Wholesale & Partner Terms and Conditions

Rev. 11/1/2022

These Terms and Conditions may be updated by Healthy Gut, LLC  at any time without notice. Placement of an order is deemed acceptance of the Terms and Conditions posted when the order is placed. 

Terms and Conditions for Wholesale Accounts

1. DEFINITIONS

1.1 “Wholesaler” means an entity or organization that purchases wholesale products and resells them at retail prices to their clients and/or patients.

1.2 “Confidential Information” means all confidential and proprietary documents and information regarding financial and marketing data, projections, models, contacts, research, product plans, products, services, customers, markets, software, developments, inventions, formulas, processes, designs, drawings, engineering, and hardware configuration information, which are not otherwise included within the definition of Trade Secrets.

Confidential Information includes but is not limited to, any nonpublic information regarding the Products, prices, and any nonpublic lists or compilations of customers, prospective customers, or business opportunities.

1.3 “Customer” means a customer or prospective customer of Wholesaler who is the ultimate end user of the Products and any of Wholesaler’s resellers.

1.4 “Products” means products offered by HealthyGut using our online purchase portal as may be amended from time to time (collectively, “Order Forms”).

1.5 “Proposition 65” refers to the State of California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code § 25249.5-25249.14, and the implementing regulations, Cal. Code Regs. Tit. 27 § 25102 et. seq.

1.6 “Proprietary Information” means, collectively, the Confidential Information and the Trade Secrets.

1.7 “Territory” means the United States of America. This Agreement does not automatically permit Wholesaler to sell the Products outside the USA, regardless of whether the Products are shipped to Wholesaler within the USA. Permission must be granted by Healthy Gut, LLC is required for sales outside the USA.

1.8 “Trademarks” means the now existing or hereafter adopted or created trademarks, trade dress, logos, slogans, designs and distinctive advertising of Healthy Gut, LLC applicable to the brand and Products which are approved by Healthy Gut, LLC for use by Healthy Gut, LLC wholesalers.

1.9 “Trade Secrets” means information related to the business of the disclosing party which (a) derives economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts by the disclosing party to maintain its secrecy that are reasonable under the circumstances.

1.10 “Wholesaler” means the person or entity identified in this Wholesaler Agreement.

2. APPOINTMENT AS a Healthy Gut, LLC WHOLESALER

2.1 Appointment. Subject to the terms and conditions herein, Wholesaler is appointed as an independent, non-exclusive Healthy Gut, LLC wholesaler to distribute the Products to Customers solely within the permitted Territory, and Wholesaler accepts such appointment. Wholesaler agrees to conduct its business as a Healthy Gut, LLC wholesaler in accordance with this Agreement and the policies applicable to Healthy Gut, LLC wholesalers as issued by Healthy Gut, LLC from time to time, including but not limited to the Advertising and Reprint Policies attached hereto as Appendix A and the Wholesale Return Policy attached as Appendix B. Wholesaler may review the current policies applicable to Healthy Gut, LLC wholesalers at www.stg.healthygut.com/partners“Quick Links” and in Wholesaler’s online account under “Account Options”.

Wholesaler acknowledges that it has only a non-exclusive right to distribute the Products in the Territory, and Healthy Gut, LLC may in its sole discretion sell the Products to any other person or entity, including resellers and consumers in and outside the Territory, and authorize other resellers to sell the Products in competition with Wholesaler by any and all means and channels of distribution.

Wholesaler further acknowledges it has no rights whatsoever to (i) file any application to register, or otherwise claim ownership of, the Trademarks, and/or the Product names, anywhere in the world; or (ii) combine the Trademarks with any other marks, words, letters or symbols, or otherwise alter the Trademarks to form one or more new marks; or (iii) relabel, repackage, translate or overlay labels and packaging of the Products; or (iv) alter, modify, reverse engineer, or otherwise change or imitate the Products, their labels, or packaging in any way.

2.2 Independent Contractor. Wholesaler is an independent contractor, not an agent of Healthy Gut, LLC. Wholesaler will purchase the Products as per the terms set forth in Section 3 and resell them to Customers. Wholesaler has no authority to bind or contract in the name or for the account of Healthy Gut, LLC or to create any liability against Healthy Gut, LLC whatsoever.

2.3 OFAC Compliance. Wholesaler represents and warrants that it is not listed, nor is it owned or controlled by, or acting for or on behalf of any person or entity, on the list of Specialty Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the United States Department of the Treasury, or any other list of persons or entities with whom Healthy Gut, LLC is restricted from doing business (“OFAC List”). Wholesaler shall not sell the Products to any person or entity operated by or for the benefit of any person or entity that is on the OFAC List. Wholesaler shall provide documentary and other evidence of Wholesaler’s identity and ownership and customers as may be reasonably requested by Healthy Gut, LLC at any time to enable Healthy Gut, LLC to verify Wholesaler’s identity or to comply with this Section 2.3 regarding OFAC compliance.

2.4 FCPA Compliance. Wholesaler shall, and shall ensure that its affiliates and any third party contractors shall, comply with the United Stated Foreign Corrupt Practices Act (including as it may be amended) (the FCPA), and any analogous laws or regulations existing in any other country or region in the Territory, in connection with its performance under this Agreement. Neither Party will make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, officials of international public organizations, candidates for public office, or representatives of other businesses or persons acting on behalf of any of the foregoing, that would constitute violation of any law, rule or regulation.

