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Opti-Nutra Ltd Standard Wholesale & Resale Agreement

Last updated June 2019-06-19

1. Definitions

In this Agreement the following words shall have the following meanings:

“Opti-Nutra®, we, our, us” means Opti-Nutra Ltd. Opti-Nutra® is a registered trademark of Opti-Nutra Ltd

“The Goods” means the products, articles or things which are supplied by Opti-Nutra®

“The Buyer” means the corporate entity, firm or person being the purchaser of the Goods under this agreement

2. Making the Contract

2.1 All orders placed by the Buyer for the Goods are subject to this Agreement.

2.2 This Agreement explicitly excludes any other terms and conditions additional hereto or which the Buyer might seek to impose.

2.3 No variation of this Agreement is permitted - unless expressly accepted by Opti-Nutra® in writing.

2.4 A quotation provided by Opti-Nutra® is open for a period of 30 days only - beginning with the date thereof - provided that we do not previously withdraw it. Any price list issued by us can be withdrawn at any point, without prior notice.

2.5 A contract is not made between the Buyer and Opti-Nutra® until we accept an order by giving written notice of the acceptance or issue an invoice.

3. Cancellation

3.1 No cancellation of an order by the Buyer is permitted - except where expressly agreed by Opti-Nutra® in writing.

3.2 The Buyer will, in the event of agreed cancellation by the Buyer, indemnify Opti-Nutra® fully against all expenses incurred up to the time of such cancellation, together with (by way of liquidated damages) a sum representing our loss of profit.

4. Terms of Payment

4.1 Unless otherwise agreed in writing and stated on the invoice, all sums become due and payable by the Buyer, under this Agreement, upon issue of an agreed invoice by Opti-Nutra®. Time for payment shall be of the essence.

4.2 Unless specifically agreed in writing beforehand payment must be made in full by bank transfer to our nominated bank account, in the currency specified on the invoice.

4.3 If the Buyer fails to fulfil the full terms of payment, Opti-Nutra® shall be entitled to demand payment of all outstanding balances whether due or not and/or cancel all outstanding orders whether due or not and/or decline to make further deliveries.

4.3 The Buyer shall have no right of set off, statutory or otherwise.

5. Delivery

5.1 All items due for delivery shall be delivered to the address at which the Buyer’s account is registered. Any variation to this must be notified, agreed in writing and confirmed on the invoice.

5.2 Time of delivery is not of the essence.

5.3 Opti-Nutra®, its agents and employees shall not be liable for any loss whatsoever or howsoever arising caused by its non-delivery or by the failure to make Goods ready for collection on the due date.

5.4 If Opti-Nutra® is prevented from delivering any Goods at the time provided for delivery by reason of any cause outside our reasonable control (including but not limited to fire, explosion, delay in supplies, interference by labour strikes or lock outs, or non-availability of transport or materials) then the date or period for delivery shall be extended by the duration of the delaying factors.

5.5 Opti-Nutra® reserves the right to make delivery by instalments without the requirement to tender a separate invoice in respect of each instalment.

5.6 If no date for delivery is stated, deliveries shall be made at a reasonable rate.

5.7 Opti-Nutra® shall pay the cost of carriage and packing on all orders under this agreement, except where any order or part thereof is dispatched on the specific instructions of the Buyer in a particular manner, in which case the Buyer will pay the costs of carriage and/or packing as the case may be.

5.8 The method of delivery shall be as stated on the invoice and may not be subsequently changed unless by written agreement.

5.9 If the Buyer shall fail to take delivery of the Goods when delivery is attempted or falls due, the buyer shall be liable for any additional costs for storage and/or redelivery.

5.10 Deviations in the quantity of the Goods delivered representing not more than 10 per cent by value from that stated in the Buyer’s order shall not give the Buyer any right to reject the Goods or to claim damages. The Buyer shall accept and pay at the contract rate for the quantity of the Goods delivered.

6. Returns

6.1 No Goods may be returned by the Buyer except with the prior consent in writing given by Opti-Nutra®. The signature of a delivery note does not constitute consent.

