Authorized Distributor Agreement
This Distribution Agreement (this “Agreement”) is entered into as of the Effective Date (set forth above) by and between TROSCRIPTIONS LLC, a Delaware Limited Liability Company, with its principal offices located at 8 The Green #16151, Dover DE 19901-3618 USA (“Troscriptions”), and the distributor (“Authorized Distributor”). In consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Applicability.
(a) The terms and conditions set forth in this Agreement and the Purchase Order Transaction Terms (as defined in Section 3(b)) set forth in the applicable Purchase Order (as defined below) submitted by Authorized Distributor to Troscriptions and that is accepted by Troscriptions in writing are the only terms that govern the sale of Goods by Troscriptions to Authorized Distributor. For purposes of this Agreement, (i) the term “Goods” means those products that Troscriptions, in its sole discretion, makes available for purchase by Authorized Distributor from time to time; (ii) “Purchase Order” means the purchase order for Goods submitted by Authorized Distributor to Troscriptions in compliance with the terms of this Agreement; (iii) “Authorized Channels” means the sales channels listed on the first page of this Agreement under Authorized Sales Channels; (iv) “Practitioner-Only Products” means Goods designated by Troscriptions as available only under practitioner oversight; (v) “Verified Practitioner” means an Eligible Practitioner whose current professional license and affiliation with the Authorized Distributor have been confirmed by Troscriptions in accordance with Troscriptions’ then-current verification process, which may include completion of an online intake form or similar submission requiring proof of licensure and affiliation, and which Troscriptions may update or replace at any time upon written notice to Authorized Distributor; and (vi) “Eligible Practitioner” means a healthcare professional in good standing and practicing within the scope of a valid license, including (A) physicians (M.D. or D.O.), (B) nurse practitioners (including N.P. and A.P.R.N.), (C) chiropractors (D.C.), and (D) naturopathic physicians or doctors (N.D. or N.M.D.), and any other category of licensed practitioner that Troscriptions may designate in its sole discretion from time to time, provided that nothing in these definitions obligates Troscriptions to perform any specific form of verification or re-verification and the Authorized Distributor remains solely responsible for ensuring that its practitioners are duly licensed and in good standing.
(b) This Agreement, together with the Purchase Order Transaction Terms in Purchase Orders submitted by Authorized Distributor for Goods to Troscriptions from time to time and that are accepted by Troscriptions, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Authorized Distributor’s general terms and conditions of purchase regardless of whether or when Authorized Distributor has submitted such terms and conditions. Fulfillment of Authorized Distributor’s Purchase Order does not constitute acceptance of any of Authorized Distributor’s terms and conditions and does not serve to modify or amend this Agreement.
2. Sales.
(a) Goods purchased by the Authorized Distributor shall be offered for sale solely through the Authorized Channels and solely to individual consumers for their personal use. Authorized Distributor may purchase and sell Practitioner-Only Products only while it maintains at least one Verified Practitioner who is actively employed or otherwise formally engaged by Authorized Distributor and available on-site during any hours when such products are offered for sale. Authorized Distributor shall notify Troscriptions in writing within five (5) business days of any change in a Verified Practitioner’s employment, licensure, or good-standing status, and shall provide updated documentation upon request. Troscriptions may, in its sole discretion, suspend or terminate Authorized Distributor’s ability to purchase or sell Practitioner-Only Products if compliance lapses, pending satisfactory documentation of a replacement Verified Practitioner. Unless explicitly authorized in writing by Troscriptions, Authorized Distributor shall not: (i) sell, market, advertise or distribute Goods through any online or e commerce channels, including but not limited to websites, mobile applications, social media platforms, online marketplaces, or any other digital platforms; (ii) engage in any online advertising or marketing of the Goods, including but not limited to search engine marketing, paid keywords, social media advertising, or display advertising; (iii) sell or otherwise transfer any Goods by any means to any entity or individual for resale, marketing or distribution; (iv) sell or otherwise transfer any Goods by any means to any entity or individual that Authorized Distributor might reasonably believe may resell, market or distribute any of the Goods; or (v) advertise or solicit sales or sell or transfer Goods through any channel other than the Authorized Channels. Authorized Distributor agrees that it will educate and cause its employees and agents to comply