2.5 Unfair Competition. Wholesaler agrees that it will not engage on its own behalf or on behalf of others in the development of competing products during the term hereof and any renewals or extensions or within two (2) years after the termination or expiration of this Agreement. Wholesaler agrees never to use, or knowingly allow others to use, any Healthy Gut, LLC Product in support of the development of a competing product.

2.6 Healthy Gut, LLC Reserved Rights. Healthy Gut, LLC reserves the right, in its sole discretion, from time to time, without notice, to modify or discontinue the Products; Product specifications; the prices charged for, discounts, and payment and other terms extended with respect to the Products; and any Healthy Gut, LLC trademark. Healthy Gut, LLC shall have the right to allocate sales, limit quantities or cancel orders of selected Products among its customers in its sole discretion, without liability to Wholesaler. Healthy Gut, LLC shall have the right to publicize Wholesaler as a Healthy Gut, LLC Wholesaler. Healthy Gut, LLC shall have the right at any time to suspend its performance hereunder during the continuation of any failure by Wholesaler to comply with any of its obligations under this Agreement or Healthy Gut, LLC policies.

2.7 Amazon, Ebay, Walmart Platforms. Healthy Gut, LLC does not allow Wholesalers to sell Products to/through Amazon.com, Ebay, or Walmart or any other online retail outlets, without express written approval. Wholesalers are required to inform their Customers, other than end-consumers purchasing from retail outlets, of the restrictions set forth in this Section and are responsible for ensuring that any sub-distribution of Products to other entities for resale does not occur at or on the Amazon platform. Failure of Wholesaler to comply with the foregoing will, at Healthy Gut, LLC’s discretion and without waiver of Healthy Gut, LLC’s right to pursue other remedies for breach, result in the suspension or termination of Wholesaler’s license to use or display Healthy Gut, LLC’s Trademarks, reduction of Wholesaler’s discount, and/or closure of Wholesaler’s account.

2.8 Resellers. Wholesaler shall not  appoint resellers in the Territory to distribute the Products. 

3. PRODUCT PURCHASE, MARKETING AND DISTRIBUTION BY WHOLESALER

3.1 Purchase of the Products; Terms of Sale.

3.1.1 Wholesaler shall pay for any Products at the applicable prices set forth in the most current Order Forms. Payment shall be due when the order for Products is placed (i.e., when the order is received by Healthy Gut, LLC) unless otherwise agreed by Healthy Gut, LLC in writing. Wholesaler’s obligation to pay for the Products is not contingent upon receipt by Wholesaler of payment from any Customer. Healthy Gut, LLC shall have the right to disapprove any proposed sale due to the identity or location of the proposed Customer (including without limitation those proposed sales to Customers who pose competitive or intellectual property protection concerns and Customers located outside the Territory or in countries where export control laws prohibit such sale).

3.1.2 All orders are subject to acceptance by Healthy Gut, LLC. A written or verbal acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Healthy Gut, LLC may, in its sole discretion, without liability or penalty, make partial shipments of Products to Wholesaler. Each shipment constitutes a separate sale, and Wholesaler shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of an order. Wholesaler shall have the option to accept and pay for, or reject in writing to Healthy Gut, LLC, delivery of any quantity that is in excess of the quantity specified, or delivery of Products that were not ordered. Any time quoted for delivery is an estimate only; provided, however, that Healthy Gut, LLC shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Healthy Gut, LLC is not liable for any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery.

3.1.3 Each sale of the Products by Healthy Gut, LLC to Wholesaler shall be governed solely by (a) this Agreement; (b) applicable Healthy Gut, LLC policies current at the time of sale; and (c) the prices and other terms set forth on the Order Forms, as in effect from time to time. No acknowledgement, confirmation, or purchase order or other communication submitted by Wholesaler shall be effective to vary the terms described herein, unless the same is separately signed by an officer of Healthy Gut, LLC and designated as an amendment to this Agreement.

3.1.4 The prices on the Order Forms (and any other Product price lists) are net of any governmental taxes, duties, import or export fees, excise taxes, or other similar impositions now or hereafter applied on the production, sale, transportation, licensing or use of the Products, including sales and use taxes and value added taxes, all of which (other than taxes based on the net income of Healthy Gut, LLC) shall be borne by Wholesaler in addition to the price of the Products.

3.1.5 Unless expressly agreed to by the parties in writing, Healthy Gut, LLC shall select the method of shipment of and the carrier for the Products. The Products shall be shipped F.O.B. Healthy Gut, LLC’s facility; Wholesaler is responsible for all shipping, insurance and related charges, and all risk of damage or loss to the Products shall pass to Wholesaler upon tender by Healthy Gut, LLC to the common carrier. Title to the Products remains with Healthy Gut, LLC and shall not pass to Wholesaler until Wholesaler has paid Healthy Gut, LLC in full for all amounts owed with respect to the Products.

