Vendor Commitment Agreement
Terms & Conditions
These terms and conditions govern the Vendor Commitment Agreement (“Agreement”) between Nutraceutical Corporation, a wholly owned subsidiary of Better Being Company LLC, (“Vendor” or “Nutraceutical”) and the buyer identified on the Agreement (“Buyer”).
1. Definitions. Any capitalized words not defined herein shall have the meaning identified in the Agreement.
2. Term. The Agreement shall begin on the Effective Date and run for the Term identified in the Agreement (the “Term”).
3. Termination. Either party may terminate the Agreement without cause by providing ninety (90) day prior written notice to the other party, or for cause upon material breach by the other party. In the case of material breach, the non-breaching party shall notify the breaching party in writing of such breach and breaching party shall have fifteen (15) days to cure to the satisfaction of the non-breaching party. If the breached is not cured, non-breaching party may terminate the Agreement upon notice to the other party. Notices required hereunder must be sent via certified or registered mail through a national carrier or through electronic mail at the address in the Agreement (with confirmed receipt). Notice shall be effective upon being received. Termination or expiration of the Agreement shall not prevent or excuse either party from settling accounts, collecting funds, or engaging in any activity necessary to fulfill obligation prior to the termination or expiration.
4. Territory and Products. Nutraceutical hereby grants to Buyer the right to market, promote and sell Nutraceutical products listed on Exhibit A of the Agreement (collectively, the “Products”) throughout the Territory. The Products may consist of any Nutraceutical owned-brand, including but not limited to the Solaray brand, and any others agreed to in writing by the parties.
5. Services. Buyer agrees to market, promote, and sell the Products in the Territory at the minimum number of stores listed in the Agreement, and to maintain at least the number of SKUs listed in the Agreement, at any given time. Buyer agrees to place the Products in a prominent location on the store shelves and will use best efforts to keep inventory of Products in stock at all times during the Term.
6. Payment for Services. In exchange for Buyer providing the Services, Nutraceutical shall pay the Buyer the Fees in accordance with the Agreement. Nutraceutical shall pay the Fees within thirty (30) days of receipt of invoice.
7. Delivery, Pricing, Payment Terms & Product Requirements.
6.1. Buyer must purchase the Products either directly from Nutraceutical or through an authorized distributor at Nutraceutical’s published prices (the “Price”).
6.2. If Buyer purchases directly from Nutraceutical, following Delivery of the Products, Buyer will use its commercially reasonable efforts to promptly examine all Products and notify Nutraceutical in writing (a “Delivery Deficiency Notice”) of any defective Products or missing Products within fifteen (15) days after Delivery. Upon receipt of a Delivery Deficiency Notice, Nutraceutical shall immediately replace, re-ship, provide a credit or otherwise correct any such Delivery deficiencies. Payment for the Products by Buyer delivered hereunder shall not constitute acceptance thereof.
6.3. If Buyer purchases directly from Nutraceutical, shipping and delivery dates are approximate only. Nutraceutical will not be liable for any loss or expense (consequential, incidental or otherwise) incurred by Buyer (or any of its customers) if Buyer fails to meet such dates for any reason.
6.4. The Parties will work together in close coordination to monitor market demand in order to maintain all minimum inventory requirements with respect to the Products.
6.5. If Buyer purchases directly from Nutraceutical, Nutraceutical shall provide invoices with each Delivery. For each such invoice, Buyer will make all payments in US dollars on terms measured from Buyer’s confirmation that Delivery has been made. The minimum order size for the purchase of the Product shall be $2,000. Payment shall be due within thirty (30) days of receipt of invoice and shall be by credit card, check, ACH or wire, however if Buyer purchases directly from Nutraceutical and pays within fifteen (15) days of receipt of invoice, Buyer shall receive a one percent 1% discount. If Buyer has not paid all undisputed sums due and owing to Nutraceutical in accordance with the terms of the Agreement, Nutraceutical may, in its sole discretion, suspend further Delivery of the Products and may charge a monthly finance charge equal to the lesser of (i) one and one half percent (1.5%) per week of amounts owed and unpaid, compounded weekly; or (ii) the highest amount legally allowed, until all outstanding amounts are paid in full. Buyer shall be entitled to offset against any of Nutraceutical’ invoices undisputed amounts owing by Nutraceutical to Buyer under the Agreement, such as for the Fees.