with the foregoing obligations. Authorized Distributor acknowledges Troscriptions’ ownership of Troscriptions’ Intellectual Property Rights (as defined in Section 13). Authorized Distributor shall not use any Troscriptions’ Intellectual Property Rights without Troscriptions’ prior written approval and shall strictly comply with Troscriptions’ brand guidelines, which may be updated from time to time. Any authorized use of the Troscriptions’ Intellectual Property Rights shall be solely for the purpose of marketing and selling the Goods through Authorized Channels and shall immediately cease upon termination of this Agreement or upon Troscriptions’ request. Authorized Distributor agrees that any violation of the restrictions regarding online sales, marketing, or unauthorized use of the Troscriptions’ Intellectual Property Rights will result in immediate and irreparable harm to Troscriptions for which money damages would be inadequate. Therefore, Troscriptions shall be entitled to immediate injunctive relief to enforce these provisions, in addition to any other remedies available at law or equity, plus reasonable attorneys’ fees and costs incurred in enforcing this provision. Authorized Distributor agrees to compensate Troscriptions for damages arising from any violation of this Section 2, including but not limited to reimbursing Troscriptions for costs incurred in purchasing Goods from any person or entity to which Authorized Distributor has sold or transferred Goods in violation of this Agreement.
(b) Authorized Distributor shall not sell Goods online below Troscriptions’ then-current suggested retail price (“MSRP”) or offer an in-store discount of more than 10% of MSRP. Troscriptions reserves the right to modify MSRP at any time upon written notice to Authorized Distributor.
3. Orders Procedure.
(a) Authorized Distributor shall purchase through the wholesale portal on troscriptions.com. Upon Troscriptions acceptance of this wholesale application, Troscriptions will issue a unique login to Authorized Distributor for wholesale purchase on www.troscriptions.com. Authorized Distributor shall not share this login with any third parties and shall immediately notify Troscriptions of any unauthorized access or security breach relating to such login credentials. Authorized Distributor shall ensure that all purchases contain the Purchase Order Transaction Terms. By placing an order, Authorized Distributor makes an offer to purchase Goods under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Other than with respect to the Purchase Order Transaction Terms, any variations made to the terms and conditions of this Agreement by Authorized Distributor in any Purchase Order are void and have no effect.
(b) Authorized Distributor shall specify the following information (collectively, the “Purchase Order Transaction Terms”) in each Purchase Order: (a) the Goods to be purchased or other product identifier; (b) quantities ordered; and (c) the address to which such Goods are requested to be shipped.
(c) Troscriptions may, in its sole discretion, accept or reject any Purchase Order. Troscriptions may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Goods, whichever occurs first. No Purchase Order is binding on Troscriptions unless accepted by Troscriptions as provided in this Agreement.
(d) Authorized Distributor Purchase Order quantity shall meet the minimum order quantity set by Troscriptions.
4. Shipment.
(a) Where Goods are shipped to a location within the United States of America, unless expressly agreed to by the parties in writing and signed by an authorized representative of Troscriptions, Troscriptions shall select the method of shipment of and the carrier for the Goods. Troscriptions may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Authorized Distributor. Each shipment constitutes a separate sale, and Authorized Distributor shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order.
(b) Where Goods are shipped to a destination country outside of the United States of America, unless expressly agreed to by the parties in writing and signed by an authorized representative of Troscriptions, Authorized Distributor will utilize its own shipper and will make all shipping arrangements with such shipper. Troscriptions may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Authorized Distributor. Each shipment constitutes a separate sale, and Authorized Distributor shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order.
(c) Unless expressly agreed to by the parties in writing and signed by an authorized representative of Troscriptions, Troscriptions shall ship the Goods using Troscriptions’ standard methods for packaging and shipping the Goods. All prices for Goods are FOB (Troscriptions’ logistics provider in Carol Stream, Illinois) (the “Delivery Point”). Authorized Distributor shall pay for all shipping charges and insurance costs, if any, from the Delivery Point to any other address to which such Goods are requested to be shipped.
5. Title and Risk of Loss. For the Purchase Order, title and risk of loss passes to Authorized Distributor upon delivery of the Goods to the shipper at the Delivery Point.