3.1.6 Wholesaler shall not distribute the Products to any person or entity who, to the knowledge of Wholesaler, is or has branch sales outlets located outside the Territory or intends to sell the Products outside the Territory, without the prior written consent of Healthy Gut, LLC. If Wholesaler receives inquiries from any Customer outside or having sales outlets outside the Territory, Wholesaler shall attempt to sell the Products only to those Customers or branches within the Territory and shall simultaneously advise Healthy Gut, LLC of such inquiries and the addresses of the Customer or branches outside the Territory.

3.1.7 Due to license restrictions, some Products may not be sold in certain territories and trade channels. Therefore, some Products advertised may not be available for Wholesaler to purchase. Other Products may be available for purchase by Wholesaler but may not be resold in certain territories, trade channels, or at all. Upon notice of such license restrictions provided by Healthy Gut, LLC, Wholesaler is subject to the license restrictions on its sales of those Products to its Customers. License restrictions are indicated on the Order Form and on the Product pages on www.Healthy Gut, LLC.com.

3.1.8 Wholesaler must comply with Proposition 65 requirements if Wholesaler sells Products on the Healthy Gut, LLC Proposition 65 Product List (the “List”) to purchasers in the state of California, even if Wholesaler is located outside California. Proposition 65 requires that specific warnings must be provided on the Product label, and online for all internet sales of the Products on the List to California customers, prior to the purchase of the product. Wholesaler is responsible for its resellers’ compliance with Proposition 65. Wholesaler can access the current List by logging in to its account on www.Healthy Gut, LLC.com or contacting Healthy Gut, LLC.

3.1.9 Wholesaler is strictly prohibited from relabeling, repackaging, translating or overlaying labels and packaging of the Products, or altering, modifying, reverse engineering, or otherwise changing the Products, their labels, or packaging in any way. Wholesaler shall distribute and sell the Products in the packaging with the labeling as received from Healthy Gut, LLC. Any exceptions to this Section 3.1.9 must be in writing and signed by the authorized representative of each party.

3.2 Intellectual Property.

3.2.1 Healthy Gut, LLC hereby grants to Wholesaler a non-exclusive, royalty-free license to use the Trademarks solely in connection with the advertisement, promotion, sale and distribution of the Products by Wholesaler, in the Territory, under this Agreement and during the term hereof. Wholesaler shall not use the Trademarks in any manner likely to confuse, mislead or deceive the public, or to be injurious or inimical to the best interests of Healthy Gut, LLC. Wholesaler is expressly prohibited from using the “Healthy Gut, LLC” trademark or any confusingly similar mark in connection with the operation of a retail or wholesale outlet, in connection with a domain name, or in connection with its trade name (i.e. company name) without express written authorization from Healthy Gut, LLC in the form of an Addendum to this Domestic Wholesaler Agreement.

3.2.2 Intellectual Property Representations and Disclaimers. Healthy Gut, LLC has the right, power and authority to grant the license set forth herein. Healthy Gut, LLC does not warrant or represent that the Trademarks have been registered with the United States Patent and Trademark Office or similar office of any other country, or that the use of the Trademarks will not infringe the trademark rights of others. Healthy Gut, LLC MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR DOES Healthy Gut, LLC ASSUME ANY OBLIGATIONS WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY ARISING AS A RESULT OF THE ACTIVITIES OF WHOLESALER OR ITS AGENTS OR CUSTOMERS UNDER THIS AGREEMENT.

3.2.3 Healthy Gut, LLC shall have the sole right to register all Trademarks or confusingly similar marks and Wholesaler shall not attempt to register or otherwise claim ownership of any Trademarks or confusingly similar marks. Any application or registration Wholesaler may obtain in violation hereof shall be owned by Healthy Gut, LLC, and Wholesaler shall immediately convey, transfer, and assign all right, title, and interest in and to the Trademarks to Healthy Gut, LLC or its designee (“Assignments”). Wholesaler shall execute such documents and do such acts as may be necessary to perfect, evidence, establish, maintain and protect such Assignments and to protect Healthy Gut, LLC’s and its designee’s and Affiliates’ rights. All such unauthorized applications and registrations and subsequent Assignments shall be at Wholesaler’s sole cost and expense. Pursuant to Section 3.3.1 below, Wholesaler shall be liable for attorneys’ fees incurred by Healthy Gut, LLC in the enforcement of this provision.

3.2.4 Healthy Gut, LLC retains all rights in and to the Trademarks not specifically granted herein.

3.2.5 All use of the Trademarks by Wholesaler, whether or not authorized, shall inure to the benefit of Healthy Gut, LLC.

3.2.6 Notice of Infringement. Wholesaler agrees to notify Healthy Gut, LLC promptly of (a) any third party claim that the Trademarks are infringing in the Territory, or (b) any infringement or unauthorized use of the any of the Trademarks in the Territory of which it becomes aware.

3.2.7 Right to Protect Trademarks. Healthy Gut, LLC shall have the sole right to take action deemed necessary to protect the Trademarks. Such action may include, but is not limited to, assuming the defense of any lawsuit challenging or affecting the rights to the Trademarks, settling litigation, and/or instituting litigation to protect its rights to the Trademarks. Healthy Gut, LLC may, at its option, permit Wholesaler the right to prosecute or defend actions described in this Section 3.2.7. In the event of litigation, the prosecuting or defending party (whether Healthy Gut, LLC or Wholesaler) shall bear all costs, fees and expenses of legal proceedings and actions regarding infringement and shall be entitled to collect and retain all awards and damages recovered in settlement or other proceeds paid.

