Agreement shall be in the state and federal courts located in Orange County, California. Seller and Retailer consent to the jurisdiction of the courts located in Orange County, California for all litigation and court action arising out of or relating to this Agreement. The parties acknowledge and agree that the provision of certain services under this Agreement and applicable Services Order Forms may be subject to the Rules and Regulations and the administrative decisions of the Federal Communications Commission made pursuant to its quasi-legislative and quasi- judicial powers. 

ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written agreements. No changes or additions to this contract shall be binding unless made in writing and signed by the parties. There are no other agreements, representations, or warranties other than those set forth herein.

EXECUTION, COUNTERPARTS. This Agreement may be executed and delivered in original form or by electronic or facsimile means, in one or more counterparts, and each counterpart will be read and construed as one and the same instrument as if the parties had executed the same document in the presence of each other.

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