6. Price. The prices for Goods sold under this Agreement shall be per Troscriptions’ then-current wholesale price list, which Troscriptions may modify at any time upon thirty (30) days’ prior written notice to Authorized Distributor. The standard distributor discount is forty percent (40%) off MSRP. All prices are exclusive of all shipping charges, insurance costs and sales, use and excise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposed by any governmental authority. Authorized Distributor shall be responsible for all such charges, costs, taxes, duties and tariffs, and shall indemnify and hold Troscriptions harmless against any liability or responsibility for any such charges, costs, taxes, duties and tariffs.
7. Payment Terms.
(a) Authorized Distributor shall pay one hundred percent (100%) of amounts due at the time a Purchase Order is accepted by Troscriptions, and the Goods are ready to be shipped. Goods will not be shipped unless payment therefore is received by Troscriptions. All payments are to be made in United States dollars. Authorized Distributor agrees not to dispute any authorized charge made to Authorized Distributor’s credit card for the purchase of Goods or to seek a chargeback for such authorized charges, except in cases of proven, and agrees to pay all of Troscriptions’ costs, including reasonable attorneys’ fees, incurred in defending against any improper chargeback, fraud or unauthorized use.
(b) If applicable, Authorized Distributor shall pay interest on all late payments at the lesser of the rate of 2.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Authorized Distributor shall reimburse Troscriptions for all costs incurred in collecting any payments owed to it, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Troscriptions does not waive by the exercise of any rights hereunder), Troscriptions shall be entitled to suspend the delivery of any Goods if Authorized Distributor fails to pay any amounts when due hereunder.
(c) Authorized Distributor shall perform its obligations under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by Troscriptions, whether relating to Troscriptions’ breach or otherwise and whether under this Agreement, any Purchase Order, any other agreement between Authorized Distributor or any of its affiliates and Troscriptions, or otherwise.
(d) As collateral security for the payment of the purchase price of the Goods, Authorized Distributor hereby grants to Troscriptions a lien on and security interest in and to all of the right, title and interest of Authorized Distributor in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.
8. Inspection of Nonconforming Goods.
(a) Authorized Distributor shall inspect the Goods as follows: (i) if the Goods are collected by Authorized Distributor or on its behalf at the Delivery Point, before accepting such Goods, or (ii) if the Goods are shipped to Authorized Distributor, within five days of receipt (in each case, the “Inspection Period”). Authorized Distributor will be deemed to have accepted the Goods unless it notifies Troscriptions in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Troscriptions. “Nonconforming Goods” means only the following: (A) the applicable Goods are different than those identified in the applicable Purchase Order; or (B) the label or packaging of the applicable Goods incorrectly identifies its contents.
(b) If Authorized Distributor timely notifies Troscriptions of any Nonconforming Goods, Troscriptions shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Authorized Distributor in connection therewith. Authorized Distributor shall ship, via the method selected by Troscriptions and at Troscriptions’ expense, but at Authorized Distributor’s risk of loss, the Nonconforming Goods to Troscriptions to such address as may be designated by Troscriptions. Troscriptions shall reimburse Authorized Distributor for such shipping expense. If Troscriptions exercises its option to replace Nonconforming Goods, Troscriptions shall, after receiving Authorized Distributor’s shipment of Nonconforming Goods, ship to Authorized Distributor the replaced Goods to the Delivery Point. If Troscriptions exercises its option to credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Authorized Distributor inconnection therewith, Troscriptions shall do so after receiving Authorized Distributor’s shipment of Nonconforming Goods.
9. Product Recalls.
(a) If Troscriptions initiates a recall, market withdrawal, or safety alert of any Goods (a “Recall”), whether voluntary or required by any governmental authority, Troscriptions shall promptly notify Authorized Distributor in writing. Upon receipt of such notice, Authorized Distributor shall:
(i) immediately cease distribution of the affected Goods;
(ii) cooperate fully with Troscriptions in conducting the Recall;
(iii) follow all reasonable instructions provided by Troscriptions regarding the Recall;
(iv) promptly provide Troscriptions with all information requested regarding the affected Goods, including inventory levels and distribution records; and
(v) assist in notifying customers and retrieving affected Goods as directed by Troscriptions.
