Authorized Reseller Terms

1. Scope

These UpWellness Authorized Reseller Terms (“Terms of Sale”) are a binding agreement between the individual or entity entering into this agreement (“You”) and UpWellness, LLC (“UPW”) if You are authorized to order products from UpWellness, LLC for resale to others.

You agree to be bound by these Terms of Sale when placing orders or accepting delivery for UpWellness products purchased under this agreement. If any other agreement between You and UPW includes a hyperlink to these Terms of Sale or otherwise incorporates these Terms of Sale by reference, then these Terms of Sale apply to You. To the extent these Terms of Sale conflict with any other written agreement between You and UPW, the conflict shall be resolved as set forth in such other written agreement or otherwise in favor of such other written agreement. As used herein, “Agreement” means the combination of these Terms of Sale and any other written agreement between You and UPW integrating these Terms of Sale.

You must be at least the age of majority in the state in which you reside to place an order.

2. Orders Procedure

The following information is referred to as “Order Transaction Terms”:

(i) identification of Products to be purchased, including SKUs and all other Product identifiers;

(ii) quantities ordered;

(iii) requested delivery date; and

(iv) the street address to which UPW will deliver the Products ordered (“Delivery Point”).

Orders will be paid for at the time they are placed. All Order Transaction Terms are hereby incorporated by reference into these Terms of Sale, and any reference to these Terms of Sale shall be read to include all Order Transaction Terms. All Orders are subject to UPW minimum order quantities or lead times currently in effect.

Any acceptance by UPW of an Order from You is an acceptance under this Agreement unless another _Agreement is in effect as per above. Any changes or additions You may attempt to make to this Agreement, whether You communicate them when placing Your Order or otherwise, are void and have no effect. Fulfillment of Your Order does not constitute acceptance of any of Your terms and conditions and does not serve to modify or amend these Terms of Sale or any other provisions in the Agreement.

UPW may, in its sole discretion, accept or reject any Order. UPW may accept any Order, in whole or in part, by confirming the Order (whether by written confirmation or otherwise) or by shipping the Products, whichever occurs first. No Order is binding on UPW unless UPW accepts it as provided in these Terms of Sale. Once UPW accepts an Order, You are bound to complete the purchase / receipt of the Products in the Order, and You cannot cancel or otherwise change the Order unless UPW agrees in writing. UPW may, however, cancel any Order for any reason in UPW’s sole discretion and without liability or penalty.

3. Shipping and Handling

You agree to pay any shipping and handling charges shown at the time You make a purchase. UPW reserves the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but UPW will provide notice of the charges applicable to You before You make Your purchase. Generally, shipping is handled by a third-party courier. When You purchase a Product from UPW, any shipping times UPW presents to You are estimates only. Actual delivery dates may vary. You agree that You will not obtain or direct shipment of a Product for export. All Products purchased from UPW are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to You upon UPW’s delivery of the Product to the third-party courier. UPW will deliver the Products to You at the location provided by You at the time of Your Order.

4. Deliveries

You are responsible for inspecting all Products You receive from UPW for any damage or other issues upon delivery. From the time of delivery, the condition and consumption of the Products are solely at Your risk, and You are solely responsible for the proper and safe handling, preparation, storage, use and consumption of the Products following delivery. Failure to follow safe food handling practices may increase the risk of food-borne illness.

In the case of inclement weather or other events beyond UPW’s control that interfere with UPW’s or its Affiliates’ ability to deliver Your Order, UPW will attempt to deliver Your Order as soon as reasonably possible.

5. Return Policy

If You are dissatisfied with a Product and would like to inquire about a return, please contact the UPW Customer Service team at 1-800-876-2196, Monday – Friday: 9:00am – 5:00pm ET. Prior authorization from the Customer Service team and proof of purchase is required for all returns. Only unopened items returned with prior authorization and proof of purchase within thirty (30) days of delivery may be accepted as returns. UPW, in its sole discretion, will either replace or provide a credit for all Products accepted as returns. A restocking fee of 20% of the purchase price of the products will be charged for all returns not covered by warranty. Unless UPW agrees otherwise in writing, reports of damaged Products or order discrepancies must be communicated to UPW within seventy-two (72) hours of delivery in order to qualify for return or replacement. Private label, heat sensitive and Products marked “Non-Returnable” are non-returnable and no credit or replacement will be given, unless covered by warranty. All barcodes on product labels must be intact. Products with labels that have been altered in any way are non-returnable.

