Terms and Conditions
TRUE GRACE NUTRITION, LLC
AUTHORIZED RETAILER TERMS & CONDITIONS
These terms and conditions (the “Agreement”) govern the relationship between True Grace Nutrition, LLC (“True Grace”) appointed retailers and True Grace as set forth below and are binding on True Grace and any appointed retailer:
1. Appointment as Authorized Retailer. During the Term of this Agreement, True Grace Nutrition, LLC (“True Grace”) appoints the retailer set forth on a valid new account approval set up form that is accepted by True Grace (“Retailer”) as a non-exclusive authorized retailer of certain products as described in purchase orders approved by True Grace (the “Products”). For the avoidance of doubt, True Grace may appoint and be represented by other retailers.
2. Term. The term of this Agreement begins when Retailer issues its first purchase order for Products and continues for a period of 12 months (the “Initial Term”). The term will automatically extend for additional 12-month periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless terminated earlier as provided for in Section 11.
3. Retailer’s Obligations. Retailer shall:
4. True Grace’s Obligations. So long as Retailer is in compliance with its obligations under this Agreement, including being current on all payments, True Grace, will: (a) sell and ship Products to Retailer; (b) make available to Retailer advertising and promotional materials to support the sale of Products
5. Retail Customers Only; Sales Channels. Retailer may sell Products only to end-user consumers. Retailer may not sell in bulk to B2B accounts, wholesalers or freight forwarders/drop shippers for other retailers. Retailer may sell Products only at Retailer’s brick and mortar locations approved by True Grace in writing (each, an “Authorized Location”). Retailer may promote Products on Retailer’s own website and may make e-commerce sales of Products at the websites approved by True Grace in writing (each, an “Authorized Website”). Retailer will not under any circumstances sell True Grace’s Products to or on: Amazon.com, via Amazon Vendor Central, Amazon Vendor Express, Fulfillment by Amazon (FBA), Fulfillment by Merchant (FBM), Seller Fulfilled Prime (SFP), FBA Onsite, or in any other manner which currently exists or may hereafter may be developed on the Amazon sales platform (collectively, “Amazon.com”); Walmart.com, Jet.com, Rakuten.com, Buy.com, eBay or any other third-party marketplace (collectively, “Third Party Marketplaces”); drop ship accounts (Newegg.com, etc.); classified sites (Craigslist.com, etc.) or direct messages on forums is strictly prohibited. Retailer shall sell the Products only as set forth herein. Sales in violation of this Agreement are strictly prohibited and may result in True Grace’s immediate termination of Retailer’s account, in addition to other remedies. Specifically, and without limitation, Products sold to unauthorized persons or through unauthorized channels, including unauthorized websites, shall not be eligible for certain promotions, services, and benefits, including, unless prohibited by law, coverage under True Grace’s Product warranties and guarantees. Furthermore, to the extent allowed by law and without limitation to any other disclaimer, True Grace expressly disclaims any and all warranties and conditions to unauthorized Products; Products which are sold via unauthorized retailers; and Products which are sold not in compliance with True Grace’s quality control program or policies. Sales to or via Third Party Marketplaces in violation of this Agreement will render Retailer as an unauthorized retailer, thereby voiding any and all Product warranties as well as True Grace’s product return policies. Retailer is permitted to market for sale or sell the Products through an Authorized Website; and provided however, that such websites identify Retailer’s full legal name, mailing address, telephone number and email address. True Grace, in its sole discretion, may revoke Retailer’s authorization to sell the Products on such websites at any time, and Retailer shall cease marketing for sale and/or selling the Products on such website immediately upon notice of such revocation. Retailer shall not sell the Products on or through any other website, including any Third Party Marketplace, without the prior written consent of True Grace, which is granted solely by True Grace in its discretion. No True Grace employee or agent can authorize online sales through oral statements, other written agreement, or by any other means.
6. Marketing Activities. Other than advertising and promotional materials, and cooperative marketing funds provided by True Grace, Retailer is solely responsible for all costs and expenses related to advertising, marketing, promoting and selling the Products. Retailer will use its best efforts to honestly and vigorously promote the marketing and sale of the Products to realize the maximum sales potential for the Products. If Retailer wishes to use its own marketing materials for the Products, those materials must be submitted to True Grace for review and, if acceptable, approval. All documentation and verbal descriptions related to Products made by or for Retailer must be accurate and made in a professional manner. Retailer will not modify True Grace’s written warranties relating to the Products.