3.2.8 Duty to Cooperate. In any infringement lawsuit Healthy Gut, LLC and Wholesaler shall, at the request and expense of the litigating party, cooperate in all respects and, to the extent commercially reasonable, have their employees testify when requested and make available relevant records, papers, and information and to otherwise cooperate in a timely manner.

3.2.9 Wholesaler shall not (i) take any action that may interfere with any of Healthy Gut, LLC ‘s rights in or to the Trademarks or confusingly similar marks, including Healthy Gut, LLC’s ownership or exercise thereof; (ii) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any of the Trademarks; (iii) develop or use any trademarks other than the Trademarks in connection with the Products; (iv) misappropriate any of the Trademarks for use as a domain name without prior written consent from Healthy Gut, LLC; or (v) alter, obscure or remove any of the Trademarks or any other proprietary rights notices placed on the Products purchased under this Agreement, marketing materials or other materials that Healthy Gut, LLC may provide.

3.2.10 In addition to any termination rights set forth in Section 6, Healthy Gut, LLC shall have the right to immediately terminate the licenses granted in Section 3.2.1 if Healthy Gut, LLC determines, in its sole discretion, that Wholesaler’s continued use of any of the Trademarks of confusingly similar marks is contrary to the best interests of Healthy Gut, LLC or is likely to confuse, mislead or deceive the public.

3.3 Wholesaler Indemnity and Insurance.

3.3.1 As an independent contractor, Wholesaler is responsible for its own risks, liabilities, and claims arising from its own business operations. Accordingly, Wholesaler agrees to defend, indemnify and hold Healthy Gut, LLC and its Affiliates, and their agents, employees, officers and directors harmless from and against any and all claims, demands, liabilities, obligations, damages, costs, losses and expenses of every kind and nature whatsoever (“Claims”), including, without limitation, court costs and attorneys’ fees, arising out of (i) Wholesaler’s own activities, (ii) the negligent or willful acts or omissions of Wholesaler or its agents, employees or Customers, or (iii) the breach of this Agreement by Wholesaler, and regardless of whether such Claims may arise in contract or tort, from intentional or negligent conduct, under statute or regulation, in equity, at law or otherwise. The obligations set forth in this Section 3.3.1 shall survive the expiration or earlier termination of this Agreement.

3.3.2 Wholesaler represents and warrants that as of the Effective Date it maintains, and at all times while it is distributing the Products (and for the period thereafter during which any claim may be asserted related to such Products) it shall continue to maintain, a General Liability Insurance Policy containing limits of at least one million dollars per occurrence and two million dollars in the annual aggregate to protect Wholesaler and Healthy Gut, LLC and its Affiliates from the liabilities insured against thereunder, and which contains bodily injury, personal injury, products and completed operations, and advertising injury coverage, and a contractual liability endorsement. Healthy Gut, LLC and its Affiliates, and their agents, employees, officers and directors shall be named as additional insureds on the Policy. Upon request, Wholesaler shall promptly furnish to Healthy Gut, LLC a certificate of insurance and renewal certificates of insurance evidencing the foregoing coverages and limits. The insurance shall not be cancelled, reduced or otherwise changed without providing Healthy Gut, LLC with at least 10 days prior written notice.

3.4 Compliance. Wholesaler will comply with all applicable governmental laws, regulations and orders relating to its activities hereunder, including but not limited to the United States Dietary Supplement Health and Education Act of 1994 (DSHEA), the Federal Trade Commission Act, the Lanham Act and regulations promulgated pursuant thereto, Proposition 65, and reporting and licensure requirements, as applicable. Wholesaler shall not make claims that the Products are intended to diagnose, treat, cure, or prevent any disease. Wholesaler agrees that the foregoing obligation and each of the other obligations, representations and warranties set forth in this Section 3 are material to this Agreement.

3.5 Licensed Healthcare Providers. If Wholesaler is a licensed healthcare provider, Wholesaler acknowledges that the laws and regulations applicable to healthcare providers frequently change and vary and from state to state, and that Healthy Gut, LLC gives no representation or advice about federal, state, or local laws or regulations applicable to Wholesaler’s healthcare practice or profession in connection with the sale of the Products or otherwise. Healthy Gut, LLC encourages Wholesaler to check with its state licensing board and applicable governmental agencies regarding any and all laws related to its healthcare practice and the sale and recommendation of the Products, including whether any specific disclosures or disclaimers should be provided to patients prior to the sale of the Products.

4. PRODUCT WARRANTIES, DISCLAIMERS AND WARRANTY ADMINISTRATION

4.1 Warranties and Disclaimers.

4.1.2 With respect to its distribution of any of the Products, Wholesaler will give and make no other or different warranties or representations on behalf of Healthy Gut, LLC as to quality, merchantability, fitness for a particular use or purpose or any other features of the Products other than the warranty given by Healthy Gut, LLC to Wholesaler.