6. Payment and Billing

By providing a credit card or other payment method that UPW accepts, You represent and warrant that You are authorized to use the designated payment method and that You authorize UPW (or UPW’s third party payment processor) to charge Your payment method for the total amount of Your Order (including any applicable taxes and other charges), without any set-off or other reduction. If the payment method cannot be verified, is invalid or is otherwise not acceptable, Your Order may be suspended or cancelled. You must resolve any problem UPW encounters in order to proceed with Your Order.

Any payment terms presented to You for the purchase of Products or other services are deemed part of these Terms. You acknowledge that the amount billed may vary due to promotional offers, or changes in applicable taxes or other charges, and You authorize UPW (or UPW’s third party payment processor) to charge Your payment method for the corresponding amount.

UPW may use a third-party payment processor (the “Payment Processor”) to bill You through a payment account for Your purchase of Products. If so, the processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. UPW is not responsible for errors by the Payment Processor. By choosing to purchase Products, You agree to pay UPW, directly or through the Payment Processor, all charges at the prices for the Products in accordance with the applicable payment terms and You authorize UPW, directly or through the Payment Processor, to charge Your chosen payment provider (Your “Payment Method”). You agree to make payments using that selected Payment Method. UPW reserves the right to correct any errors or mistakes that it makes even if UPW or its Payment Processor have already requested or received payment.

7. Pricing and Availability

All prices are in U.S. dollars, and applicable taxes and other charges, if any, are additional. UPW reserves the right to update the advertised prices of the Products, and to modify any discounts or promotions that may be offered, as UPW may determine in its sole discretion, at any time and without notice.

All of UPW’s Products are subject to availability, and UPW reserves the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products without prior notice. UPW strives to provide You with high-quality Products, and given the perishable nature of certain Products and market conditions beyond UPW’s control, items may go on back order when not available or may be discontinued.

8. Coupons and Promotional Codes

Coupons and promotional codes provided to You are for Your use only. You may not transfer, reproduce, trade, offer for sale, publish or otherwise share coupons and promotional codes unless the terms of the coupon or promotional code expressly allow You to do so. UPW reserves the right to cancel Orders when UPW has reason to believe that any coupon or promotional code is being used by someone other than the intended recipient, or in the case of suspected abuse, misuse or fraud. UPW reserves the right to terminate a coupon or promotional code offering at any time and/or set expiration dates for such offers at any time and in UPW’s sole discretion. Coupon codes and promotional codes are not valid on prior purchases.

9. Sales Taxes

Unless You provide a valid sales tax exemption certificate or other valid basis for exemption to UPW, UPW will collect applicable sales tax and/or any other applicable taxes on Products shipped to the states, territories, provinces, or other jurisdictions for which UPW determines UPW has a duty to collect sales tax or other taxes. If an item is subject to tax, You agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

10. Point of Sale

This Agreement is restricted to allowing You to sell UPW products from your physical location. You shall not offer for sale any UPW Product in any online location. Only UPW is allowed to offer products for sale online, with the UPW primary product sales site being: upwellness.com. You are allowed to promote UPW products that you sell from your physical location in e-mails or on your own website, however, you may not allow ‘online sales’, in the sense that the purchaser could simply buy the product from an online location you promote or for which you are responsible.

11. Intellectual Property

You shall not use UPW’s trademarks or copyrighted material without permission, and You shall follow UPW’s brand use guidelines, policies, or other instructions UPW may give You from time to time regarding the use of UPW’s trademarks and copyrighted material. You shall not attempt to manufacture, duplicate, or otherwise copy, reverse engineer or reproduce any of the Products. UPW retains all of its rights related to its trademarks, copyrights and other intellectual property.