7. Intellectual Property. True Grace is the owner of various trademarks and trade names which is uses in connection with its Products (“Trademarks and Trade Names”). During the term of this Agreement and subject to the terms and conditions specified herein, True Grace grants to Retailer a non-exclusive, nontransferable, limited, revocable license to use True Grace’s Trademarks and Trade Names only as necessary for Retailer to fulfill its obligations hereunder. Retailer's use of such Trademarks and Trade Names, logos and designations will be in accordance with True Grace’s policies in effect from time to time. Retailer agrees not to attach any additional Trademarks and Trade Names, logos or designations to any True Grace Product. Retailer further agrees not to use any True Grace trademark, trade name, logo or designation in connection with any non-True Grace Product. True Grace reserves the right to review planned uses of its Trademarks and Trade Names, logos and designations to confirm that they are within the guidelines, prior to usage of such Trademarks and Trade Names by Retailer. True Grace shall have the right to exercise quality control over the use of its Trademarks and Trade Names by the Retailer to the degree necessary, in the sole opinion of the True Grace, to maintain the validity and enforceability of such Trademarks and Trade Names and to protect the goodwill associated therewith. Retailer shall, in its use of the Trademarks and Trade Names, adhere to a level of quality at least as high as that used by True Grace in connection with its use of its own Trademarks and Trade Names. If True Grace, in its reasonable opinion, finds that Retailer’s use of the Trademarks and Trade Names (or any of them) threatens the goodwill of the Trademarks and Trade Names (or any of them), Retailer shall, upon notice from True Grace, immediately, and no later than ten (10) days after receipt of such notice, take all measures reasonably necessary to correct the deviations or misrepresentations in, or misuse of, the respective items. Retailer has paid no consideration for the use of True Grace’s Trademarks and Trade Names, logos, designations or copyrights, and nothing contained in this Agreement will give Retailer any right, title or interest in any of them. Retailer acknowledges that True Grace owns and retains all Trademarks and Trade Names, logos, designations, copyrights and other proprietary rights in or associated with True Grace Products, and agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any trademark, trade name, logo, designation or copyright belonging to or licensed to True Grace (including, without limitation any act or assistance to any act, which may infringe or lead to the infringement of any of True Grace's proprietary rights). Retailer shall submit all prospective advertising and marketing materials incorporating the Trademarks and Trade Names, or otherwise relating to the Products, to True Grace for approval prior to any publication, distribution or other use of the same. Unless and until True Grace provides such approval, Retailer shall not publish, distribute or otherwise use such prospective advertising and marketing materials nor permit any third party to publish, distribute or otherwise use the same in any manner. Retailer shall respect the original graphics of the Trademarks and Trade Names and designs and shall not remove, change, modify, or make any additions to the Trademark Trade Name and designs as used in connection with the Products without the prior written approval of True Grace. True Grace shall have the right at any time, and from time to time, to obtain photographs or samples from Retailer of all materials used by Retailer which display the Trademarks and Trade Names, and True Grace may, in its sole and absolute discretion, require Retailer to discontinue the use of any materials which, in the sole judgment of True Grace, may be detrimental to the goodwill embodied in such Trademarks and Trade Names. If True Grace requires Retailer to discontinue the use of any such materials under the provisions of this paragraph, such discontinuation shall apply prospectively only, such that Retailer shall have no obligation to retrieve or otherwise eliminate any complained-of materials already appearing in publications or otherwise in advertisements by third parties not under the control of Retailer. Retailer shall use the Trademarks and Trade Names in accordance with sound trademark and trade name usage principles and in compliance with all applicable laws and regulations of the United States (including without limitation all laws and regulations relating to the maintenance of the validity and enforceability of such Trademarks and Trade Names) and shall not use the Trademarks and Trade Names in any manner that might tarnish, disparage, or reflect adversely on the Trademarks and Trade Names or True Grace. Retailer shall use, in connection with True Grace’s Trademarks and Trade Names, all legends, notices and markings required by law. Retailer may not alter the appearance of the Trademarks and Trade Names in any advertising, marketing, distribution, or sales materials, or any other publicly distributed materials without the prior written consent of True Grace. Retailer agrees to use reasonable efforts to protect True Grace’s proprietary rights and to cooperate at Retailer's expense in True Grace’s efforts to protect its proprietary rights. Retailer agrees to promptly notify True Grace of any known or suspected breach of True Grace’s proprietary rights that comes to Retailer's attention. Retailer shall not enter into any contracts, or engage in any practice which is detrimental to the interests of True Grace in its Products or Trademarks and Trade Names, and the goodwill associated therewith. Retailer shall not use True Grace’s Trademarks and Trade Names, advertising, marketing, distribution, or sales materials, or any other materials for the purpose of creating new listings or altering existing listings on the Amazon.com or other Third Party Marketplaces. True Grace retains the express right as the only party permitted to maintain and update all content of True Grace listings found on the Amazon.com and Third Party Marketplaces, including listing creation. Any unauthorized use of True Grace’s Trademarks and Trade Names shall constitute a material breach of this Agreement, thereby entitling True Grace to the remedies provided for herein. Retailer must represent itself as an authorized Retailer of the Products in all advertising and sales materials and must advertise the Products only under True Grace’s Trademarks and Trade Names. Upon termination of this Agreement, Retailer must immediately cease use of the Trademarks and Trade Names. True Grace owns all proprietary rights in and to the Trademarks and Trade Names, copyrights, and other intellectual property related to the Products (the “IP”). Retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Retailer’s status as an Authorized Retailer. True Grace reserves the right to review and approve, in its sole discretion, Retailer’s use or intended use of the IP at any time, without limitation. All goodwill arising from Retailer’s use of the IP shall inure solely to the benefit of True Grace.