4.1.4 Healthy Gut, LLC shall not be liable for any claims, demands or actions arising out of, based on or related to this Agreement or the use of the products or any portion thereof, or any damages (whether direct, indirect, incidental, consequential, punitive or exemplary) resulting therefrom, except as expressly set forth in this Agreement. Wholesaler assumes all risks arising out of the use of the Products to the extent permitted under applicable law, including lost profits, lost savings, damages from physical injury to tangible property, personal injury or death. The remedies of Wholesaler for Product defects are Wholesaler’s exclusive remedies; provided that, if the exclusive remedies shall ever be deemed to have failed of their essential purpose, then Healthy Gut, LLC’s liability shall in no event exceed the amount paid by Wholesaler for the Products at issue.

4.2 Customer Claims Procedures. Healthy Gut, LLC will refer Customers to Wholesaler for resolution of any claims. Healthy Gut, LLC and Wholesaler agree to cooperate as reasonably requested in an investigation of any claim, and Wholesaler agrees promptly to furnish to Healthy Gut, LLC any information which Wholesaler may have concerning any claim. Healthy Gut, LLC, in its sole discretion, shall have the option to replace or refund to Wholesaler or the Customer any amounts paid for the Product at issue. In the event that Healthy Gut, LLC chooses to pay a refund to a Customer, Wholesaler agrees to refund to Healthy Gut, LLC the portion of the purchase price it received from the Customer. Wholesaler shall accept from Healthy Gut, LLC replacement Products to correct warranty problems and shall be responsible for delivering them to the Customer.

5. PROPRIETARY INFORMATION AND OTHER INTELLECTUAL PROPERTY

5.1 On the date that title to the Products passes to Wholesaler, Wholesaler shall acquire good and clear title from Healthy Gut, LLC to each unit of the Products purchased hereunder. However, Wholesaler acknowledges that any and all of the Trademarks, trade names, trade secrets, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Products shall be and remain the sole property of Healthy Gut, LLC and its Affiliates. Wholesaler agrees not to challenge the validity of Healthy Gut, LLC’s patents, trade secrets, trademarks, copyrights, registrations or applications therefor or other proprietary rights in the Products during the term of this Agreement, any renewals or extensions thereof, and after any termination or expiration thereof.

5.2 Wholesaler shall protect the Proprietary Information of Healthy Gut, LLC in the same manner and to the same extent as it protects similar information of its own (but must in any event use reasonable care for the protection of the Proprietary Information), and it must not use, reproduce, distribute or disclose the disclosing party’s Proprietary Information to anyone other than its employees, agents or independent contractors who have a specific need to know such information and have been informed and obligated in writing to observe the confidentiality obligations imposed by this Agreement. Wholesaler shall maintain the Confidential Information in secret during the term of this Agreement, any renewals or extensions thereof, and for a period of five (5) years after any termination or expiration of this Agreement. Wholesaler shall maintain the Trade Secrets in secret during the term of this Agreement, any renewals or extensions thereof, and after any termination or expiration thereof, and shall continue to maintain the Trade Secrets in secret for so long as the information is considered by Healthy Gut, LLC to be a Trade Secret and so long as a court of law of no further appeal has not determined that the trade secret status of the information has been lost.

5.3 Wholesaler acknowledges that a breach of Wholesaler’s obligations under this Section 5 may cause irreparable damage to Healthy Gut, LLC, which may not be compensable in monetary damages, and that Healthy Gut, LLC shall be entitled, as a matter of right, to seek and obtain injunctive relief to prevent any such breach without the need for posting a bond.

6. QUOTA, TERM AND TERMINATION

6.1 Quota. In order to be classified as a Wholesaler, Wholesaler must purchase a minimum based on the projected Tier, (Appendix C commencing on the Effective Date).  If the Wholesaler fails to purchase the required quarterly number towards the annual projection, Wholesaler may purchase to true up.  Otherwise, Healthy Gut, LLC may reduce the discount level or terminate this Agreement.

6.2 Term. The term of this Agreement shall commence on the Effective Date and may be terminated with or without cause by Healthy Gut, LLC or Wholesaler at any time.

6.3 Effect of Termination. Upon termination of this Agreement, all rights and licenses granted to Wholesaler under this Agreement shall immediately terminate except as expressly provided in this Section 6.3. Further, Wholesaler shall desist from holding itself out as an authorized Wholesaler of Healthy Gut, LLC and shall cease all distribution of the Products and return to Healthy Gut, LLC all Healthy Gut, LLC literature; provided, however, that Wholesaler shall have the right to distribute its remaining inventory of the Products in accordance with and subject to this Agreement for a maximum of ninety (90) days after the effective date of termination, after which all Product remaining in inventory must by destroyed by Wholesaler, unless Healthy Gut, LLC shall at any time exercise its option by written notice to Wholesaler to repurchase Wholesaler’s remaining inventory at the price(s) paid by Wholesaler to Healthy Gut, LLC, in which event, Healthy Gut, LLC will pay any shipping fees associated with returning the Products. The termination of this Agreement shall not, unless otherwise provided in the termination notice, terminate or be deemed to terminate any other agreement then in effect between the parties.