6.6. Buyer will bear all costs related to the performance of its Services, except for marketing/advertising costs that are pre-approved by Nutraceutical and shall be borne by Nutraceutical.
8. Taxes. Buyer’s purchase price does not include any federal, state, provincial, local or other taxes or fees that may be applicable to the sale or shipment of the Products, all of which will be the sole responsibility of Buyer. Nutraceutical may either require prepayment of such taxes or fees, or add them as a line item on its invoice, and Buyer will reimburse Nutraceutical for the same within 15 days of the date of the invoice. If a taxing authority later determines such taxes are owing, Buyer shall promptly pay or reimburse Nutraceutical for the same.
9. Applicable Laws. Except as otherwise specifically set forth herein or in any written agreement between Buyer and Nutraceutical, Buyer shall be solely responsible for and shall comply with, at its own cost and expense, all applicable local, state, and federal laws and regulations concerning the sale of the Product and shall not sell the Product in any jurisdiction where sale of the Product is not allowed under applicable laws or regulations.
10. Returns and Credits. No Products may be returned for credit or refund without prior authorization of Nutraceutical. A 20% restocking charge will be assessed on shipments refused or returned within 30 days of shipment date, unless the return is for properly rejected Products. If Nutraceutical decides at its sole discretion to accept a return of any Products more than 30 days after the shipment date, a 40% handling and return charge will be assessed on all such returns. No expired Products may be returned under any circumstances. Buyer will be responsible for all shipping charges for any returned Products, except those that are properly rejected within 30 days and returned with prior authorization. In no event will Nutraceutical be liable for replacement of Products (or for shipping charges) which have been damaged or abused by Buyer or its agents, or which have additional labels or price tags applied. No credits may be taken by Buyer without the express written consent of Nutraceutical. Nutraceutical will not authorize credit for any products that have been destroyed or discarded by Buyer.
11. Indemnification. Each party hereby agrees to indemnify, defend and hold harmless the other party from and against all claims, demands, threats, suits and proceeding (collectively, “Claims”) arising from or in connection with any breach of warranty hereunder, or any injuries to persons or property arising from or in connection with any goods or services provided by such party. Each indemnified party shall give prompt, written notice of each such Claim to the other party, and shall cooperate reasonably with the other party, at the other party’s expense, in the defense or settlement of such Claim by the other party.
12. Insurance. Each party agrees to maintain throughout the Term of the Agreement Commercial General Liability Insurance with policy limits of not less than one million dollars ($1,000,000) Each Occurrence for Bodily Injury, Personal Injury and Property Damage Coverage, two million dollars ($2,000,000) Products and Completed Operations Aggregate, and two million dollars ($2,000,000) General Aggregate.
13. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY TOGETHER WITH ITS AFFILIATES, AGENTS, PRINCIPALS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO OR ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE AGREEMENT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED) FIFTY THOUSAND ($50,000.00) DOLLARS (THE “LIABILITY CAP”). EACH OF NUTRACEUTICAL AND BUYER ACKNOWLEDGES AND AGREES THAT EITHER PARTY’S BREACH OF SECTION 15 AS WELL AS ITS INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS SECTION 12 SHALL BE EXCLUDED FROM LIABILITY CAP.
14. Representations and Warranties.
13.1 Each party represents and warrants that: (i) it is a duly organized, validly existing corporation (or other applicable business entity) in good standing under the laws of the country or state of its organization, (ii) it possesses all requisite power and authority to execute and deliver the Agreement and to grant the rights granted by it, and perform the obligations undertaken by it in the Agreement, and (iii) there are no outstanding agreements,
assignments or encumbrances in existence inconsistent with the provisions of the Agreement and the Agreement is enforceable against it.