8. Order Placement. Retailer may submit orders for Products to True Grace (a) by telephone to True Grace’s customer service team, or (b) by e-mail to True Grace at orders@truegracehealth.com. Each order is subject to acceptance by True Grace. Orders for Products made by Retailer shall be handled pursuant to the then-current product order, shipment, and return procedures, which may be amended by True Grace at any time in its sole and absolute discretion. True Grace reserves the right to reject any orders, in whole or in part, for any reason. Any additional or different terms proposed by Retailer (including, without limitation, any terms contained in any document incorporated by reference into a purchase order) are rejected and will be deemed a material alteration hereof, unless expressly agreed to in writing by True Grace. Furthermore, True Grace will not be bound by any "disclaimers", “click wrap” or "click to approve" terms or conditions now or hereafter contained in any website used by Retailer in connection with the Products or any sale thereof.
9. MAP Policy. True Grace has adopted a minimum advertised price policy (“MAP Policy”) designed to protect the valuable goodwill associated with the Products and the economic opportunities available to authorized retailers of Products. Retailer must understand and abide by its obligations under True Grace’s MAP Policy as amended from time to time and the MAP Policy is incorporated herein by reference. The MAP Policy can be found at https://truegracehealth.com/pages/map-policy-agreement.
10. Resale Certificates. Retailer must provide True Grace with a completed Resale Certificate for the state(s) in which Retailer conducts business. If True Grace does not receive an up-to-date Resale Certificate, True Grace will charge Retailer sales tax on orders.
11. Termination. This Agreement can be terminated as follows:
12. Effect of Termination. Upon termination, True Grace may reject all or any part of any order received from Retailer after notice of termination or may require Retailer to pay in advance for any further shipments of Products. Upon termination of this Agreement, Retailer must immediately pay True Grace all amounts owed to True Grace. Late payment fees will apply from the date of termination. Upon termination, True Grace has the right, but not the obligation, to repurchase from Retailer any or all Products in Retailer’s inventory at the cost paid by Retailer, less True Grace’s applicable restocking fee, and plus any credits in True Grace’s favor. True Grace may exercise this right by giving written notice to Retailer within 10 days of the date of the termination. If the repurchase right is exercised by True Grace, Retailer will deliver the repurchased Product to True Grace, C.O.D. within 10 days of Retailer’s receipt of the notice. Retailer has the right to dispose of any Products not repurchased by True Grace in the regular course of Retailer’s business.
Neither party is entitled to compensation or reimbursement for its inability to recoup any investment made in connection with this Agreement, loss of prospective profits or anticipated sales or other losses which are alleged to result from termination of this Agreement.
13. Return of Materials. All designs, drawings, photographs, samples, literature, and sales aids of every kind relating to the Products will remain the property of True Grace. Within 10 days after the termination of this Agreement, Retailer must ship such items to True Grace as directed by True Grace, at True Grace’s expense.
14. Security Interest. Retailer authorizes True Grace to execute and file on account of Retailer any UCC financing and continuation statements deemed necessary by True Grace to perfect its and/or its assignee’s security interest in any purchases made to Retailer’s account. The collateral to be listed on the UCC filing will be the Products. Retailer will pay any filing or recording fees or taxes in connection therewith.
15. Certain Changes. Retailer must provide written notice to True Grace at least 30 days in advance of any: (a) any change in the legal name or “doing business as” name of Retailer, (b) any change in the business structure or form under which credit has been established, (c) change in Authorized Websites, and (d) change in Authorized Locations.
16. No Right of Return; Customer Returns. All sales of Products to Retailer under this Agreement are made on a one-way basis and Retailer has no right to return Products purchased under this Agreement unless Retailer receives prior written approval from True Grace. Products that have received approval for return may be subject to 15% restock fee. In the event that a consumer is not completely satisfied with their purchase from Retailer and decides to return their purchase, Retailer will be reimbursed for their original purchase price. Proof of purchase and details for the return are required by True Grace for Retailer to receive reimbursement.
17. Warranties. THE PRODUCTS ARE PROVIDED “AS-IS” AND NEITHER TRUE GRACE NOR ANY PERSON ON BEHALF OF TRUE GRACE HAS MADE OR MAKES ANY EXPRESS, IMPLIED, OR STATUTORY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE, OR (C) NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND RETAILER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY TRUE GRACE, OR ANY OTHER PERSON ON TRUE GRACE’S BEHALF.
18. Indemnification. Retailer shall indemnify and hold True Grace harmless from any liabilities, damages, losses and expenses (including, without limitation, reasonable attorneys' fees) incurred by True Grace, whether or not involving a third party claim: (a) to the extent the claim is for bodily harm or death and such claim is directly attributable to Retailer’s negligence; (b) to the extent the claim is directly attributable to a breach by Retailer of its representations and warranties in this Agreement; or (c) to the extent the claim is directly attributable to a breach by Retailer of its obligations in this Agreement.
19. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRUE GRACE'S AGGREGATE LIABILITY TO RETAILER AND RETAILER’S REPRESENTATIVES FOR LIABILITIES, DAMAGES, LOSSES AND EXPENSES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY RETAILER TO TRUE GRACE UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITIES, DAMAGES, LOSSES OR EXPENSES.
20. Waiver of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, , TRUE GRACE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RETAILER OR ANY OF RETAILER'S REPRESENTATIVES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, DATA OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Availability of Injunctive Relief. Notwithstanding anything to the contrary herein, if there is a breach or threatened breach this Agreement, it is agreed and understood that True Grace will have no adequate remedy in money or other damages at law. Accordingly, True Grace shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by True Grace to exercise any right(s) herein shall constitute a waiver of any provision herein.
22. Assignment. Retailer may not transfer or assign its interest in this Agreement without True Grace’s prior written consent. Retailer must provide True Grace with at least 30 days prior written notice of any change in ownership of Retailer or any sale of all or substantially all of Retailer’s assets. True Grace’s rights and obligations under this Agreement may be assigned by True Grace.
23. Confidential Information.
AUTHORIZED RETAILER TERMS & CONDITIONS
These terms and conditions (the “Agreement”) govern the relationship between True Grace Nutrition, LLC (“True Grace”) appointed retailers and True Grace as set forth below and are binding on True Grace and any appointed retailer:
1. Appointment as Authorized Retailer. During the Term of this Agreement, True Grace Nutrition, LLC (“True Grace”) appoints the retailer set forth on a valid new account approval set up form that is accepted by True Grace (“Retailer”) as a non-exclusive authorized retailer of certain products as described in purchase orders approved by True Grace (the “Products”). For the avoidance of doubt, True Grace may appoint and be represented by other retailers.
2. Term. The term of this Agreement begins when Retailer issues its first purchase order for Products and continues for a period of 12 months (the “Initial Term”). The term will automatically extend for additional 12-month periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless terminated earlier as provided for in Section 11.
3. Retailer’s Obligations. Retailer shall:
(a) comply with the terms of this Agreement;
(b) use its good faith best efforts to promote market, sell and create a market for the Products;
(c) at all times and at each Authorized Location and Authorized Website, maintain an attractive display of Products;
(d) adequately and properly train its sales personnel with respect to the Products and provide a level of sales support and customer support that, at a minimum, demonstrates industry best practices;
(e) comply with Product sales goals established from time to time by True Grace;
(f) maintain liability insurance to cover Retailer’s activities in amounts reasonably satisfactory to True Grace;
(g) not modify, alter, replace, reverse engineer, or otherwise change the Products it sells to customers;
(h) comply with all applicable laws, rules, regulations and policies, including those related to advertising, sale and marketing of Products;
(i) inspect the Products upon receipt and during storage for damage, defects, broken seals, evidence of tampering or other nonconformance (collectively, “Defects”). Retailer shall also inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from its inventory. Retailer shall not sell any Products that are expired. If any Defects are identified, Retailer must not offer the Product for sale and must promptly report the Defects to True Grace;
(j) exercise due care in storing and handling the Products, store the Products in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional storage guidelines specified by True Grace from time to time.
(k) cooperate with True Grace with respect to any Product recall or other consumer safety information dissemination effort to ensure the safety and well-being of the end-users of the Products;
(l) sell Products in their original packaging, with all seals intact. Retailer shall not sell or label the Products as “used”, “open box” or any other similar descriptors. Relabeling, repackaging (including the separation of bundled products or the bundling of products), misbranding, adulterating, and other alterations are not permitted. Retailer shall not tamper with, deface, or otherwise alter any batch code or other identifying information on Products or packaging. Retailer shall not remove or destroy any copyright notices, trademarks or other proprietary markings on the Products, documentation, or other materials related to the Products. Removing, translating, or modifying the contents of any label or literature accompanying the Products is prohibited. Retailer shall not advertise, market, display, or demonstrate non-True Grace products together with the Products in a manner that would create the impression that the non-True Grace products are made by, endorsed by, or associated with True Grace;
(m) familiarize themselves, including Retailer’s sales representatives, with the features of all Products marketed for sale and must obtain sufficient Product knowledge to advise end-user customers on the selection and safe use of the Products, as well as any applicable warranty or return policy. Retailer must make itself available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly. Retailer and Retailer’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of True Grace. Retailer agrees to cooperate fully with True Grace in any investigation or evaluation of such matters; and
(n) not sell, ship or invoice Products to customers outside of the United States or to anyone Retailer knows or has reason to know intends to ship the Products outside of the United States without the prior written consent of True Grace.
