This Agreement (the “Agreement”) and any addendums contain the complete terms and conditions that apply to you (“Retailer”) participating in Vital Plan, Inc.’s (“Vital Plan”) Wholesale Program. Each may also be referred to herein as “Party” or collectively the “Parties”). “Products” refers to the Products in Vital Plan’s then-current Product listing, which may be updated at Vital Plan’s sole discretion. “End-User” refers to the consumer of the products after resale.
By joining the Wholesale Program to become a Retailer of Vital Plan Products, Retailer is agreeing to the terms specified in this Agreement. Any violation of any terms and conditions included in this Agreement may result in termination of Retailer’s ability to promote or resell the Products and may result in payment of damages or penalties.
1. Proprietary Information
Retailer acknowledges and agrees that Vital Plan retains ownership rights and control over all confidential and proprietary information and materials provided to and used by Retailer in regards to the Products or for any other purposes. This shall include the Products, all inventions, of derivative proprietary products or systems, trade secrets and all other unique business, technical, product, marketing and financial information Vital Plan or Retailer may develop, learn, or obtain that relate to Vital Plan, or that are received by Retailer in confidence during the term of the Agreement which shall all constitute “Proprietary Information”. Retailer shall not knowingly disclose or reveal to any unauthorized person or outside third-party any Proprietary Information without the prior written consent of Vital Plan.
2. Agreement Modification & Termination
This Agreement will begin upon acceptance of the terms herein and end when terminated by Vital Plan or Retailer in writing, who may terminate this Agreement without cause, at any time and for any reason.
Vital Plan may modify any terms and conditions contained in this Agreement, at any time and in Vital Plan’s sole discretion, but providing notice of such change to Retailer in advance. In the event any modification is not acceptable to Retailer, Retailer may then terminate this Agreement.
Upon the termination of this Agreement for any reason Retailer shall immediately cease use of, remove from public view and return to Vital Plan any unused marketing collateral, proprietary information and other property provided by Vital Plan to Retailer for use in marketing the Products.
3. Wholesaling Terms
3.1 Purchase and Sale of Products
Retailer shall be allowed to purchase Products directly from Vital Plan as a non-exclusive retailer of Products to End-Users. However, sale or purchase of Products to or from other resellers or Vital Plan Retailers or their affiliates is strictly prohibited. Retailer will only sell the Products and Services in face- to-face transactions with End-Users or as otherwise expressly allowed by Vital Plan and will not market or sell the Products using any website or other broad marketing medium except for Vital Plan’s website and marketing mediums without prior written authorization by Vital Plan.
3.2 Product Prices
The prices paid by Retailer and the prices charged to End-Users for Products shall be set forth in the pricing document supplied by Vital Plan. The MSRP must be the price charged to the End-User by the Retailer. The Vital Plan shall have the right, at any time, to change, alter, or amend Products prices by providing notice to the Retailer. Prices are exclusive of all taxes, insurance, and shipping and handling charges.
Orders shall be placed by Retailer submitting an order request to Vital Plan via vitalplan.com or over the phone with your Vital Plan representative. Any such order shall be completed in a form as directed by Vital Plan and be subject to acceptance by Vital Plan. The terms and conditions of each order shall be as provided by the terms set forth in this Agreement. The provisions of either Party’s form of purchase order, acknowledgment or other business forms will not apply to any order notwithstanding the other Party’s acknowledgment or acceptance of such form.
Shipment will be F.O.B. Retail Location, at which time title and risk of loss will pass to Retailer. All freight, insurance and other shipping expenses from, as well as any expenses related to Retailer’s special packing requests, will be borne by the Retailer unless otherwise agreed to in writing by Vital Plan.
Payments on orders will be due and payable in full at time of purchase unless agreed otherwise by Vital Plan.
3.6 Damaged Product Returns
Vital Plan will accept return of any Products determined to be damaged upon delivery. Retailer must notify delivery personnel of damages upon receiving delivery. Vital Plan reserves the right to charge-back to the Retailer any expenses associated with the return of product where no damage is found or damages occurring after delivery acceptance. Except for damaged Products no other returns, exchanges, or refunds will be provided by Vital Plan.
4. Acceptable Promotion and Use of Vital Plan Materials
Retailer may market and advertise the Products, but in doing so, Vital Plan will be Retailer’s sole source of information, materials and direction on the Product and proper procedures for marketing, resale, promotion and the like.
Retailer cannot create or utilize additional or supplemental information to market or explain the Products without the express prior written consent of Vital Plan. Such restriction shall include, but not be limited to all Vital Plan language, emails, handouts, and product descriptions. No such materials provided by Vital Plan may be copied or pasted onto other mediums of communication except with consent of Vital Plan.
Retailer will also conduct business in a manner that complies with all relevant federal, state, and local regulations and in a manner that reflects favorably at all times on Products and Services and the good name, goodwill and reputation of Vital Plan, and make no false or misleading representations with regard to Vital Plan or Vital Plan’s Products and Services.
5. Governing Law
This Agreement is to be construed in accordance with and governed by the internal laws of the State of North Carolina, without regard to or application of provisions relating to choice of law. The Parties agree that the State Court of the State of North Carolina and the United States District Court for the District of North Carolina located in Raleigh, Wake County, North Carolina shall have exclusive jurisdiction and be the proper venue for any and all lawsuits or disputes that may arise pursuant to this Agreement.
6. Termination of Rights
All amounts payable by Retailer to Vital Plan shall survive termination and become immediately due and payable. In addition, Vital Plan shall have the right, but not the obligation to repurchase, at the predetermined wholesale price, unsold Products in Retailer’s inventory by providing notice following termination. All unfilled orders pending at the time of the date of such notice of termination shall be deemed canceled unless otherwise agreed, and Vital Plan and Retailer hereby waive all claims against the other in connection with the cancellation of such orders unless agreed otherwise by the Parties.
Retailer agrees to indemnify and hold Vital Plan harmless from any and all claims, losses, expenses, fees including attorney fees, costs and judgments that may be asserted against Vital Plan that result from the acts or omissions of Retailer, its employees and agents.
(a) This Agreement or any others agreed upon by both parties shall constitute the complete and exclusive mutual understanding of the parties as to the subject terms thereof. (b) By participating as a Retailer in Vital Plan’s Wholesale Program, you are agreeing to the terms of this agreement, as specified on your individual pricing list and in the on-boarding process.