12. Product Warranty

Product Warranty

UPW warrants for a period of one (1) year from the date of manufacturing that at the time of delivery: (i) each Product shall conform to UPW’s written specifications for such Product; (ii) each Product shall be fit for human consumption; and (iii) title to the Products shall be free from any lien, security interest or encumbrance. UPW shall at UPW’s option either replace or provide a credit for any Products not conforming to the warranties set forth in this Section and returned pursuant to the Return Policy in Section 5. This is Your sole remedy and UPW’s entire liability for breach of the warranties provided in this Section.

Product Warranty Exceptions

You void the above Product warranty (“Product Warranty”) if: (i) You sell, consume, or otherwise use the Products after notifying UPW that they do not conform to the Product Warranty; (ii) You fail to follow UPW’s oral or written instructions as to the storage, handling, distribution or use of the Products; or (iii) You alter, adulterate, break the seal on, or remove any bar code from the Products.

Product Warranty Disclaimer

TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS SET FORTH IN IN THIS SECTION 12, NEITHER UPW, ITS AFFILIATES, NOR ANY PERSON ACTING ON UPW’S BEHALF MAY MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

13. Performance by UPW’s Affiliates

UPW may perform and exercise its rights under this Agreement on its own behalf or through any other person or other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, UPW (collectively, its “Affiliates”), regardless of whether the applicable provision(s) of the Agreement expressly reference UPW’s Affiliates. References to “UPW” in these Terms of Sale shall be interpreted to encompass UPW and/or its Affiliates. UPW shall be responsible for any acts or omissions of its Affiliates that would constitute a breach of any of the applicable terms and conditions of this Agreement if such acts or omissions were acts or omissions of UPW. In this Section, “control” means the power to direct or cause the direction of the management and policies of a person or other entity, whether through the ownership of voting securities, by contract, or otherwise. Affiliates shall be third-party beneficiaries of these Terms of Sale.

14. Indemnification

You shall indemnify, defend and hold harmless UPW, its Affiliates, and their officers, directors, employees, agents, independent contractors, affiliates, successors and permitted assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, costs, or expenses, including reasonable attorneys’ fees and court costs (each, a “Loss”), incurred by an Indemnified Party directly as a result of any claim of a third party (“Claim”) arising out of: (i) Your breach of any covenant, representation, or warranty in the Agreement; (ii) Your marketing, advertising, promotion or sale of any Product, except to the extent arising out of the use or consumption of any Product in accordance with labeled instructions; and (iii) Your violation of applicable laws related to Your purchase or resale of Products, including but not limited to California’s Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, and the regulations promulgated thereunder, commonly known as Prop 65.

You will cooperate fully as required by Indemnified Parties in the defense of any Claims. Notwithstanding the foregoing, Indemnified Parties retain the exclusive right to settle, compromise, and pay Claims, in which case You shall reimburse Indemnified Parties for such losses. Indemnified Parties reserve the right to assume the exclusive defense and control of Claims. You will not settle any Claims without, in each instance, the prior written consent of an officer of an Indemnified Party against which the Claim is made. This section is not intended to limit any causes of action against UPW that You may have but are not waivable under applicable law. Without the consent of an officer of the Party against which a Claim is made, You shall not enter into any settlement that admits liability as to such Claim on behalf of such Indemnified Party or causes an Indemnified Party to take any action.

15. Limitation of Liability

AS PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UPW OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE TERMS OR THE PRODUCTS TO BE PROVIDED UNDER THE TERMS, EVEN IF UPW OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. AS PERMITTED BY APPLICABLE LAW, UPW AND ITS AFFILIATES’ LIABILITY FOR MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THE AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID TO UPW FOR PRODUCTS SOLD UNDER THE AGREEMENT IN THE SIX (6) MONTH ROLLING PERIOD IMMEDIATELY PRECEDING THE CLAIM OR 50,000 U.S. DOLLARS, WHICHEVER IS LESS. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE LEGAL THEORY OF LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY WHATSOEVER.