4. True Grace’s Obligations. So long as Retailer is in compliance with its obligations under this Agreement, including being current on all payments, True Grace, will: (a) sell and ship Products to Retailer; (b) make available to Retailer advertising and promotional materials to support the sale of Products
5. Retail Customers Only; Sales Channels. Retailer may sell Products only to end-user consumers. Retailer may not sell in bulk to B2B accounts, wholesalers or freight forwarders/drop shippers for other retailers. Retailer may sell Products only at Retailer’s brick and mortar locations approved by True Grace in writing (each, an “Authorized Location”). Retailer may promote Products on Retailer’s own website and may make e-commerce sales of Products at the websites approved by True Grace in writing (each, an “Authorized Website”). Retailer will not under any circumstances sell True Grace’s Products to or on: Amazon.com, via Amazon Vendor Central, Amazon Vendor Express, Fulfillment by Amazon (FBA), Fulfillment by Merchant (FBM), Seller Fulfilled Prime (SFP), FBA Onsite, or in any other manner which currently exists or may hereafter may be developed on the Amazon sales platform (collectively, “Amazon.com”); Walmart.com, Jet.com, Rakuten.com, Buy.com, eBay or any other third-party marketplace (collectively, “Third Party Marketplaces”); drop ship accounts (Newegg.com, etc.); classified sites (Craigslist.com, etc.) or direct messages on forums is strictly prohibited. Retailer shall sell the Products only as set forth herein. Sales in violation of this Agreement are strictly prohibited and may result in True Grace’s immediate termination of Retailer’s account, in addition to other remedies. Specifically, and without limitation, Products sold to unauthorized persons or through unauthorized channels, including unauthorized websites, shall not be eligible for certain promotions, services, and benefits, including, unless prohibited by law, coverage under True Grace’s Product warranties and guarantees. Furthermore, to the extent allowed by law and without limitation to any other disclaimer, True Grace expressly disclaims any and all warranties and conditions to unauthorized Products; Products which are sold via unauthorized retailers; and Products which are sold not in compliance with True Grace’s quality control program or policies. Sales to or via Third Party Marketplaces in violation of this Agreement will render Retailer as an unauthorized retailer, thereby voiding any and all Product warranties as well as True Grace’s product return policies. Retailer is permitted to market for sale or sell the Products through an Authorized Website; and provided however, that such websites identify Retailer’s full legal name, mailing address, telephone number and email address. True Grace, in its sole discretion, may revoke Retailer’s authorization to sell the Products on such websites at any time, and Retailer shall cease marketing for sale and/or selling the Products on such website immediately upon notice of such revocation. Retailer shall not sell the Products on or through any other website, including any Third Party Marketplace, without the prior written consent of True Grace, which is granted solely by True Grace in its discretion. No True Grace employee or agent can authorize online sales through oral statements, other written agreement, or by any other means.
6. Marketing Activities. Other than advertising and promotional materials, and cooperative marketing funds provided by True Grace, Retailer is solely responsible for all costs and expenses related to advertising, marketing, promoting and selling the Products. Retailer will use its best efforts to honestly and vigorously promote the marketing and sale of the Products to realize the maximum sales potential for the Products. If Retailer wishes to use its own marketing materials for the Products, those materials must be submitted to True Grace for review and, if acceptable, approval. All documentation and verbal descriptions related to Products made by or for Retailer must be accurate and made in a professional manner. Retailer will not modify True Grace’s written warranties relating to the Products.
7. Intellectual Property. True Grace is the owner of various trademarks and trade names which is uses in connection with its Products (“Trademarks and Trade Names”). During the term of this Agreement and subject to the terms and conditions specified herein, True Grace grants to Retailer a non-exclusive, nontransferable, limited, revocable license to use True Grace’s Trademarks and Trade Names only as necessary for Retailer to fulfill its obligations hereunder. Retailer's use of such Trademarks and Trade Names, logos and designations will be in accordance with True Grace’s policies in effect from time to time. Retailer agrees not to attach any additional Trademarks and Trade Names, logos or designations to any True Grace Product. Retailer further agrees not to use any True Grace trademark, trade name, logo or designation in connection with any non-True Grace Product. True Grace reserves the right to review planned uses of its Trademarks and Trade Names, logos and designations to confirm that they are within the guidelines, prior to usage of such Trademarks and Trade Names by Retailer. True Grace shall have the right to exercise quality control over the use of its Trademarks and Trade Names by the Retailer to the degree necessary, in the sole opinion of the True Grace, to maintain the validity and enforceability of such Trademarks and Trade Names and to protect the goodwill associated therewith. Retailer shall, in its use of the Trademarks and Trade Names, adhere to a level of quality at least as high as that used by True Grace in connection with its use of its own Trademarks and Trade Names. If True Grace, in its reasonable opinion, finds that Retailer’s use of the Trademarks and Trade Names (or any of them) threatens the goodwill of the Trademarks and Trade Names (or any of them), Retailer shall, upon notice from True Grace, immediately, and no later than ten (10) days after receipt of such notice, take all measures reasonably necessary to correct the deviations or misrepresentations in, or misuse of, the respective items. Retailer has