NON-EXCLUSIVE WHOLESALE DISTRIBUTION AGREEMENT
This Distribution Agreement (“Agreement”) is made this ____day of ______________, 2020 by and between Life Infused, LLC (“Life Infused”) and _________________________________ ____________________ , (“Wholesaler”) a _______________________________ Sole Proprietor / Corporation/LLC.
Wholesaler has provided copies of its business licenses (if a Corporation or LLC) and affirms that it has the requisite legal authority to enter into this Agreement and conduct the business described herein. Wholesaler wishes to obtain a non-exclusive distribution agreement for the retail distribution, sales, brand development and marketing rights for various products sold by Life Infused (“Products”) to Wholesaler.
- Wholesaler shall use its best efforts to market and sell the Products. Wholesaler shall sell Products only to (a) end consumers or (b) entities that sell only to end consumers (such entities hereinafter called “Retailers”). Wholesaler hereby agrees to comply with the then-current Life Infused’s Brand Management Policy, including the Minimum Advertised Price policy included therein, the now-current version attached hereto as Exhibit A. Wholesaler acknowledges that Life Infused may unilaterally modify its Brand Management Policy during the term of this Agreement.
- Wholesaler acknowledges that it is not permitted to sell Products to or on third party merchant sites such as Amazon, eBay, Wal-Mart, or any other sites that Life Infused, in its sole discretion, considers to be similar. Breach of this term is grounds for immediate termination of this agreement. Wholesaler also agrees that it will not sell Products online at wholesale prices using Pay Per Click advertising as that term is commonly understood.
- Theterm of this agreement is one (1) year with automatic annual renewals thereafter based on Life Infused’s satisfaction with Wholesaler’s commercial performance and conformance with this Agreement. If Wholesaler decides not to renew this Agreement, Wholesaler will notify Life Infused of its intent to terminate this Agreement at the end of the term via registered letter or email with delivery receipt at least 60 days prior to the end of the term.
- Wholesaler acknowledges that this Agreement is non-exclusive and that Life Infused may appoint other entities to provide services identical to Wholesaler’s services at any time and without advance notice. Wholesaler acknowledges that Life Infused may terminate this Agreement for any reason without advance notice. Wholesaler acknowledges that Life Infused may terminate this Agreement for the violations of the Brand Management Policy or for violations of ethical business practices, as determined by Life Infused in its sole discretion, or criminal violations by employees, officers, owners, or principals of Violations of ethical business practices include, but are not limited to: violations of trade and export law, failure to collect and remit to the proper authorities all sales and use taxes arising from Wholesaler’s activities or any other taxes owed by Wholesaler, failure to pay license fees or related expenses, violation of FDA, FTC or any other applicable regulations, immoral or aberrant personal conduct, or association with criminals.
- Other non-exhaustive examples of unethical business practices or violations of the Brand Management policy that may trigger immediate termination of the Agreement by Life Infused include if Wholesaler claims benefits not demonstrated in third party certified laboratory facilities nor posted on the Life Infused company website; if Wholesaler repeats or publishes unsubstantiated claims regarding health or curative benefits of Products without Life Infused’s express written permission; and if Wholesaler implies in any way that Products are sold as anything other than a Nutritional Supplement only and are not meant to diagnose, treat or cure any disease or condition
- Wholesaler shall be responsible for all permits, licensing, registration, and marketing expenses in selling Products to end consumers or As Life Infused sees fit, Life Infused shall share general use testing, support, and collateral materials with Wholesaler to promote Products. Wholesaler shall facilitate any Governmental approvals or requirements that are needed to allow the successful marketing and selling by Wholesaler of Products.