(b) Troscriptions shall reimburse Authorized Distributor for: (i) the purchase price of affected Goods returned to Troscriptions or destroyed at Troscriptions’ direction; and (ii) reasonable documented out-of-pocket costs incurred by Authorized Distributor in conducting Recall activities requested by Troscriptions.
(c) Except as required by applicable law, Authorized Distributor shall not initiate or make any public statements about a Recall without Troscriptions’ prior written approval.
(d) Authorized Distributor acknowledges and agrees that the remedies set forth in Section 8(b) are Authorized Distributor’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), Section 9, Section 10 and Section 11, all sales of Goods to Authorized Distributor are final, non-exchangeable and non-refundable for any reason whatsoever.
10. Limited Right of Return. Subject to the terms of this Agreement and Troscriptions’ prior written authorization, during the Return Period (as defined below), Authorized Distributor may return, at its sole expense and risk of loss, the applicable Goods purchased from Troscriptions under this Agreement and may receive a refund for the purchase price paid for such Goods, less a restocking fee of fifteen percent (15%). Troscriptions shall, after receiving any Goods returned to it in compliance with this Section 9, refund to Authorized Distributor the purchase price paid by Authorized Distributor to Troscriptions for the returned Goods. For the avoidance of doubt, no shipping charges, insurance costs or sales, use and excise taxes, or any other similar taxes, duties, tariffs or charges of any kind are refundable. Only Goods that are in their original packaging (unopened and undamaged) are eligible to be returned, and only Goods received by Troscriptions during the Return Period for such Goods are eligible for a refund. The “Return Period” means the 30-day period that begins on the date the Goods that are subject of the return were delivered to Authorized Distributor. Troscriptions has the right to set off or recoup any refund it owes to Authorized Distributor against any amount owed or liability for which Authorized Distributor is liable to Troscriptions, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
11. Representations and Warranties.
(a) General. Authorized Distributor represents and warrants to Troscriptions that: (a) if it is a corporation, limited liability company or other type of entity, it is duly organized, validly existing and in good standing in the jurisdiction of its incorporation, organization or formation; (b) if it is a corporation, limited liability company or other type of entity, it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (c) it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set out at the end hereof has been duly authorized by all necessary action of Authorized Distributor; and (d) when executed and delivered by each of Troscriptions and Authorized Distributor, this Agreement will constitute the legal, valid and binding obligation of Authorized Distributor, enforceable against Authorized Distributor in accordance with its terms; and (e) it shall at all times during the term of this Agreement and at any time it purchases Goods hereunder, have a reseller permit and all other required licenses, permits and authorizations on file with Troscriptions that are in full force and effect, and shall promptly notify Troscriptions of any changes to such permits or authorizations.
(b) Limited Product Warranty and Recalls. Subject to the provisions of this Section 10, Authorized Distributor may extend its own Limited Product Warranty” (the “Limited Warranty”) to each individual consumer who purchases a Good from Authorized Distributor for his or her personal use (“Consumer”). Consumer returns shall be refunded by Authorized Distributor according to Authorized Distributor’s return and refund policy. In the event of any product recall initiated by Troscriptions or any regulatory authority, Authorized Distributor shall: (i) immediately cease distribution of the affected Goods; (ii) cooperate fully with Troscriptions in implementing the recall; (iii) follow Troscriptions’ instructions regarding the handling, return, or disposal of recalled Goods; (iv) maintain accurate records of all recalled Goods; (v) assist in notifying Consumers of the recall as directed by Troscriptions; and (vi) be responsible for all costs associated with implementing the recall at the Authorized Distributor level, including but not limited to shipping, handling, and storage of recalled Goods. Troscriptions shall reimburse Authorized Distributor for the purchase price of recalled Goods that are returned to Troscriptions in accordance with recall instructions.
(c) Warranties Disclaimer; Non-reliance. (A) NEITHER TROSCRIPTIONS NOR ANY PERSON ON ITS BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) AUTHORIZED DISTRIBUTOR ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY TROSCRIPTIONS, OR ANY OTHER PERSON.