paid no consideration for the use of True Grace’s Trademarks and Trade Names, logos, designations or copyrights, and nothing contained in this Agreement will give Retailer any right, title or interest in any of them. Retailer acknowledges that True Grace owns and retains all Trademarks and Trade Names, logos, designations, copyrights and other proprietary rights in or associated with True Grace Products, and agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any trademark, trade name, logo, designation or copyright belonging to or licensed to True Grace (including, without limitation any act or assistance to any act, which may infringe or lead to the infringement of any of True Grace's proprietary rights). Retailer shall submit all prospective advertising and marketing materials incorporating the Trademarks and Trade Names, or otherwise relating to the Products, to True Grace for approval prior to any publication, distribution or other use of the same. Unless and until True Grace provides such approval, Retailer shall not publish, distribute or otherwise use such prospective advertising and marketing materials nor permit any third party to publish, distribute or otherwise use the same in any manner. Retailer shall respect the original graphics of the Trademarks and Trade Names and designs and shall not remove, change, modify, or make any additions to the Trademark Trade Name and designs as used in connection with the Products without the prior written approval of True Grace. True Grace shall have the right at any time, and from time to time, to obtain photographs or samples from Retailer of all materials used by Retailer which display the Trademarks and Trade Names, and True Grace may, in its sole and absolute discretion, require Retailer to discontinue the use of any materials which, in the sole judgment of True Grace, may be detrimental to the goodwill embodied in such Trademarks and Trade Names. If True Grace requires Retailer to discontinue the use of any such materials under the provisions of this paragraph, such discontinuation shall apply prospectively only, such that Retailer shall have no obligation to retrieve or otherwise eliminate any complained-of materials already appearing in publications or otherwise in advertisements by third parties not under the control of Retailer. Retailer shall use the Trademarks and Trade Names in accordance with sound trademark and trade name usage principles and in compliance with all applicable laws and regulations of the United States (including without limitation all laws and regulations relating to the maintenance of the validity and enforceability of such Trademarks and Trade Names) and shall not use the Trademarks and Trade Names in any manner that might tarnish, disparage, or reflect adversely on the Trademarks and Trade Names or True Grace. Retailer shall use, in connection with True Grace’s Trademarks and Trade Names, all legends, notices and markings required by law. Retailer may not alter the appearance of the Trademarks and Trade Names in any advertising, marketing, distribution, or sales materials, or any other publicly distributed materials without the prior written consent of True Grace. Retailer agrees to use reasonable efforts to protect True Grace’s proprietary rights and to cooperate at Retailer's expense in True Grace’s efforts to protect its proprietary rights. Retailer agrees to promptly notify True Grace of any known or suspected breach of True Grace’s proprietary rights that comes to Retailer's attention. Retailer shall not enter into any contracts, or engage in any practice which is detrimental to the interests of True Grace in its Products or Trademarks and Trade Names, and the goodwill associated therewith. Retailer shall not use True Grace’s Trademarks and Trade Names, advertising, marketing, distribution, or sales materials, or any other materials for the purpose of creating new listings or altering existing listings on the Amazon.com or other Third Party Marketplaces. True Grace retains the express right as the only party permitted to maintain and update all content of True Grace listings found on the Amazon.com and Third Party Marketplaces, including listing creation. Any unauthorized use of True Grace’s Trademarks and Trade Names shall constitute a material breach of this Agreement, thereby entitling True Grace to the remedies provided for herein. Retailer must represent itself as an authorized Retailer of the Products in all advertising and sales materials and must advertise the Products only under True Grace’s Trademarks and Trade Names. Upon termination of this Agreement, Retailer must immediately cease use of the Trademarks and Trade Names. True Grace owns all proprietary rights in and to the Trademarks and Trade Names, copyrights, and other intellectual property related to the Products (the “IP”). Retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Retailer’s status as an Authorized Retailer. True Grace reserves the right to review and approve, in its sole discretion, Retailer’s use or intended use of the IP at any time, without limitation. All goodwill arising from Retailer’s use of the IP shall inure solely to the benefit of True Grace.
8. Order Placement. Retailer may submit orders for Products to True Grace (a) by telephone to True Grace’s customer service team, or (b) by e-mail to True Grace at orders@truegracehealth.com. Each order is subject to acceptance by True Grace. Orders for Products made by Retailer shall be handled pursuant to the then-current product order, shipment, and return procedures, which may be amended by True Grace at any time in its sole and absolute discretion. True Grace reserves the right to reject any orders, in whole or in part, for any reason. Any additional or different terms proposed by Retailer (including, without limitation, any terms contained in any document incorporated by reference into a purchase order) are rejected and will be deemed a material alteration hereof, unless expressly agreed to in writing by True Grace. Furthermore, True Grace will not be bound by any "disclaimers", “click wrap” or "click to approve" terms or conditions now or hereafter contained in any website used by Retailer in connection with the Products or any sale thereof.