13.2 Nutraceutical further warrants to Buyer that: (i) if Buyer purchases Products directly from Nutraceutical, it will convey good title to the Products supplied hereunder, free of all liens and encumbrances; (ii) the Products shall be new and free from any defects in materials or workmanship and shall be delivered to Buyer in conformity with any applicable specifications, warranties, statements made on the containers, products, and labels, including, without limitation, manufacturer warranties, advertised specifications, statements made to Buyer, and all specifications agreed upon between the Parties; (iii) the Products supplied hereunder shall be of merchantable quality, fit for their intended use and/or purpose.
13.3 EXCEPT FOR THE WARRANTIES EXPRESSLY MADE IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO, THE PRODUCTS.
15. Confidentiality & Intellectual Property.
14.1. Each party (the “Disclosing Party”) may from time to time during the Term of the Agreement disclose to another Party (the “Receiving Party”) certain non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, personnel, planning and other information (“Confidential Information”). Confidential Information shall include all information marked as such as well as any information which would reasonably be considered confidential. Except as expressly permitted by the Agreement, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. The Receiving Party shall provide copies of such written agreements to the Disclosing Party upon request; provided, however, that such agreement copies shall themselves be deemed the Confidential Information of the Receiving Party.
14.2. Notwithstanding anything herein to the contrary, Confidential Information shall not be deemed to include any information which: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without obligation of confidence as reflected in the written records of the Receiving Party; (ii) was or has been disclosed by the Disclosing Party to a third party without obligation of confidence; (iii) was or becomes lawfully known to the general public without breach of the Agreement; (iv) is independently developed by the Receiving Party without access to, or use of, the Confidential Information; (v) is approved in writing by the Disclosing Party for disclosure by the Receiving Party; (vi) is required to be disclosed in order for the Receiving Party to enforce its rights under the Agreement; or (vii) is required to be disclosed by law or by the order of a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing
Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto.
14.3. The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of the Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so.
16. Security Interest. For Products purchased directly from Nutraceutical, Buyer hereby grants, and Nutraceutical hereby reserves, a security interest in the Products until the purchase price has been paid, foreclosable in accordance with applicable law.
17. Controlling Language. If any language in these terms and conditions is inconsistent with that of the Agreement, the language in the Agreement shall control.
18. Contingencies. Nutraceutical will not be liable for any delay in performance or for nonperformance in whole or in part caused by the occurrence of any contingency beyond the control either of Nutraceutical or Nutraceutical’s suppliers.
19. Independent Contractors. The parties are and shall remain independent contractors. Buyer shall conduct all of its business in its own name and shall pay all expenses of its office and activities and be solely responsible for the acts and expenses of its team members. The Agreement does not constitute a partnership or establish either party as the agent, franchisee or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other, except as specifically provided for in the Agreement. Buyer shall have no right to receive any employee benefits provided by Nutraceutical to its employees. The Agreement does not authorize Buyer to act for Nutraceutical as its agent or to make commitments or warranties on behalf of Nutraceutical.
20. No Assignment. Neither party may assign the Agreement or delegate its rights hereunder in whole or in part without the prior written consent of the other party, and any purported assignment in derogation of the foregoing shall be void. Nutraceutical may assign the Agreement in whole to a third party that acquires, is acquired by, merges with or enters into a similar transaction with a party, including the sale or acquisition of all or substantially all of the party’s assets.
21. Governing Law. The validity, construction and performance of this contract and the transactions to which it relates will be governed by the laws of the State of Utah without regard to conflict of law principles. All actions, claims of legal proceedings in any way pertaining to this contract or such transactions will be commenced and maintained in the courts of Utah or in a federal court of the United States physically situated in Utah.
22. Counterparts; Construction. The Agreement may be executed in counterparts, each of which will be deemed an original; provided, however, such counterparts will together constitute only one instrument.
23. Updates. These terms and conditions may be updated from time to time in the sole discretion of Nutraceutical and any changes will be effective upon notice to Buyer. These terms and conditions are valid as of the following date: April 22, 2022.