12. Authorized Distributor Obligations. Authorized Distributor shall:
(a) market, advertise, promote, and sell the Goods to Consumers solely through physical retail locations and not through any online, digital, or e-commerce channels (including but not limited to websites, mobile applications, social media platforms, or third-party marketplaces), in a manner that reflects favorably at all times on Goods and the good name, goodwill and reputation of Troscriptions and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the Goods;
(b) have sufficient knowledge of the industry and products competitive with each Good (including specifications, features, and benefits) so as to be able to explain in detail to Consumers: (i) the differences between the Good and competing products; and (ii) information on standard protocols and features of each Good;
(c). not engage in any online advertising, including but not limited to paid search advertising, social media advertising, display advertising, or email marketing, without Troscriptions’ prior written approval.
(d) not bid on or use any of Troscriptions’ trademarks or trade names as keywords for search engine marketing
(e) submit all Goods-related promotional and marketing materials to Troscriptions for written approval at least ten (10) business days prior to use and observe all directions and instructions given to it by Troscriptions in relation to the marketing, advertisement, and promotion of the Goods, including Troscriptions’ sales, marketing, and merchandising policies as they currently exist or as they may hereafter be changed by Troscriptions;
(f) not make any misleading or untrue statements concerning Troscriptions or the Goods, including any product disparagement or “bait-and-switch” practices;
(g) promptly notify Troscriptions of any complaint or adverse claim about any Good or its use of which Authorized Distributor becomes aware; and
(h) not resell Goods to any federal, state, local, or foreign government or political subdivision or agency thereof, without express written approval from Troscriptions; and
(i) not sell, advertise, or promote the Goods through any e-commerce platform, marketplace (including but not limited to Amazon, eBay, Walmart.com, or similar platforms), or Authorized Distributor’s own website without Troscriptions’ prior written consent.
13. Limitation of Liability. IN NO EVENT SHALL TROSCRIPTIONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY AUTHORIZED DISTRIBUTOR OR COULD HAVE BEEN REASONABLY FORESEEN BY TROSCRIPTIONS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TROSCRIPTIONS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TROSCRIPTIONS FOR THE GOODS SOLD HEREUNDER DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD.
14. Intellectual Property
(a) For purposes of this Agreement: (i) “Intellectual Property Rights” means all intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) Copyrights; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world; (ii) “Troscriptions’ Intellectual Property Rights” means all Intellectual Property Rights owned by or licensed to Troscriptions; (iii) “Troscriptions’ Trademarks” means all Trademarks owned or licensed by Troscriptions; (iv) “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world; and (v) “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
(b) Subject to Troscriptions’ trademark policies as may be in effect from time to time, and which may be amended from time to time in Troscriptions’ sole discretion, and the terms and conditions of this Agreement, Troscriptions hereby grants to Authorized Distributor a non-exclusive, non-transferable, non sublicensable, revocable license to use Troscriptions’ Trademarks only during the term of this Agreement solely on or in connection with the promotion, advertising and resale of the Goods in accordance with the terms and conditions of this Agreement. If and when requested by Troscriptions, Authorized Distributor shall promptly discontinue the display or use of any Trademark and/or change the manner in which any Trademark is displayed or used with regard to the Goods. Other than the express licenses granted in this Agreement, Troscriptions grants no right or license to Authorized Distributor by implication, estoppel or otherwise to any of Troscriptions’ Intellectual Property Rights. Authorized Distributor acknowledges and agrees that: (i) any and all of Troscriptions’ Intellectual Property Rights are the sole and exclusive property of Troscriptions or its licensors; (ii) Authorized Distributor shall not acquire any ownership interest in any of Troscriptions’ Intellectual Property Rights; and (iii) any goodwill derived from the use by Authorized Distributor of Troscriptions’ Intellectual Property Rights inures to the benefit of Troscriptions or its licensors, as the case may be.
(c) Authorized Distributor shall not: (i) take any action that may interfere with any of Troscriptions’ rights in or to Troscriptions’ Intellectual Property Rights, including Troscriptions’ ownership or exercise thereof, or use any of Troscriptions’ intellectual property, including but not limited to product images, photographs, marketing materials, product descriptions, or other content, on any website, social media platform, or other digital medium without Troscriptions’ express written consent; (ii) challenge any right, title or interest of Troscriptions’ rights in or to Troscriptions’ Intellectual Property Rights; (iii) make any claim or take any action adverse to Troscriptions’ ownership of Troscriptions’ Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Troscriptions’ Trademarks or any other Trademark that is similar to Troscriptions’ Trademarks or that incorporates Troscriptions’ Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere in the world, that is confusingly similar to Troscriptions’ Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any of Troscriptions’ Intellectual Property Rights; (vii) misappropriate any of Troscriptions’ Intellectual Property Rights for use as a domain name without prior written consent from Troscriptions; or (viii) alter, obscure or remove any of Troscriptions’ Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Troscriptions may provide.