9. MAP Policy. True Grace has adopted a minimum advertised price policy (“MAP Policy”) designed to protect the valuable goodwill associated with the Products and the economic opportunities available to authorized retailers of Products. Retailer must understand and abide by its obligations under True Grace’s MAP Policy as amended from time to time and the MAP Policy is incorporated herein by reference. The MAP Policy can be found at https://truegracehealth.com/pages/map-policy-agreement.
10. Resale Certificates. Retailer must provide True Grace with a completed Resale Certificate for the state(s) in which Retailer conducts business. If True Grace does not receive an up-to-date Resale Certificate, True Grace will charge Retailer sales tax on orders.
11. Termination. This Agreement can be terminated as follows:
(a) By either party, for any reason or for no reason, upon not less than 30 days written notice to the other party.
(b) True Grace may immediately terminate this Agreement upon written notice if (i) Retailer fails to pay True Grace any amount when due, (ii) if Retailer becomes insolvent or any proceeding is commenced by or against Retailer under any law providing relief to Retailer as a debtor, or (iii) Retailer breaches any provision of this Agreement.
(c) Upon termination, Retailer will immediately lose its status as an Authorized Retailer and shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Retailer is an authorized Retailer or has any affiliation with True Grace; and (iii) using any IP.
12. Effect of Termination. Upon termination, True Grace may reject all or any part of any order received from Retailer after notice of termination or may require Retailer to pay in advance for any further shipments of Products. Upon termination of this Agreement, Retailer must immediately pay True Grace all amounts owed to True Grace. Late payment fees will apply from the date of termination. Upon termination, True Grace has the right, but not the obligation, to repurchase from Retailer any or all Products in Retailer’s inventory at the cost paid by Retailer, less True Grace’s applicable restocking fee, and plus any credits in True Grace’s favor. True Grace may exercise this right by giving written notice to Retailer within 10 days of the date of the termination. If the repurchase right is exercised by True Grace, Retailer will deliver the repurchased Product to True Grace, C.O.D. within 10 days of Retailer’s receipt of the notice. Retailer has the right to dispose of any Products not repurchased by True Grace in the regular course of Retailer’s business.
Neither party is entitled to compensation or reimbursement for its inability to recoup any investment made in connection with this Agreement, loss of prospective profits or anticipated sales or other losses which are alleged to result from termination of this Agreement.
13. Return of Materials. All designs, drawings, photographs, samples, literature, and sales aids of every kind relating to the Products will remain the property of True Grace. Within 10 days after the termination of this Agreement, Retailer must ship such items to True Grace as directed by True Grace, at True Grace’s expense.
14. Security Interest. Retailer authorizes True Grace to execute and file on account of Retailer any UCC financing and continuation statements deemed necessary by True Grace to perfect its and/or its assignee’s security interest in any purchases made to Retailer’s account. The collateral to be listed on the UCC filing will be the Products. Retailer will pay any filing or recording fees or taxes in connection therewith.
15. Certain Changes. Retailer must provide written notice to True Grace at least 30 days in advance of any: (a) any change in the legal name or “doing business as” name of Retailer, (b) any change in the business structure or form under which credit has been established, (c) change in Authorized Websites, and (d) change in Authorized Locations.
16. No Right of Return; Customer Returns. All sales of Products to Retailer under this Agreement are made on a one-way basis and Retailer has no right to return Products purchased under this Agreement unless Retailer receives prior written approval from True Grace. Products that have received approval for return may be subject to 15% restock fee. In the event that a consumer is not completely satisfied with their purchase from Retailer and decides to return their purchase, Retailer will be reimbursed for their original purchase price. Proof of purchase and details for the return are required by True Grace for Retailer to receive reimbursement.
17. Warranties. THE PRODUCTS ARE PROVIDED “AS-IS” AND NEITHER TRUE GRACE NOR ANY PERSON ON BEHALF OF TRUE GRACE HAS MADE OR MAKES ANY EXPRESS, IMPLIED, OR STATUTORY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE, OR (C) NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND RETAILER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY TRUE GRACE, OR ANY OTHER PERSON ON TRUE GRACE’S BEHALF.
18. Indemnification. Retailer shall indemnify and hold True Grace harmless from any liabilities, damages, losses and expenses (including, without limitation, reasonable attorneys' fees) incurred by True Grace, whether or not involving a third party claim: (a) to the extent the claim is for bodily harm or death and such claim is directly attributable to Retailer’s negligence; (b) to the extent the claim is directly attributable to a breach by Retailer of its representations and warranties in this Agreement; or (c) to the extent the claim is directly attributable to a breach by Retailer of its obligations in this Agreement.
19. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRUE GRACE'S AGGREGATE LIABILITY TO RETAILER AND RETAILER’S REPRESENTATIVES FOR LIABILITIES, DAMAGES, LOSSES AND EXPENSES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY RETAILER TO TRUE GRACE UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITIES, DAMAGES, LOSSES OR EXPENSES.