7. Intellectual Property

7.1 The patents, trademarks, formulas, drawings, designs, copyright and intellectual property in the Goods shall at all times belong to Opti-Nutra®.

7.2 The Buyer shall be solely responsible for all local marketing expenses in establishing customers and markets for the Goods.

7.3 Under this agreement the Buyer is granted a limited, non-exclusive, non-transferable, revocable sublicense to use the intellectual property of Opti-Nutra® solely for the purposes of marketing and selling our Goods. This sublicense will immediately cease upon termination of this agreement for any reason.

7.4 Any use by the Buyer of the Opti-Nutra® trademarks shall be in conformance with our then-current trademark usage policies. In any public material the Buyer must display the appropriate trademark designation symbol - ® alongside registered trademarks, and ™ alongside any unregistered trademarks.

7.5 Opti-Nutra® reserves the right to review and approve, at its sole discretion, the Buyer’s use, or intended use, of our IP at any time - without limitation. Upon request by Opti-Nutra® or its licensors, the Buyer shall be required to submit samples of its display or use of our IP. All goodwill arising from the Buyer’s use of our IP shall inure solely to the benefit of Opti-Nutra® or its licensors.

8. Buyer’s responsibilities

8.1 This Agreement may be terminated without notice, at the sole discretion of Opti-Nutra®, for violations of generally held ethical business practices and/or ethical or criminal violations by employees or principals of the Buyer. The Buyer recognizes that unethical, illegal or inappropriate conduct by the Buyer reflects upon Opti-Nutra®, and has the potential to do irreparable harm to our brand value, business development efforts, investments and objectives worldwide.

Unacceptable practices and ethical conduct includes, but is not limited to: violations of trade and export law, violation of FDA or FTC Regulations, prosecutions and convictions for serious offences, proven dishonesty, predatory pricing, immoral or aberrant personal conduct or association with criminals.

8.2 Manner of Sale. Sales in violation of these terms are strictly prohibited, are considered a material breach of this Agreement and may result in immediate termination of the Agreement in addition to other remedies. Goods sold to unauthorized persons or through unauthorized channels, including unauthorized websites, shall not be eligible for certain Opti-Nutra® promotions, services, and/or benefits, including, unless prohibited by law, coverage under any product guarantees.

a. The Buyer shall sell Goods solely to End Users of the Goods. An “End User” is any purchaser of the Goods who is the ultimate consumer of the Goods and who does not intend to resell the Goods to any third-party. The Buyer shall not sell to anyone a quantity of the Goods greater than that generally purchased by an individual for personal use or gifting.

b. The Buyer shall not sell or transfer any of the Goods to any person or entity for re-sale without the prior written consent of Opti-Nutra®. This includes sales to subsidiaries/unique banners owned by the Buyer, B2B accounts, wholesalers, freight forwarders/drop shippers for other retailers, online retailers such as Amazon.com, any person or entity with a direct customer relationship with Opti-Nutra®, or any other person or entity the Buyer knows, or has reason to know, intends to re-sell the Products.

c. The Buyer shall not market for sale, sell, invoice, promote, or ship the Goods to any individual or business outside their agreed Territory without obtaining prior written consent from Opti-Nutra®.

8.3 Opti-Nutra® reserves the right to request information from the Buyer regarding where and to whom the Goods are being sold, and the Buyer shall furnish such information upon request.

8.4 Online Sales The Buyer may not sell the Goods online anonymously. Subject to approval and specific written consent, the Buyer may be permitted to market for sale or sell the Goods through websites owned or operated by the Buyer. Such websites must identify the Buyer’s full legal name, mailing address, telephone number, and email address. The Buyer must notify Opti-Nutra® in writing of any owned and operated websites operating under a different business name than Buyer’s legal name.

a. The Buyer shall not sell the Goods on or through any other website(s), including any third-party marketplace website such as, but not limited to, Amazon, eBay, Jet, Rakuten, or Walmart Marketplace.

b. Unless separately authorized by Opti-Nutra®, the Buyer shall not hold inventory of the Goods at any third-party fulfillment center nor use any third-party fulfillment service, such as Amazon Fulfillment Services, to fulfill any orders for the Goods.

c. Opti-Nutra® reserves the right to limit sales of its Goods, including online. Opti-Nutra® reserves the right to terminate, at any time and at its sole discretion, its approval for the Buyer to market and sell our Goods online. The Buyer must cease all such marketing and sales immediately upon receiving notice of such termination.

d. The Buyer must have an advertised price displayed for each of the Opti-Nutra® Goods marketed for sale online. If the Buyer chooses to offer pricing that is only visible by “adding to cart/seeing price in cart,” such pricing must be in addition to and not in lieu of, a displayed advertised price that is visible on the product page.