- Wholesaler may use Life Infused’s brand name on Product packaging, reports, and sales collateral but only in connection with sale of Products. Wholesaler has no rights, title, and/or interest under this Agreement to any Trademarks, trade names, distinctive packaging, and designs of Life Infused and/or any of its affiliates used on or in conjunction with Products sold by retailer. Wholesaler acknowledges that all patents, trademarks, and processes or documentation pertaining to Life Infused, its brands, or Products and the relevant exploitation rights are the exclusive property of Life
- Wholesaler agrees to develop and maintain a unique website that, in Life Infused’s sole opinion, is in no way confusingly similar to Life Infused’s own website. Wholesaler will not sell Products from any website that it does not own, operate, and control. Life Infused may grant Wholesaler certain specific usage rights to display or print photos of Products and Life Infused Trademarks, trade names, and distinctive packaging only for the promotion of Products and only for use on websites owned, operated and controlled by Wholesaler. Any other uses or any uses on any other websites requires written consent of Life Infused. Wholesaler acknowledges that Life Infused owns all rights to any such photos. Wholesaler agrees not to modify, alter, edit, or change any such photos.
All claims made by Wholesaler regarding any alleged non-conformity of Products or their shipment shall be handled on a case by case basis during which time Life Infused has the right to inspect any quantity of the Products involved before taking any action. If such review and testing by Life Infused confirms a non-conformity not due to any fault of Wholesaler, including if Product is not suitable for sale, then Wholesaler shall deliver such quantity involved as Life Infused shall direct in writing and at Life Infused expense and Life Infused shall, in its sole discretion, replace such quantity of Product with conforming Product free of charge, or grant Wholesaler full credit for the amount involved. This shall be the sole and exclusive remedy for any such Product non- conformity. In no event shall Life Infused be liable to Wholesaler, Retailer, or any end customer for any lost profits or any other incidental or consequential damages in connection with any such Product non-conformity.
Life Infused shall sell Products to Wholesaler in packaged, finished, or bulk form for resale in compliance with this Agreement. Life Infused represents and warrants that the Products sold to Wholesaler under this Agreement shall be of good quality, manufactured in accordance with good manufacturing practices, fit for use pursuant to their indications, and free from any defects in material and workmanship. Products are considered “fit for use” if they conform to the general performance attributes and the specific applications outlined on the Life Infused web site. Life Infused makes no other warranty regarding Products.
Wholesaler shall inspect each shipment of the Product and each shipment will be considered accepted unless Wholesaler gives written notice to Life Infused detailing any alleged non-conformities within ten (10) calendar days after receiving each shipment. Life Infused shall promptly review any written claim of non-conformity accompanied by photographs made by Wholesaler, received within said deadline.
Wholesaler shall abide by the payment and shipment terms agreed to at the time of acceptance of the
Wholesaler jointly and severally indemnifies Life Infused and its officers, employees, and unit holders against any and all liabilities accrued through the performance and/or breach of this
Wholesaler acknowledges that: its account and any websites may be periodically monitored to ensure compliance with this Agreement; Wholesaler must also comply with the terms of the Brand Management Policy, current version attached; Life Infused might in the future differentiate between an account like Wholesaler’s and a Practitioner Account which will be determined by training and scope of practice and could affect the Products and prices available to
Wholesaler and Life Infused shall submit to non-binding arbitration any irreconcilable dispute prior to seeking relief in a court of law. If arbitration fails to provide an agreeable resolution to the dispute, either equitable relief or damage at law or both may be sought for breaches or threatened breaches of this Agreement. The prevailing party will be entitled to recover reasonable attorney fees and all court costs in accordance with the laws of the State of Arizona. This Agreement shall be interpreted under the laws of the State of Arizona without regard to its choice of law rules. Any lawsuit regarding this Agreement shall be brought in the appropriate court in the State of Arizona.
This Agreement constitutes the complete agreement between Wholesaler and Life Infused and supersedes all prior agreements, written or oral between the parties. This Agreement may be amended by mutual written agreement under original signature of both Wholesaler and Life Infused, except that the Brand Management Policy may be amended unilaterally by Life Infused.
Trade Name, if any
Brand Management Policy
Purpose of this Policy
Life Infused has invested substantial resources over many years to build the strength of the brands it owns or controls (“Brands”). Actions taken by Life Infused to build the Brands include selling quality products, marketing and advertising the Products and Brands in ways consistent with a Brand image appreciated by our end consumers and selling our Products directly to end consumers and through an appropriate number of Wholesalers (who sell only to end consumers or Retailers) and Retailers (who sell only to end consumers) in appropriate locations who market and sell our products consistently with those Brand images.