20. Waiver of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, , TRUE GRACE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RETAILER OR ANY OF RETAILER'S REPRESENTATIVES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, DATA OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Availability of Injunctive Relief. Notwithstanding anything to the contrary herein, if there is a breach or threatened breach this Agreement, it is agreed and understood that True Grace will have no adequate remedy in money or other damages at law. Accordingly, True Grace shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by True Grace to exercise any right(s) herein shall constitute a waiver of any provision herein.
22. Assignment. Retailer may not transfer or assign its interest in this Agreement without True Grace’s prior written consent. Retailer must provide True Grace with at least 30 days prior written notice of any change in ownership of Retailer or any sale of all or substantially all of Retailer’s assets. True Grace’s rights and obligations under this Agreement may be assigned by True Grace.
23. Confidential Information.
(a) Confidentiality Obligations. Any party receiving Confidential Information (“Recipient”) from the other party (“Discloser”) shall exercise the same degree of care and protection with respect to the Discloser's Confidential Information that the Recipient exercises with respect to its own Confidential Information, but in no event less than a reasonable standard of care. Throughout the Term and for a period of five years from the termination or expiration of this Agreement, the Recipient shall not (unless required by law or order) disclose, distribute or allow any third party to have access to any Confidential Information of the Discloser, provided however, that the Recipient may disclose Confidential Information to its employees, affiliates, advisors, attorneys, lenders, accountants, and independent contractors if they have a need to know the Confidential Information in order for the Recipient to perform its obligations under the Agreement. Each party hereby reserves all right, title and interest in its Confidential Information.
(b) Return or Destruction of Confidential Information. Upon the request of the Discloser, the Recipient shall promptly return or destroy Discloser’s Confidential Information, provided that the Recipient is permitted to retain a copy of the Discloser's Confidential Information for legal, compliance or other record retention purposes, provided further that the Recipient must comply with the confidentiality obligations of this Agreement in retaining such copies.
(c) Trade Secret Protection. Notwithstanding anything to the contrary in the foregoing restrictions, any trade secrets of a party will also be entitled to all of the protections and benefits under Wis. Stat. §134.90, as amended, and any other applicable law, including without limitation, confidentiality restrictions beyond five years. If any information that a party deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for purposes of this Agreement, such information will in any event still be considered Confidential Information for purposes of this Agreement.
(d) Definition of Confidential Information. “Confidential Information” means any and all information provided to either party or to which either party otherwise gains access during the course of its performance under this Agreement, regardless of whether such information is labeled or otherwise identified as being confidential. Without limiting the generality of the foregoing, Confidential Information shall include the Discloser's product plans, designs, schematics, development know-how, trade secrets, techniques, processes, procedures, algorithms, formulae, costs, prices, finances, marketing plans, business opportunities, research, contracts and customer information. Confidential Information shall not include information which (a) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the Recipient or its Representatives; (b) was known to the Recipient at the time of disclosure without an obligation of confidentiality; (c) was disclosed after written approval of the Discloser; or (d) becomes known to the Recipient from a source other than the Discloser without an obligation of confidentiality.
(a) Relationship of the Parties. Retailer is an independent contractor, not an agent or employee of True Grace. Retailer is not authorized to assume or create any obligation of any nature on behalf or in the name of True Grace.
(b) Effect of Waiver. The waiver by either party of a breach of any provisions of this Agreement shall not operate as or be construed as a waiver of any subject breach thereof.
(c) Notices. Notices required or permitted under this Agreement must be in writing and are deemed to have been given (i) when personally delivered, (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), or (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Any such notice must be sent to parties at the addresses listed in the new account approval set up form, which address may be changed by giving notice as provided in this Section.
(d) Binding Effect. This Agreement is binding upon the parties and inures to the benefit of the respective permitted successors and permitted assigns.
(e) Counterparts. This Agreement may be executed by signatures exchanged by facsimile, e-mail or other electronic transmission, in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(f) Governing Law and Venue. The laws of the State of Wisconsin govern this Agreement. The venue and jurisdiction for any and all disputes between the parties, including disputes arising under this Agreement, shall be exclusively in a state or federal court of competent jurisdiction in Milwaukee County, Wisconsin and Wisconsin law shall govern all such disputes.
(g) Severability. If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement shall remain in full force.
(h) Modifications. True Grace reserves the right to update, amend, or modify this Agreement upon written or electronic notice to Retailer. Unless otherwise provided, such amendments will take effect immediately and Retailer’s continued use, advertising, offering for sale, or sale of the Products, use of the IP, or use of any other information or materials provided by True Grace to Retailer under the Agreement following notice will be deemed Retailer’s acceptance of the amendments. No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing. .
(i) Entire Agreement; Amendment. This Agreement and the MAP Policy represent the entire agreement between the parties and supersedes all prior discussions and agreements on the subject matter.
(j) JURY WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.