8.5 Product Inspection. Promptly upon receipt of Goods, the Buyer shall inspect the Goods for damage, defect, broken seals, evidence of tampering or other non-conformance. If any defect is identified the Buyer must not offer the Goods for sale and must report the defect to Opti-Nutra®. Furthermore, the Buyer shall regularly inspect its inventory for expired or soon-to-be expired Goods and shall remove those Goods from inventory. The Buyer shall not sell expired Goods or Goods that will expire within 60 Days. The Buyer shall destroy or dispose of expired or soon-to-be expired Goods in accordance with instructions provided by Opti-Nutra®.

8.6 Product Storage and Handling. The Buyer shall store all Goods in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any other CGMPs, applicable laws, rules and regulations, and any additional storage or handling guidelines specified by Opti-Nutra®.

8.7 Alterations Prohibited. The Buyer shall sell Goods only in their original packaging, with all seals intact. The Buyer shall not sell or label the Goods as “used,” “open box,” or any similar descriptors. Relabeling, repackaging (including the separation of bundled products or the bundling of products), misbranding, adulterating, diluting, and other alterations is not permitted. Tampering with, defacing, or otherwise altering any lot code, batch code, UPC number, or other identifying information on Goods is prohibited. The Buyer shall not remove or destroy any copyright notices, trademarks, or other proprietary markings on the Goods, documentation, or other materials related to the Goods. Further, the Buyer may not remove, translate, or modify the contents of any label or literature on or accompanying the Goods without written agreement from Opti-Nutra®. The Buyer shall not represent or advertise any Product as “new” that has been returned open or repackaged.

8.8 Customer Service. The Buyer shall be familiar with the special features of all Goods kept in inventory and must obtain sufficient product knowledge to advise end-user customers on how to use the Goods safely and properly. The Buyer must make itself available to respond to customer questions and concerns both before and after sale of the Goods and should endeavor to respond to customer inquiries within 24 hours. At all times, the Buyer, its agents and employees must represent the Goods in a professional manner and refrain from any conduct that is or could be illegal, gives or could give the appearance of impropriety, or otherwise is or could be detrimental to the reputation of the Opti-Nutra® brands.

8.9 Recall and Consumer Safety. To ensure the safety and well-being of the end-users of the Goods, the Buyer shall cooperate with Opti-Nutra® with respect to any product recall or other consumer safety information dissemination effort.

8.10 Contact Information. The Buyer shall maintain accurate and up-to-date company information and shall promptly notify Opti-Nutra® of any change of telephone number, mailing address, email address, or other contact information.

8.11 Compliance with Applicable Laws. The Buyer shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Goods.

8.12 Consumer Confusion. The Buyer shall not advertise, market, display, or demonstrate non-Opti-Nutra® products together with the Goods in a manner that would create the impression that the non- Opti-Nutra® products are made by, endorsed by, or associated with Opti-Nutra®. The Buyer shall not advertise, offer for sale, or sell any products as genuine that in fact are not. Or falsely or inaccurately represent the features or functionality of any Goods.

8.13 Product Representations. The Buyer shall at all times:

a. conduct business in a manner that reflects favorably at all times on the Goods and the good name, goodwill, and reputation of Opti-Nutra®;

b. avoid deceptive, misleading or unethical practices that are or might be detrimental to Opti-Nutra®  or the Goods;

c. make no false or misleading representations with regard to Opti-Nutra® or the Goods;

d. not publish or employ, or cooperate in the publication or employment of any misleading or deceptive advertising material with regard to Opti-Nutra® or the Goods; and

e. make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of the Goods that are inconsistent with the literature distributed by Opti-Nutra®. Approved claims are available on the Opti-Nutra® websites.