Life Infused will continue to invest substantial resources and take actions that it thinks are consistent with the right image for each of its Brands. To ensure that our end consumers experience that same Brand image while our Products are marketed and sold by Wholesalers and Retailers, Life Infused is unilaterally adopting this Brand
Management Policy (“Policy”) for our products sold in the United States (“Territory”) by Wholesalers and Retailers.
Authorized Wholesalers and Retailers
In the Territory, Life Infused will sell only to end consumers, Wholesalers, and Retailers. By your receipt of this Policy and your continued ordering of any Life Infused Brand products (“Products”), you agree to adhere to this Policy and be a Wholesaler or Retailer. Only Wholesalers and Retailers are allowed to promote and sell any Products in the Territory. Also, Wholesalers and Retailers are allowed to sell and promote Products only in the Territory.
Authorized Wholesale and Retail Locations
Wholesalers and Retailers are allowed to promote and sell Products only from approved Authorized Locations. Such Authorized Locations can include both physical Authorized Stores and/or Authorized Websites. Authorized Websites shall be owned, operated and controlled by Wholesaler or Retailer. Authorized Websites do not include Amazon, eBay or similar third-party sites. Life Infused reserves the right to quarterly require that each Wholesaler and Retailer submit a list of that Wholesaler’s or Retailer’s current or proposed locations, both physical and online, and including any consumer-facing names for each. Life Infused reserves the right, in its sole discretion, to determine if any such locations should not be or become Authorized Locations because of their inconsistency with the Life Infused Brand image or any part of this Policy. Life Infused reserves the right to stop shipping any Product that could end up being sold through such an inappropriate location or to take any other step listed in the Penalties for Violations of Policy section of this Policy.
Use of Brand Elements
One aspect of Life Infused Brands images in which Life Infused has invested considerable resources is the set of Brand Elements associated with each of Life Infused’s Brands. Such Brand Elements include all Products (whether patented or not), Life Infused Brand trademarks and copyrighted materials and any other material reasonably associated with Life Infused Brands. Because of Life Infused’s considerable investment in these Brand Elements, it must take steps to ensure that they are used appropriately.
Only Wholesalers and Retailers may use the Brand Elements. Such use of these Brand Elements by Wholesaler or Retailer must be consistent with this Policy. Authorized Retailers may use the Brand Elements only for the promotion and sale of Products in the Territory. Wholesalers and Retailers may only use the Brand Elements at, on, through or to promote Authorized Locations. Authorized Wholesaler’s Retailers’ use of the Brand Elements must comply with any Life Infused Brand’s Style Guide and generally must support, in Life Infused’s sole discretion, the Brand images.
Sales for Resale by Retailers Prohibited
Life Infused has invested considerable resources in having the right number of Wholesalers and Retailers selling from the right number and location of Authorized Locations. As a result, all Products sold by any Wholesaler must be to a Retailer and all such sales to any Retailer are intended for sale by Retailers only to end consumers. Any sale by a Retailer to a customer who the Retailer knew or, in Life Infused’s reasonable opinion, should have known would soon thereafter resell such Products for commercial gain will be considered a violation of this Policy. Any sale by a Wholesaler to any customer who the Wholesaler knew or, in Life Infused’s reasonable opinion, should have known was other than an end consumer or Retailer will be considered a violation of this policy.
Transshipments of Products, that is, shipments of Products outside the Territory, will be considered a violation of this Policy.
Minimum Advertised Prices
Life Infused has determined that one element of the marketing and promotion of its Products that is inconsistent with and harmful to the Brand images is an inappropriately low advertised price to end consumers. To protect its substantial investment in its Brands, Life Infused is unilaterally implementing a minimum advertised price program (“MAP Program”) as part of this Policy. Violations of the MAP Program are subject to the same penalties as any violations of this Policy, as described below.