(d) On termination of this Agreement: Authorized Distributor’s rights under Section 10(a) cease immediately; and Authorized Distributor shall immediately cease all display, advertising, promotion and use of all of Troscriptions’ Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with Troscriptions’ Trademarks or with any trademark, trade name or product designation associated with Troscriptions or any Good.
14. Compliance with Law. Authorized Distributor, at its sole expense, shall comply with all applicable laws, regulations and ordinances, including without limitation all applicable FDA regulations, healthcare laws, and dietary supplement regulations related to the purchase of the Goods from Troscriptions and the resale of such Goods, in each case, in accordance with the terms of this Agreement. Authorized Distributor shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Authorized Distributor shall indemnify and hold Troscriptions harmless against any liability or responsibility for any failure by Authorized Distributor to comply with any applicable laws, regulations or ordinances or to maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Authorized Distributor shall ensure that any sale, dispensing, or distribution of Practitioner-Only Products occurs only under the direct supervision of a Verified Practitioner and in full compliance with all applicable healthcare and licensing laws, and shall maintain appropriate records demonstrating such compliance and make them available to Troscriptions upon reasonable request.
15. Term and Termination. The initial term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year, and shall automatically renew for successive one (1) year terms thereafter, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term, or unless earlier terminated as provided herein. Either party may terminate this Agreement upon 30 days prior written notice; provided that Troscriptions may terminate this Agreement immediately upon written notice if, in Troscriptions’ reasonable judgment, Authorized Distributor’s actions may damage Troscriptions’ reputation or goodwill; provided that no such termination shall have any effect on any breach of this Agreement, or any obligation incurred under this Agreement prior to such termination. All termination notices must be in writing and delivered via certified mail, overnight courier, or email with confirmation of receipt to the address specified in Section 25 of this Agreement. In addition to any remedies that may be provided under this Agreement, Troscriptions may terminate this Agreement with immediate effect upon written notice to Authorized Distributor, if Authorized Distributor: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Upon termination of this Agreement, all outstanding purchase orders accepted by Troscriptions prior to the effective date of termination shall be fulfilled according to their terms, unless otherwise agreed in writing by both parties. Authorized Distributor shall remain obligated to pay for all Goods delivered pursuant to such outstanding purchase orders. Troscriptions may, in its sole discretion, suspend or terminate Authorized Distributor’s ability to purchase or sell Practitioner-Only Products, with or without terminating this Agreement, if Authorized Distributor fails to maintain a Verified Practitioner, does not provide required proof of licensure or affiliation, or fails to satisfy any re-verification requested by Troscriptions. Upon request, Authorized Distributor shall promptly provide documentation reasonably evidencing the current status of each Verified Practitioner. Troscriptions may, but is not required to, provide Authorized Distributor a short cure period for administrative deficiencies at its sole discretion.
16. Option to Repurchase and Product Recalls. Within 10 days after the termination of this Agreement, Authorized Distributor shall submit to Troscriptions a written schedule reflecting all Goods then owned by Authorized Distributor or in the Authorized Distributor’s possession. Upon notice within 10 days following its receipt of such schedule from Authorized Distributor, Troscriptions shall have the right, but not the obligation, to buy back all or a portion of such Goods, free of all liens, claims or encumbrances, at a price equal to the lower of Authorized Distributor’s cost therefor and the then-prevailing price, pursuant to the following procedures. Authorized Distributor shall promptly deliver, at Troscriptions reasonable expense, the repurchased Goods in their original packaging (unopened and undamaged) to Troscriptions designated carrier for delivery to Troscriptions. In the event of any product recall initiated by Troscriptions, a regulatory authority, or required by applicable law: (a) Troscriptions shall promptly notify Authorized Distributor in writing of such recall; (b) Authorized Distributor shall immediately cease distribution of the affected Goods and cooperate fully with Troscriptions in conducting the recall; (c) Authorized Distributor shall promptly notify its customers and coordinate the return of recalled Goods according to Troscriptions’ instructions; (d) Troscriptions shall bear all reasonable direct costs and expenses of any recall unless such recall is primarily due to Authorized Distributor’s acts or omissions, in which case Authorized Distributor shall bear such costs; and (e) Troscriptions shall either replace the recalled Goods with conforming Goods or provide a full refund to Authorized Distributor for the recalled Goods and any related shipping costs. Troscriptions has the right to set off or recoup any liability it owes to Authorized Distributor under this Section 16 against any amount owed by Authorized Distributor or liability for which Authorized Distributor is liable to Troscriptions, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
17. Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of Troscriptions, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Troscriptions to Authorized Distributor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Troscriptions in writing. Upon Troscriptions request, Authorized Distributor shall promptly return all documents and other materials received from Troscriptions. Troscriptions shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain through no fault of Authorized Distributor; (b) known to Authorized Distributor at the time of disclosure as evidenced by written records; or (c) rightfully obtained by Authorized Distributor on a non-confidential basis from a third party who is not bound by confidentiality obligations to Troscriptions.
19. Force Majeure. Troscriptions shall not be liable or responsible to Authorized Distributor, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Troscriptions including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. Indemnification. Subject to the terms and conditions of this Agreement, Authorized Distributor shall indemnify, hold harmless, and defend Troscriptions and its parent, officers, directors, managers, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Troscriptions arising out of or occurring in connection with: (a) Authorized Distributor’s acts or omissions as a reseller of the Goods, including breach of this Agreement; (b) Authorized Distributor’s advertising or representations that warrant performance of Goods beyond that provided by Troscriptions written warranty or based upon Authorized Distributor’s business or trade practices; (c) any failure by Authorized Distributor or its personnel to comply with any applicable laws; or (d) allegations that Authorized Distributor breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement.
21. Assignment. Authorized Distributor shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Troscriptions. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Authorized Distributor of any of its obligations under this Agreement.
22. Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than the Indemnified Party under Section 20.
23. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
24. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the state courts of the State of Delaware in each case located in the County of Sussex and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
25. Notices. All notices, requests and other communications under this Agreement must be in writing and addressed to the other party at its e-mail address set forth below (or to such other e-mail address that the receiving party may designate from time to time in accordance with this Section 25): Notice to
Troscriptions: Attention: Boomer Anderson – retailers@troscriptions.com. Notice to Authorized Distributor: To the email address set forth on the first page of this Agreement.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. Survival. Sections of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, Sections 10, 12, 13, 14, 16, 18, 20, 22, 24, 25, 26, 27, 28, 29, 30, 31 and any other provisions which by their nature should survive termination.
29. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Authorized Distributor’s rights under Sections 8 and 10 are its exclusive remedies for the events specified therein.
30. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
31. No Franchise or Business Opportunity Agreement. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be deemed or construed as creating any partnership, joint venture or other form of joint enterprise, agency relationship, franchise, or business opportunity between the parties, employment or fiduciary relationship between the parties. Neither party shall, by virtue of this Agreement, have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Subject to the terms and conditions of this Agreement, including without limitation the requirements regarding marketing, promotion, and sales channels, Authorized Distributor has the discretion to determine Authorized Distributor’s methods of operation, Authorized Distributor’s accounting practices, the types and amounts of insurance Authorized Distributor carries (provided such insurance meets the minimum requirements set forth herein), Authorized Distributor’s personnel practices, and Authorized Distributor’s service areas and methods. The relationship created hereby between the parties is solely that of seller and reseller. If any provision of this Agreement is deemed to create a franchise relationship between the parties, or if Authorized Distributor takes any action to claim or establish such a relationship, then Troscriptions may immediately terminate this Agreement and seek all available remedies at law or in equity.
32. Electronic Signatures. The parties agree that this Agreement and any amendments thereto may be executed and delivered by electronic means, including through Docusign or any other electronic signature platform. Each party agrees that electronically signed documents, including those signed via Docusign, shall be deemed to have the same legal effect as a physically signed document.