Herbal Mana Wholesale Agreement
This WHOLESALE AGREEMENT (this “Agreement”) is a legal contract between you and Herbal Mana, LLC. By clicking the box on Herbal Mana’s wholesale application page relevant to the Wholesale Agreement (the “Box”), you acknowledge that you have read and accept and agree to the terms and conditions of this Agreement and to be bound thereby. You acknowledge that clicking the box shall serve as your valid signature (or its equivalent) and your express intent and willingness to be bound by the terms of this Agreement.
Furthermore, by clicking the Box, you represent and warrant that you are legally able and duly authorized to execute this Agreement and that this Agreement shall be binding upon you in accordance with its terms and conditions.
- Wholesale Agreement. This Agreement is an authorization to resell products (the “Products”) manufactured and/or distributed by Herbal Mana, LLC (“Herbal Mana”), but excluding any Products that Herbal Mana excludes from re-sale, determined from time to time in its sole discretion. It is not a supply contract and does not guarantee the availability of Products or delivery lead time. This Agreement shall not become effective, and the proposed wholesaler shall have no rights hereunder until the proposed wholesaler (i) has executed this Agreement by clicking the appropriate box on the application page; (ii) has completed all requirements imposed by Herbal Mana; and (iii) has been notified by Herbal Mana that it has been approved and accepted as an authorized wholesaler hereunder; at which point, the proposed wholesaler shall become an authorized wholesaler (the “Authorized Wholesaler”). Herbal Mana reserves the right to accept or reject any proposed wholesaler in its sole and absolute discretion. THIS AGREEMENT DOES NOT AUTHORIZE, AND AUTHORIZED WHOLESALER IS EXPRESSLY PROHIBITED FROM, SELLING OR RESELLING PRODUCTS ON AMAZON AND AMAZON MARKETPLACE. ANY BREACH OF THIS PROVISION SHALL RESULT IN THE IMMEDIATE TERMINATION OF ALL OF THE AUTHORIZED WHOLESALER’S RIGHTS HEREUNDER.
- Term. This Agreement shall be in effect from the date of execution hereof by Herbal Mana, which date of execution shall be the date in which Herbal Mana notifies the proposed wholesaler it has been approved and accepted as an authorized wholesaler, which notification shall be incorporated into this Agreement by this reference, and shall continue in effect until terminated by either party in writing. Herbal Mana reserves the right to review and/or revoke the authorization of the Authorized Wholesaler at any time by providing notice of termination (the “Revocation Notice”) to the Authorized Wholesaler. Following the provision of such Revocation Notice or any written termination from either party, Authorized Wholesaler shall thenceforth be a “Former Wholesaler.” Upon receipt of the Revocation Notice or termination notice, the Former Wholesaler may continue to sell any Products remaining in its inventory but shall otherwise immediately cease and desist from any and all sale of Products. Notwithstanding the foregoing, Herbal Mana may, in its sole and absolute discretion, require the Former Wholesaler to immediately return all Products remaining in its inventory by providing written notice to the Former Wholesaler. In such event, the Former Wholesaler shall promptly return all such Products in new, unused, and unspoiled condition and shall thereafter receive a refund with respect to the returned products after giving effect to any deductions and set-offs of any amounts owing to Herbal Mana and any shipping and restocking fees provided herein.
- Wholesale Pricing. Current wholesale pricing/discounts are visible on Herbal Mana’s wholesale website (https://wholesale.herbalmana.com/) and automatically applied when logged into an approved wholesale account after a wholesaler has been approved as an Authorized Wholesaler. This pricing is subject to review and change by Herbal Mana from time to time in its sole and absolute discretion. Herbal Mana does not make any pricing commitments to Authorized Wholesaler.
- Retail Pricing. Unless otherwise expressly agreed in writing by Herbal Mana, Authorized Wholesaler shall not sell any of the Products for less than 180 percent of the current wholesale price of the Products as published for authorized wholesalers on Herbal Mana’s wholesale website (https://wholesale.herbalmana.com/). Violation of this paragraph may result in termination of this Agreement.