16. Jurisdiction; Venue
    

i. As to disputes arising from or related to Your business operations in the U.S., including, without limitation, disputes arising from or related to Products labeled for sale in the U.S. or that UPW or its Affiliates, for Your Account, delivered or caused to be delivered to an address, entity, or person located in the U.S. (“U.S. Products”) or the purchase, listing, advertising, offering for sale, sale, or distribution thereof (such disputes, “U.S. Disputes”), these Terms of Sale shall be governed in all respects by the substantive laws of the United States of America and the State of Florida without regard to conflict of law principles. The sole and exclusive venue and jurisdiction for U.S. Disputes arising from or related to these Terms of Sale shall be in the U.S. District Court located in West Palm Beach, Florida or the state courts of Florida located in Palm Beach County, Florida, and UPW and You hereby submit to the jurisdiction of such courts for U.S. Disputes; provided, however, that equitable relief with respect to U.S. Disputes may be sought in any court having proper jurisdiction.

ii. Priority of These Terms of Sale; Joinder of Claims. As to disputes arising from these Terms of Sale, this Section 16 prevails over the jurisdiction, venue, and other dispute resolution provisions in any other agreement between You and UPW. If and only if UPW litigates a dispute arising from these Terms of Sale, UPW may, at its option, join in such action any claims arising from any other agreement between UPW and You, notwithstanding that bringing such claims in that context might otherwise violate dispute resolution procedures set forth in the other agreements. Such action may proceed even if all the claims arising from these Terms of Sale are dismissed, settled, or otherwise resolved, leaving only the claims that arise from the other agreements.

17. Force Majeure

Any delay or failure of UPW to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused by an event beyond UPW’s control, without UPW’s fault or negligence, and that by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, civil unrest, epidemics or pandemics, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power, Internet connectivity, or transportation facilities).

18. Assignment

Neither Party may assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of the other Party, except UPW may do so in the event of a transaction resulting in a change in controlling ownership of the company or resulting in a sale of all or substantially all of its assets or in the event of a corporate reorganization. The Terms are binding on and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.

19. Modification

UPW shall have the right, in UPW’s sole discretion, to modify the Agreement from time to time, and the modified terms become effective on posting and acceptance by You. Otherwise, the Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of each Party. UPW may restrict Your access to purchase Products unless You agree to the latest version of the Agreement.

20. Waiver

No waiver by any Party of any of the provisions of the Agreement or such Party’s rights or remedies hereunder shall be effective unless set forth in writing and signed by the Party so waiving.

21. Notice

You agree that UPW may give You notices required by the Agreement (each a “Notice”) or otherwise respond to You at the address and/or email address UPW has on file for You or in any other manner reasonably elected by UPW. All Notices from You to UPW must be in writing addressed to: (i) legal@upwellness.com; (ii) or “UpWellness, LLC, 4300 S US Highway 1, Ste 203-208, Jupiter, FL 33477, Attn: Legal Department. All Notices from You shall be delivered by e-mail, personal delivery, or nationally recognized overnight courier. Unless Notice from You is by e-mail, it must be return receipt requested and postage prepaid. Except as otherwise provided in the Agreement, a Notice is effective only if the Party giving the Notice has complied with the requirements of this Section. Notice received after 5:00 p.m. ET on any business day will be deemed received the following business day.

22. Miscellaneous

(a) The Parties are independent contractors and nothing in the Agreement shall be deemed or constructed as creating an agency or employment relationship between UPW and You.

(b) Neither Party, by virtue of the Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.

(c) In the event any provision in the Agreement is for any reason held to be invalid or unenforceable in any respect under the laws of any jurisdiction, such invalidity or unenforceability shall not affect any other provision of the Agreement, and the Agreement shall be construed as if such invalid or unenforceable provision had not been contained herein.

(d) The Agreement, together with all other agreements, schedules, or exhibits incorporated by reference into the Agreement, or attached to the Agreement, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior oral or written agreements between the Parties on the same subject matter.

(e) These Terms of Sale survive: (i) the fulfillment of any Order, and (ii) the expiration, termination, or other ending of any agreement into which these Terms of Sale are incorporated or otherwise made a part.