6.4 Liability upon Termination. Neither party hereto shall be liable to the other party for damages, losses, costs or expenses of any kind or character whatsoever arising from the termination of this Agreement, whether such damages, losses, costs or expenses arise from the loss of prospective sales or expenses incurred or investments made in connection with the establishment, development or maintenance of Wholesaler’s business, or any other reason whatsoever; provided, however, that such termination shall not affect any claim, demand, liability or right of either party arising pursuant to this Agreement prior to the termination, or arising after termination in connection with sale by Wholesaler of its remaining inventory of the Products.span

6.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL Healthy Gut, LLC BE LIABLE UNDER ANY THEORY TO WHOLESALER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE OR Healthy Gut, LLC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

7. MISCELLANEOUS PROVISIONS

7.1 Entire Agreement; Amendments; Waiver. This Agreement, together with any Exhibits and Appendices, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior oral or written agreements. This Agreement may not be amended or modified, nor any part waived, except by a further written agreement signed by the parties hereto. No failure or delay on the part of Healthy Gut, LLC in exercising any right or remedy hereunder will operate as a waiver thereof; nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy.

7.2 Assignment. Wholesaler shall not assign its rights or delegate its performance hereunder without the prior written consent of Healthy Gut, LLC, and any attempt to do so without such consent shall be void and of no power or effect. Healthy Gut, LLC may assign this Agreement or any portion of it without the consent of Wholesaler.

7.3 Notice. All notices and communications required or permitted pursuant to this Agreement shall be in writing and shall be delivered via certified mail or nationally recognized courier service to the other party at the address shown below (or at such other address as may be specified by a notice given to the other party in accordance with this Section 7.3) and shall be effective when actually delivered to such address.

7.4 Severability. If any one or more of the provisions in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the same shall not invalidate or otherwise affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

7.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and of the United States of America without reference to any conflicts of law principles; the parties submit themselves to the jurisdiction of the federal and state courts located in Broward County, Florida, which shall have exclusive jurisdiction of any disputes arising hereunder, and the parties waive any objection to venue therein.

7.6 Force Majeure. Healthy Gut, LLC will not be liable for delays in delivery or the failure to perform its obligations under this Agreement, if such failure is caused by the occurrence of any force majeure beyond its reasonable control, including without limitation product allocations, material shortages, labor disputes, strikes and other industrial disturbances, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, government orders, fires, floods, severe weather conditions, accidents, computer interruptions, acts of terrorism, epidemics, quarantine restrictions, riots, insurrections or war. Healthy Gut, LLC’s time for delivery or performance will be extended by the period of such delay or Healthy Gut, LLC may, at its option, allocate production and delivery among its customers, or cancel or reduce any order or remaining part thereof, in its sole discretion without liability to Wholesaler.

7.7 Headings. Section headings herein are for convenience only and shall in no case be considered in construing this Agreement.

7.8 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The person signing below on behalf of Wholesaler warrants that he or she has full authority to execute this Agreement and to bind Wholesaler and that all actions on behalf of Wholesaler required to authorize execution and performance of this Agreement have been duly taken.

Appendix A

Healthy Gut, LLC® Advertising and Reprint Policies

Healthy Gut, LLC brand nutritional supplements are evidence-based, cutting-edge, premium- quality products. Healthy Gut, LLC Vitamin and Supplement Wholesalers, Inc. (the “Company”) is committed to maintaining the Healthy Gut, LLC brand value, integrity and exceptional customer satisfaction developed over more than 30 years in the industry. The Company has established these Advertising and Reprint Policies for Healthy Gut, LLC products (the “Products”).

For purposes of these Policies, “Resellers” include all authorized distributors and wholesalers (“Authorized Resellers”), as well as third party customers (i.e., Authorized Resellers’ customers) that resell Healthy Gut, LLC products to consumers.

Revised Effective May 2, 2019:

1. Advertising Healthy Gut, LLC Products

• Resellers must feature Healthy Gut, LLC brand Products as premium-quality products by (i) maintaining up-to-date customer educational materials about the Products and (ii) for catalog and online Resellers, displaying a telephone number which customers may call to obtain Product information from knowledgeable staff.
• Ad copy and website materials must not misrepresent the brand or source of the Products and must not be misleading to customers (for example, Reseller’s print materials and websites may not try to impersonate or mirror the likeness or overall appearance of Healthy Gut, LLC’s magazine or website at www.Healthy Gut, LLC.com).
• Online, Pay-Per-Click (“PPC”) ads for Healthy Gut, LLC branded terms (“Branded Terms”) may never appear above www.Healthy Gut, LLC.com ads and should always rank below #1. A list of these Branded Terms may be accessed by logging in to your online Healthy Gut, LLC account. The list is updated from time to time and Authorized Resellers should review it prior to placing new PPC advertising. The list includes use of the Healthy Gut, LLC name and a few other variations, and trademarked products.
• URLs, including subdomains, must not impersonate or contain, in whole or in part, the “Healthy Gut, LLC” trademark and must not contain any of the Healthy Gut, LLC Branded Terms or their misspellings. For example, sites such as www.Healthy Gut, LLC-japan.com, www.life-extension-products.net and http://Healthy Gut, LLC.tumblr.com would not be permitted. Branded Terms may not be used as part of Social Media or directory site listings. For example, the site listing www.digg.com/Healthy Gut, LLC would not be permitted. Any domain name registrations Wholesaler obtains in violation hereof shall be immediately transferred to Healthy Gut, LLC.
• Advertising by Resellers on Healthy Gut, LLC’s Social Media pages (including comments on the Healthy Gut, LLC blog, Facebook, Twitter, Instagram, or YouTube pages), including use of Facebook tags and similar devices to drive traffic from Healthy Gut, LLC sites to Reseller sites, is not permitted.
• Internet ad landing pages must comply with the requirements for Use of Healthy Gut, LLC Content.