- Purchasing; Payment. Authorized Wholesaler shall be required to purchase a minimum of $250.00 of Products each calendar quarter. Authorized Wholesaler shall order the Products by submitting a purchase order through Authorized Wholesaler’s account on Herbal Mana’s wholesale website. Herbal Mana does not guarantee the availability of Products. If an item is out of stock, Herbal Mana reserves the right to either hold the order until such out-of-stock Product becomes available or partially accept and fulfill only that portion of the order of Product it has in stock. All orders must be paid in full prior to shipment.
- Prohibited Activities. In addition to the other obligations provided herein, Authorized Wholesaler shall not: (i) make any representations. warranties, or claims regarding the Products other than those made by Herbal Mana; (ii) use deceptive, misleading, or unethical representations or practices that might be detrimental to Herbal Mana; (iii) sell any Product less than three (3) months prior to its scheduled expiration or “sell by” date appearing on the packaging for such Product; or (iv) sell any Products wholesale or otherwise sell any Products if Authorized Wholesaler knows, or has reason to suspect, that such third party intends to resell the Products.
- Taxes. Authorized Wholesaler is required to pay all applicable sales and use taxes arising from the sale of the Products hereunder. Authorized Wholesaler may submit to Herbal Mana either (a) a valid Idaho State Tax Commission Form ST-101 or (b) a valid Uniform Sale and Use Tax Certificate – Multijurisdictional (each, a “Sales Tax Exemption Document”). Upon submission of such Sales Tax Exemption document, Authorized Wholesaler hereby represents and warrants that (i) it is purchasing the Products for resale, (ii) it sells such products in the normal course of its business, and (iii) each transaction consummated hereunder is exempt from any sale or use tax in the jurisdiction in which Authorized Wholesaler provides the Products for resale. Upon receipt of an acceptable Sales Tax Exemption Document, Herbal Mana shall not withhold sales and use taxes with respect to each sale covered by such Sales Tax Exemption Document; provided, however, that Authorized Wholesaler hereby indemnifies and holds Herbal Mana and its owners, members, shareholders, directors, and agents harmless from all damages, costs, and expenses (including reasonable attorneys’ fees) arising in connection with any such transactions claimed as exempt. Upon request, Authorized Wholesaler covenants and agrees to provide any necessary documentation to Herbal Mana certifying the exempt status of any transaction hereunder. Provisions of this Section shall survive any termination of this Agreement.
- Shipping. All shipping costs are the sole responsibility of Authorized Wholesaler. Herbal Mana bears no responsibility for any delays or costs in connection with shipping. Title to and risk of loss of the Products shall pass to Authorized Wholesaler once they have been placed in the carrier's possession at Herbal Mana’s fulfillment center or other designated place of shipping.
- Rejections; Returns. Authorized Wholesaler shall have ten (10) days from the receipt of any shipment of Products to inspect the same and to provide written notification to Herbal Mana of the rejection of any shipment or any part thereof. After the expiration of such time, Authorized Wholesaler shall be deemed to have accepted the entire shipment without defect. In the event that Authorized Wholesaler rejects any shipment or any part thereof, Authorized Wholesaler agrees that its sole remedy shall be to receive a replacement of any product so rejected. All rejected products or other returns must be pre-authorized. All returned products must be in new, unused, and unspoiled condition. Except with respect to instances of rejected shipments, or any part thereof, the returning party will be responsible for shipping charges and a twenty percent handling fee for each returned order.
- White Labeling. If Authorized Wholesaler desires to private label any Herbal Mana product, it must request such product customization in writing from Herbal Mana. Herbal Mana will be pleased to discuss the white labeling of its products. Herbal Mana shall have the right to accept or reject such customization request in its sole discretion, and, notwithstanding anything to the contrary, including any term contained in the customization request, shall not be deemed to have agreed to such customization until it shall have provided written acceptance to Authorized Wholesaler. The terms and conditions of such customization, including additional development costs, shall be separately agreed to by Herbal Mana and Authorized Wholesaler. Any customized product provided pursuant to this Section is subject to all terms contained herein.