8.14 Product Tracking and Product Quality. The Buyer shall comply with any product tracking systems implemented by Opti-Nutra®. The Buyer shall cooperate with Opti-Nutra® in the investigation and resolution of any quality or customer service issues related to the Buyer’s sale of the Goods, including disclosing information regarding sources, shipment and handling.

9. Risk and the passing of property

9.1 Title in the Goods shall not pass to the Buyer until payment is made by the Buyer of the price and all other monies due to Opti-Nutra®.

9.2 Risk in the Goods shall pass to the Buyer whenever the first of the following events occurs:

a. the Goods are delivered to the Buyer’s address or such other address notified by the Buyer in writing; or

b. if the Goods are collected, when the Goods are loaded onto transport provided by the Buyer or its agents.

10. Inspection / Shortages, etc.

10.1 The Buyer is under a duty to inspect the Goods on delivery or on collection, as the case may be.

10.2 Claims for non-delivery must be made within 7 days of the agreed due delivery date.

10.3 Opti-Nutra® shall be under no liability for any defect, damage in transit or shortages that would be apparent on careful inspection if a written claim is not delivered to the Company within 2 days of delivery or collection of the Goods, as the case may be, detailing the alleged defect, damage or shortfall.

10.4 In all cases where defects, damages or shortages are complained of, Opti-Nutra® shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to Opti-Nutra®.

10.5 Subject to Clause 10.2, Clause 10.3 and Clause 10.4, Opti-Nutra® shall make good any shortage in the Goods and (where appropriate) replace any Goods which are defective or damaged in transit as soon as we are reasonably able to do so, but otherwise shall be under no liability whatsoever arising from such shortage, defect or damage.

11. Warranty

11.1 The Buyer should satisfy itself by inspecting and/or testing samples of the Goods or otherwise to establish that all Goods delivered are of merchantable quality and comply with all relevant legal requirements, and the Buyer will be deemed and conclusively presumed to have done so.

11.2 Opti-Nutra® warrants that on delivery the Goods are of merchantable quality and comply with all relevant legal requirements.

12. Liability

12.1 Introduction

a. Nothing in Clause 12 shall be deemed to exclude or restrict Opti-Nutra®’s liability for death or personal injury resulting from negligence.

b. Each of the sub-clauses in Clause 12 is to be treated as separate and independent.

12.2 Warranty and Exclusions Opti-Nutra® agrees that if any Goods are not of merchantable quality or compliant with all relevant legal requirements on delivery, the Opti-Nutra® will, at our own option, replace the Goods at our own expense or refund the purchase price or a fair proportion of it.

a. Claims in respect of any issues covered by Clause 12.2.1 should be made as soon as such issues are reasonably capable of discovery but in any event within 14 days of delivery or collection of the Goods, as the case may be, failing which no such claims will be considered by Opti-Nutra®.

b. In consideration for receiving the benefit of Clause 10.5, Clause 11.2 and Clause 12.2 the Buyer agrees that no other warranties or indemnities, express or implied, statutory or otherwise, shall form part of any contract or shall be implied into any contract with Opti-Nutra®.

12.3 Exclusion of Consequential Loss Opti-Nutra® shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from breach of duty in contract or tort or in any other way (including loss arising from Opti-Nutra®’s negligence).

12.4 Limitation Opti-Nutra®’s total liability for any one claim or for the total of all claims arising from any one act of default of ours (whether arising from our negligence or otherwise) shall not exceed the contract price.

13. Assignment

The Buyer shall not assign or transfer or purport to assign or transfer the Agreement or the benefits thereof to any other person without the prior written consent of Opti-Nutra®.

14. Proper Law and Jurisdiction

The Agreement shall be governed by and construed in accordance with the laws of England.

15. Waiver

The rights and remedies of Opti-Nutra® under this agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by Opti-Nutra®. Nor by any failure of, or delay by Opti-Nutra® in asserting or exercising any such rights or remedies.

16. Headings

The headings of this Agreement are for convenience only and shall have no effect on the interpretation thereof.

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