Use of Healthy Gut, LLC Content

• Many Resellers like to use Healthy Gut, LLC publications, including Web site content such as text and images, (collectively, “Content”), Healthy Gut, LLC trademarks (collectively “Marks”), and Healthy Gut, LLC logos (collectively “Logos”), in their catalogs, newsletters and mailings, Web sites and blogs to help promote the sale of the products, and in general, the Company encourages this practice because it provides well-presented, accurate information to educate customers about the Healthy Gut, LLC brand and products.
• Healthy Gut, LLC Content is protected by copyright and trademark law. Use of Healthy Gut, LLC Content, Marks, and Logos must be approved by the Company in advance. The Company reserves the right to withhold or withdraw consent to any use of Healthy Gut, LLC Content, Marks or Logos at any time, and upon such notice the Reseller will promptly cease and desist the unauthorized use of the Content, Marks or Logos. If a Reseller fails to comply with this Advertising and Reprint Policy, the Reseller’s copyright and trademark licenses are automatically terminated.
• The following are requirements for all approved use of Healthy Gut, LLC Content:
  • The Content must be reproduced verbatim.
  • In print media, “Reprinted with permission of Healthy Gut, LLC®” must appear at the beginning or end of the Content.
  • Online, a link to the original Content on www.Healthy Gut, LLC.com must be displayed at the immediate top or bottom of the Content, and must appear above any medical references. The language for the link should read: “Reprinted with permission of Healthy Gut, LLC®.”
  • Online links within Content are not permitted, with the exception of a link to the original Content on www.Healthy Gut, LLC.com.
  • Use of “Daily News” articles is strictly prohibited due to syndication restrictions.

3. Compliance

• Resellers must comply with these Advertising and Reprint Policies, and all applicable governmental laws, regulations and orders relating to their activities hereunder, including but not limited to the federal Dietary Supplement Health and Education Act of 1994 (DSHEA), the Federal Trade Commission Act, the Lanham Act and regulations promulgated pursuant thereto, and similar state laws and regulations, reporting and licensure requirements, and export and import controls, if applicable. Resellers shall not make claims that the Products are intended to diagnose, treat, cure, or prevent any disease in violation of DSHEA.
• If it is determined by the Company that a Reseller has violated the terms of these Advertising and Reprint Policies, the Company may require all Resellers (not just the party which sold Products to the offending Reseller) to cease and desist all further sales to that offending Reseller. It is the responsibility of all Resellers of the Products to assist in the policing of these Advertising and Reprint Policies as to those persons to whom they, or other Resellers, sell the Products, and if a violation is discovered, to immediately contact the Company with the identity of the offending party (regardless of which Reseller may have actually sold the Product), as well as the facts and circumstances surrounding the alleged violation.
• These Advertising and Reprint Policies may be changed at any time without advance notice by the Company. You are responsible for complying with these Advertising and Reprint Policies as contained in the online Terms and Conditions of your Wholesale Agreement with the Company and for your easy reference, posted online at Your Account.
• The Company strongly believes in these Advertising and Reprint Policies and has made them a condition of advertising our Products. The Company reserves the right to revoke any Reseller’s authorization to sell Healthy Gut, LLC brand Products. Failure to comply with these Advertising and Reprint Policies may result in price restructuring, termination of sale and shipment of Products to you for the duration of the non-compliance, termination or your right to use Healthy Gut, LLC copyrighted materials and trademarks, and possible termination of your contract with the Company.

4. Company Contact

If you have questions about the Healthy Gut, LLC Advertising and Reprint Policies, please contact:

Shay Pausa 

COO 

Email: shay@stg.healthygut.com 

Phone:

Appendix B

Healthy Gut, LLC® Wholesale Return Policy

We will accept returns from our wholesale customers and issue a credit to your account for the following reasons only:

1) The product is damaged in shipping.

a. Damages must be reported within 48 hours of receipt of shipment.

b. A photo of the damaged product/shipment is required.

c. For a freight delivery, a signed Bill of Lading is required.

d. If pre-existing damage is confirmed after our investigation, we will replace the product or refund the purchase at our discretion.

We will NOT accept returns for the following reasons:

1) Products are not selling. 

2) Products in your inventory are about to expire or have expired.

3) Products are damaged while in your possession.

4) Products returned to you by your customer.