- Intellectual Property. All inventions, discoveries, developments, designs, methods, processes, compositions, works, concepts, and ideas (whether or not patentable or copyrightable or constituting trade secrets), including without limitation the Products and all trademarks and trade names of Herbal Mana, and all advertising and marketing materials, conceived, made, created, discussed, developed or reduced to practice by Herbal Mana, whether existing now or in the future, and whether upon Herbal Mana’s own initiative or otherwise suggested, recommended, or requested by Authorized Wholesaler or its clients (whether alone or with others), that relates to the products of Herbal Mana (the “Intellectual Property”) is the sole and exclusive property of Herbal Mana. Authorized Wholesaler hereby assigns and agrees in the future to assign to Herbal Mana its full right, title, and interest in and to all Intellectual Property and agrees to provide, at Herbal Mana’s request, all further cooperation which Herbal Mana reasonably determines is necessary or desirable to accomplish the complete transfer of the Intellectual Property and all associate rights to Herbal Mana, its successors, assigns, and nominees, and to ensure Herbal Mana the full enjoyment of the Intellectual Property. Authorized Wholesaler further agrees that it shall not copy, alter, or appropriate the Intellectual Property in any manner or in any way infringe upon Herbal Mana’s rights in and to the Intellectual Property. The provisions of this Section shall survive any termination of this Agreement.
- LIMITED WARRANTY. HERBAL MANA WARRANTS ALL ITS PRODUCTS AGAINST DEFECTS OF MANUFACTURING OR MATERIALS FOR A PERIOD OF 90 DAYS AFTER THE DELIVERY OF THE PRODUCT TO AUTHORIZED WHOLESALER. THIS WARRANTY IS LIMITED TO MANUFACTURING DEFECTS FOUND WITHIN THE PRODUCT. HERBAL MANA WILL NOT WARRANT PRODUCTS THAT EXHIBIT SIGNS OF MISUSE, ABUSE, OR NEGLECT. ALL WARRANTY CLAIMS ARE SUBJECT TO APPROVAL OF HERBAL MANA. THE EXCLUSIVE REMEDY UNDER THIS WARRANTY IS THE REPLACEMENT OF THE PRODUCT IN ACCORDANCE WITH THE TERMS HEREOF. HERBAL MANA MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL OTHER SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE PROVISIONS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. ALL WARRANTY CLAIMS MUST BE SUBMITTED IN WRITING AND CONTAIN (1) A RECORD OF RETAIL SALE TO THE END USER; (2) A COMPLETE DESCRIPTION OF THE WARRANTY CLAIM, INCLUDING THE DEFECT, THE MANNER OF DISCOVERY, AND THE USE OF THE PRODUCT AT THE TIME OF DISCOVERY; AND (3) PHOTOGRAPHIC DOCUMENTATION OF THE DEFECTIVE PRODUCT. UPON RECEIPT OF A COMPLETE WARRANTY CLAIM, HERBAL MANA WILL SHIP, AT ITS EXPENSE, A PRODUCT REPLACEMENT, WITH PRE-PAID RETURN LABEL TO RETURN THE DEFECTIVE PRODUCT TO THE MANUFACTURER. HERBAL MANA REQUIRES THE RETURN OF THE DEFECTIVE PRODUCT FOR INSPECTION.
- LIMITATION OF LIABILITY. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF HERBAL MANA WITH RESPECT TO ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS, ADJUSTMENTS, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES) (COLLECTIVELY “DAMAGES”) TO AUTHORIZED WHOLESALER, ANY RETAIL CUSTOMER OR OTHER THIRD PARTY CLAIMING BY, THROUGH OR ON BEHALF OF AUTHORIZED WHOLESALER, SHALL NOT EXCEED AMOUNTS PAID BY AUTHORIZED WHOLESALER TO HERBAL MANA UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING SUCH CLAIM, WHETHER SUCH DAMAGES ARE A RESULT OF HERBAL MANA’S NEGLIGENCE, ERROR, OMISSION, STRICT LIABILITY, BREACH OF THIS AGREEMENT OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HERBAL MANA BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES. THE PROVISIONS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
- Marketing and Advertising. Throughout the term hereof, any marketing or promotional materials or products bearing the name Herbal Mana or any other trademark of Herbal Mana or otherwise relating to the Herbal Mana, LLC products must be acquired from and approved by Herbal Mana in its sole and absolute discretion. Authorized Wholesaler may not in any way use, tamper, change, recreate or otherwise modify any trademark or service mark of Herbal Mana or any label or product packaging of the Products.
- Restrictions; Competition. Authorized Wholesaler shall at no time reverse engineer any Herbal Mana Products. Herbal Mana may directly and/or indirectly compete with Authorized Wholesaler and may enter into a wholesale agreement, or any other agreement, with any third party, regardless of whether such third party competes with Authorized Wholesaler either directly or indirectly. This Section shall survive the termination of this Agreement for any reason.
- Relationship. The parties agree that nothing contained in this Agreement shall create any joint venture, partnership, agency, or employment arrangement, and Authorized Wholesaler shall have no authority to bind or act on behalf of the Company.
- Confidentiality. Authorized Wholesaler shall keep and maintain in the strictest confidence all information of Herbal Mana, including without limitation the terms of this Agreement, the Intellectual Property, or other proprietary information, wholesale pricing of Herbal Mana products, technical data, trade secrets or know-how, including, but not limited to, ideas, strategies, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, algorithms, processes, formulas, technology, designs, drawings, engineering, hardware configurations, network configurations, systems architecture, marketing, finances and any and all other business and non-public information, material or data relating to the current and/or future business and operations of Herbal Mana disclosed to Authorized Wholesaler, either directly or indirectly, whether in writing, orally, by drawings, documents, or by audio or visual observation by Authorized Wholesaler, whether or not marked as “confidential” or “proprietary information” by Herbal Mana. Authorized Wholesaler shall ensure the compliance of all of its employees and agents with the provisions of the covenants set forth in this Section. This Section shall survive the termination of this Agreement for any reason. Authorized Wholesaler shall keep and maintain in the strictest confidence the price at which it acquires (or acquired) products from Herbal Mana and any other information relating to the wholesale pricing of Herbal Mana products.
- Authority. Each individual executing this Agreement on behalf of any entity represents and warrants that he, she, or they are duly authorized to execute and deliver this Agreement on behalf of such entity, has all necessary authorization, and that this Agreement shall be binding upon such entity in accordance with its terms.
- Successors and Assigns. This Agreement may not be assigned by either party and, to the extent permitted by law, shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns, and the heirs and legal representatives of any individual party hereto; provided, however, in the event Herbal Mana shall affect a reorganization, consolidation, merger or other transfer of all or substantially all of its properties, assets or business to another person or entity (a “Successor Entity”), Herbal Mana may assign its rights and obligations under this Agreement to such Successor Entity by providing written notice of the same to Authorized Wholesaler, which assignment shall constitute a novation of this Agreement whereby the Successor Entity shall be solely entitled to, and responsible for, the rights and obligations of Herbal Mana hereunder.
- Entire Agreement; Amendments. This Agreement constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. This Agreement may be modified or amended only by a written instrument executed by the parties hereto.
- Counterparts. This Agreement may be executed in any number of counterparts by original or facsimile signature, each of which shall be deemed an original, but all of which together shall constitute one instrument.
- Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing by mail, facsimile, nationally recognized overnight courier, or personal delivery and shall be deemed to have been received within 72 hours after mailing if sent by first-class mail postage prepaid, and (ii) within 36 hours after mailing, if sent via overnight courier, or (iii) effective immediately, if by personal service. The addresses for such communications shall be as provided on the signature page hereto (or to such other address as shall be indicated in accordance with this Section).
- Severability. If any clause or provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, then such clause or provision will be severed from this Agreement, and the Agreement will be enforced to the fullest extent permitted by law in a manner that is consistent with the intentions of the parties hereto.
- Governing Law; Litigation. This Agreement shall be construed in accordance with the laws of the State of Idaho without regard to its conflict of law rules. Should any litigation be commenced between the parties concerning this Agreement, the action shall be brought in Canyon County, Idaho, or the United States District Court for the State of Idaho. The prevailing party in any litigation shall be entitled to recover, in addition to such other relief as may be granted, reasonable attorneys’ fees and costs.
- Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power, or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
- Time of the Essence. The parties hereto agree that time is and shall be of the essence in each and every term and condition contained herein.
IN WITNESS WHEREOF, the Authorized Wholesaler executed this Agreement as of the date it clicked the Box.