This MAP Program requires that any Advertising of a price of a Product by a Wholesaler or Retailer be at or above the minimum advertised price set by Life Infused and communicated to Wholesaler and Retailers. Such minimum advertised prices will be set unilaterally by Life Infused and Life Infused may change and communicate new minimum advertised prices to Authorized Retailers in its sole discretion and from time to time. This MAP Program does not apply to the actual resale prices of Products, which are determined unilaterally by each Wholesaler or Retailer. Life Infused reserves the right to sell and advertise Products to end consumers at prices lower than the minimum advertised price periodically and in a manner that Life Infused, in its sole discretion, determines is consistent with Brands.
For this MAP Program, Advertising is defined as any communication of product and pricing information about a Product to a potential customer other than through one-on-one, non-automated communication. The following is a non-exhaustive list of examples of Advertising under this MAP Program:
- Information displayed on or through an Internet website or in any other Internet advertising such as pop-up or banner advertisements
- Print advertising, such as in newspapers, magazines, and print inserts
- Broadcast advertising, such as radio, television, and Internet
- Direct advertising, such as direct mail pieces, catalogs, fliers and newsletters, all whether mailed, hand- delivered, or shipped with products or Products
- Email, fax, and text messaging that is not one-on-one communication to an individual identified potential customer, including blast, broadcast or group emails, faxes, and text messages
- Brand- or Product-specific promotional coupons no matter how
Life Infused has determined that the following actions by any Wholesaler or Retailer will not be considered Advertising subject to this MAP Program:
- Communicating one-on-one with an individual identified potential customer, such as communications during a sales visit, phone call, or individual email
- Displaying the Wholesaler’s or Retailer’s selected sales price on in-store displays in a physical Authorized Location
Wholesalers Responsible for Compliance by their Retailers
Wholesalers are responsible for selecting Retailers to whom they will sell and informing Life Infused of the name and Authorized Locations of each Retailer before selling any Product to Retailer. Each Wholesaler is responsible for informing each of its Retailers of Retailer’s obligations under this Policy. Only retailers who agree to abide by the obligations in this Policy shall be considered Retailers. Any violation of this Policy by Retailer will be considered a violation of the Policy by Wholesaler.
Penalties for Violations of Policy
Life Infused will reasonably and unilaterally decide on the appropriate penalty for any violation of this Policy by any Wholesaler or Retailer. Such penalties may include at any time the immediate stop-shipment of Product and termination of status as a Wholesaler or Retailer. In most cases, Life Infused expects to use the following penalty escalation for those actions by Wholesalers or Retailers that Life Infused, in its sole discretion, determines to be Policy violations:
For the first violation of this Policy for any Product by a Wholesaler, a warning email or letter will be sent by Life Infused to the Wholesaler demanding the violation be cured within 48 hours of notification;
For the first violation of this Policy for any Product by a Retailer, a warning email or letter will be sent by Life Infused to the appropriate Wholesaler who will immediately share the email or letter with Retailer and demand that the violation be cured within 48 hours of notification;
Any failure to cure the violation within the time period will be considered a second violation;
For the second violation by Wholesaler within 12 months of the first violation for any Product, 30-day suspension of shipments of Products;
For the second violation by Retailer within 12 months of the first violation for any Product, Wholesaler will impose a 30-day suspension of shipments of Products;
For any subsequent violation by Wholesaler within 12 months of the first violation for any Product, termination of all shipments and status as Wholesaler; and
For any subsequent violation by Retailer within 12 months of the first violation for any Product, termination of all shipments by Wholesaler to Retailer and termination of status as Retailer.
Any failure of Wholesaler to impose the above penalties on any offending Retailer will be considered a violation of the Policy by Wholesaler.
Questions and Comments about the Policy
Any questions about this Policy should be directed to the Life Infused Brand Policy Manager (“Policy Manager”) at email@example.com. Only the Policy Manager is authorized to communicate any decisions of Life Infused regarding the Policy.
Any complaints about the unauthorized use of any Brand Elements by any non-Authorized Retailer can be sent to the Policy Manager. Any complaints regarding the actions of any Wholesaler or Retailer also can be sent to the Policy Manager. In both cases, the Policy Manager might acknowledge receipt of the information but Life Infused will unilaterally and in its sole discretion determine the appropriate next steps regarding all such information and will not communicate such decisions to the informing Wholesaler or Retailer.