Appendix C 

Quota and Discount Tiers

Tier	Annual Volume	Quarterly minimum	Discount Level
1	36		25-30% depending on sku
2	144	36	35-40% depending on sku
3	300	75	41-45% depending on sku
4	732	183	46-50% depending on sku
Partner Portal	No annual requirements	NA	Depends on relationship
ProCourtesy	No annual requirements	NA	15%

PARTNER/REFERRAL LINKS TERMS AND CONDITIONS

Partner Agreement

This Partner Agreement (the “Agreement”) is dated as of the day you opt-in to the click-wrap “I agree” on the Partner Portal (“Effective Date”) between Healthy Gut (the “Brand”), Wooly Inc. doing business as Roster Technologies (“Roster”), and yourself (the “Partner”), an individual (each a “Party” and may be referred to collectively as “Parties”). 

The Brand and the Partner agree: 

1.  Nature of Relationship. You agree to act as an Partner for the Brand to promote products, services, recognize Roster as an administrator of the r Program. In exchange, you will receive product, discounts or other compensation as offered through campaigns. 
2. Relationship. The Brand engages the Partner as an Independent Contractor on a non-exclusive, non-employee basis to endorse and promote its services to a target audience through the Roster platform. The Parties shall have no authority to contractually bind the other or make decisions on the other Party’s behalf. As a Partner you are governed by the Terms of Service and Privacy Policies for the Brand and Roster. 
3. Term. This Agreement shall have an initial term of one year and automatically renew for additional one-year terms thereafter unless either party provides notice of its intention of nonrenewal. It may be terminated in writing any time by any Party with seven days written notice. 
4. Deliverables. The Partner will deliver the campaign content or posts on the agreed platforms according to the deliverables specified by the Brand via the Roster platform. The Services must abide by the rules of the relevant social media platforms, and may be subject to the Brand’s acceptance and approval. 
5. Rights You Grant Us. By posting or submitting content, including all types of media content or tasks, via the Roster Partner Portal, directly to the Brand or to any social media platform, you grant the Brand a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, transferable license to access, use, copy, publicly perform, digitally perform, publicly display or otherwise exhibit and distribute such content, and to transmit, sell, modify, create derivative works from and/or to incorporate such contributed content into other works in any form, medium or technology, commercial or otherwise, without further compensation to you or any third party. The Brand may, but is not obligated, to use your content. 
6. Representations and Warranties. The Partner represents and warrants to the Brand and Roster that (i) the Ambassador has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or the Ambassador’s undertaking this relationship with the Brand or Roster; (ii) all content (save and except any materials supplied by the Brand) will be the original work and creation of the Ambassador and will not infringe the rights (including without limitation, any intellectual property rights) of any third party; (iii) you will not contribute content that reveals any trade secret, unless you own or have permission to reveal it; (iv) that content will not contain libelous, defamatory, obscene, offensive, hateful, pornographic, abusive, harassing, or threatening material or references. 
7. Content Requirements and FTC Guidelines. The Partner is responsible to verify that campaign materials and content meet campaign requirements and FTC guidelines. Content should not reference any competitor product. When posting, Partner must clearly disclose any “material connection” with the Brand, including the fact any consideration provided for a particular campaign. The above disclosure should be clear and prominent and made in close proximity to any statements that Partner makes about the Brand’s products or services. Partner’s statements should always reflect factual, honest, and truthful opinions and actual experiences. You are solely responsible for any content submitted and may be held legally liable for damages caused to any third party. 
8. Campaign Details & Collateral. The Brand shall provide the necessary content and briefing materials to enable the Ambassador to perform the services. Unless otherwise specified, the Ambassador shall be solely responsible for all costs associated with creating content. 
9. Compensation. In full consideration of the Partner’s performance, his / her obligations and the rights granted herein, the Partner shall receive product, services or other compensation as detailed in the campaign. The Partner acknowledges that the agreed upon compensation represents the entire compensation with respect to this agreement and the Brand and/or Roster shall have no other obligation for any other compensation, expenses or costs incurred by the Partner. 
10. Confidentiality. The Ambassador agrees to hold in strictest confidence, and not to use or disclose without written authorization, any Confidential Information received from the Brand and/or Roster. “Confidential Information” means any proprietary information (including third party information), technical data, trade secrets or know-how, including but not limited to: illustrations, product plans, products, services, customer or Ambassador names, and other business information disclosed by the Brand either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. 
11. Independent Contractor. The Ambassador acknowledges and agrees that you are acting as an independent contractor. The Ambassador shall be responsible for the manner and form by which they perform this contract, and the payment of all costs and taxes associated with it. 
12. Cancellation. Any Party may terminate this agreement upon breach of the other Parties with or without cause upon seven days prior written notice. In addition to any right or remedy available to the Brand or Roster under this agreement or applicable law, the Brand may instruct the Ambassador to return products or collateral, cease all promotional activities, or make clarifying statements, and the Ambassador shall immediately comply. The provisions relating to Termination, Indemnification and Rights You Grant Us of the Terms shall survive expiration or termination. 
13. Indemnification. The Ambassador agrees to indemnify, defend and hold harmless the Brand and Roster against any and all claims and losses arising out of or relating to the services performed by the Ambassador under this Agreement or the representations and warranties made pursuant to Section 6 hereof. Partner’s obligations shall survive termination, for any reason, of this Agreement. You shall promptly notify the Brand and/or Roster of any action against the Brand or Roster. 
14. Miscellaneous. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to its conflict of laws provisions; (ii) No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance; (iii) If one or more of the provisions in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing.