Wholesale Terms & Conditions
VRS AUTHORIZED RESELLER TERMS AND CONDITIONS
These Veterinarian Recommended Solutions (“VRS”) Authorized Reseller Terms and Conditions form an agreement (this "Agreement") between VRS, and the reseller party identified on the signature page hereto ("Reseller").
In order to assure continued effective promotion of Manufacture’s products and to protect against contamination and dilution of Manufacture’s products, and for other good and valid business reasons, it is the policy of VRS that: (1) Reseller may not sell VRS’ products to any other Reseller, re-seller, diverter, distributor, redistributor or wholesaler; (2) Reseller may not knowingly sell VRS’ products to any party intending to resell VRS’ products; (3) Reseller is authorized only to sell VRS’ products directly to end-user consumers on the terms and conditions contained in this Agreement; and (4) Reseller may not sell VRS’ products in bulk.
By signing this Agreement, Reseller acknowledges and agrees to abide by the foregoing policy and agrees to the additional terms and conditions contained herein.
1. Agreement to Purchase and Sell the Products.
a. Sale. Reseller shall sell those products that are identified in Schedule 1, as VRS may amend in accordance with Section 1(a) (the "Products") to Reseller at the Prices and on the terms and conditions set out in this Agreement.
b. Availability/Changes in Products. VRS may, in its sole discretion: (i) remove Products from Schedule 1 without Notice to Reseller; (ii) add to the Products on Schedule 1 without Notice to Reseller; and (iii) without Notice to Reseller, make changes to any Products (including formulas, ingredients, and packaging), in each case, without obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications.
c. Prices. Reseller shall purchase the Goods from VRS at the prices (the "Prices") set forth in VRS' price list in effect at the time that VRS accepts the related Purchase Order. The price list as of the Effective Date is set forth on Schedule 1. VRS may update the price list at any time without Notice to Reseller. All Prices are exclusive of all shipping and handling costs, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Reseller under this Agreement. Reseller is responsible for all such charges, costs, and taxes.
d. Manner of Resale. Reseller shall sell the Products only as set forth herein. Sales in violation of this Agreement are strictly prohibited and may result in VRS' immediate termination of Reseller’s account, in addition to other remedies. Products sold to unauthorized persons or through unauthorized channels, including unauthorized websites, shall not be eligible for certain promotions, services, and benefits, including, unless prohibited by law, coverage under VRS' Limited Warranty. Reseller hereby agrees that:
- Reseller shall sell Products solely to end users of the Products. Reseller shall not sell to anyone a quantity of the Products greater than that generally purchased by an individual for personal use.
- Reseller shall not sell, ship, or invoice Products to customers outside of the United States or to anyone Reseller knows or has reason to know intends to ship the Products outside of the United States without the prior written consent of VRS.
- Reseller shall not sell the Products to any third-party customer who intends to sell the Products.
- Reseller shall not use VRS -branded Trademarks for Search Engine Optimization (SEO) purposes. Reseller shall not bid on VRS-branded Trademarks or other similar keywords to increase traffic to or otherwise promise its website.
- Reseller is expressly prohibited from reselling the Products to or on Amazon.com, via Amazon Vendor Central, Amazon Vendor Express, Fulfillment by Amazon (FBA), Fulfillment by Merchant (FBM), VRS Fulfilled Prime (SFP), FBA Onsite, or in any other manner which currently exists or may hereafter may be developed on the Amazon sales platform or on Walmart.com, Jet.com, Rakuten.com, Buy.com, eBay or any other third-party ecommerce marketplace (“Third Party Marketplaces”).
- Reseller understands and acknowledges that VRS expressly disclaims any and all warranties as to Products which are sold via unauthorized Resellers. Sales to or via Amazon.com and/or Third-Party Marketplaces in violation of this Agreement will render Reseller as an unauthorized Reseller, thereby voiding any and all Product warranties as well as VRS’ product return policies.
e. Restrict Sales. VRS reserves the right to fully investigate all suspected violations of this Agreement. VRS reserves the right to refuse to sell VRS’ products to any party determined by VRS to have violated this Agreement and to take such further action, legal or otherwise, as VRS deems necessary and appropriate.
f. Limitations on Advertising and Promotion as a Dietary Supplement. Reseller shall comply with all laws of the FDA and FTC concerning the label, labeling, advertising, promotion, and sale of the Products. The Products shall not be labeled, advertised, promoted, or sold as a “drug” as that term is defined by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(g). The Products are not intended for use in the diagnosis, treatment, cure or prevention of any disease or health-related condition.
g. MAP Policy. Reseller may sell the Products at any price, subject to the minimum advertised price limitations and MAP Policy set forth in Schedule 2 (the "MAP Policy"). In order to promote the development of a market for the Products while protecting and maintaining the image and integrity of the Products and related brands, Reseller agrees to comply with the MAP Policy. VRS may update the MAP Policy at any time by providing an updated Schedule 2 to Reseller, and such MAP Policy shall take effect immediately upon the earlier of the date of the notice or the later effective date set forth in such notice, if any.
2. Orders Procedure.
a. Purchase Orders. Reseller shall issue all Purchase Orders in written form via facsimile, email, or US mail, and cause all Purchase Orders to contain the Purchase Order Transaction Terms. By placing a Purchase Order, Reseller makes an offer to purchase Products under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms.
b. Purchase Order Transaction Terms. Reseller shall specify the following information (collectively, the "Purchase Order Transaction Terms") in each Purchase Order: (i) a list of Products to be purchased, Product Name; (ii) quantities ordered, which such amount shall not be less than the minimum quantities amount required per Purchase Order for particular Products, as further set forth on Schedule 1; and (iii) the delivery address where the Products are to be shipped (the "Delivery Point").
c. Payment Terms. Reseller shall pay in full at the time of purchase for all Products via valid credit or debit card (or other payment methods authorized in advanced by VRS) before VRS will accept or ship any Purchase Order. By submitting payment information, Reseller authorizes VRS to charge the selected payment method for the Products and other services, charges, shipping costs, taxes, fees, and other applicable costs ordered in connection with the Purchase Order. By submitting such information, Reseller grants to VRS the right to provide such information to third parties for purposes of facilitating the completion of orders and other transactions initiated by Reseller or on its behalf. Verification of information may be required prior to the acknowledgment or completion of any order. In the event legal action is necessary to collect on balances due, Reseller agree to reimburse VRS and its third-party payment system and affiliates for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. Reseller understands that third-party payment systems may hold and store such bank card or payment information to facilitate payment and deposit, damage reimbursement, and for other liability purposes. Credit and debit card payments are subject to the approval of the card issuer, and VRS will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Reseller is responsible for any credit card chargeback or similar fees for refused or rejected payments.
d. VRS' Right to Accept or Reject Purchase Orders. VRS may, in its sole discretion, accept or reject any Purchase Order. VRS may accept any Purchase Order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering the Products, whichever occurs first. No Purchase Order is binding on VRS unless accepted by VRS as provided in this Agreement.
e. Cancellation of Purchase Orders. With the exception of Reseller's right under Section 3(c) to cancel a Purchase Order for late delivery, Reseller has no right to cancel or amend any Purchase Order submitted by it. VRS may, without liability or penalty, cancel any Purchase Order placed by Reseller and accepted by VRS, in whole or in part: (i) if VRS discontinues its sale of Products or reduces or allocates its inventory of Products; or (ii) if VRS determines that Reseller is in violation of its payment obligations under or has breached or is in breach of this Agreement.
f. Terms of Agreement Prevail Over Reseller's Purchase Order. This Agreement is expressly limited to the terms of this Agreement and the Purchase Order Transaction Terms contained in the applicable Purchase Order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Reseller's general terms and conditions contained in any Purchase Order or other document issued by Reseller. Except regarding the Purchase Order Transaction Terms, any variations made to the terms and conditions of this Agreement by Reseller in any Purchase Order are void and have no effect.
3. Shipment And Delivery
a. Shipment. Unless expressly agreed to by the Parties in writing, VRS shall select the method of shipment of and the carrier for the Products, and Reseller shall bear the cost of shipment. VRS may, in its commercially reasonable discretion, without liability or penalty, make partial shipments of Products to Reseller. Each shipment constitutes a separate sale, and Reseller shall pay in full for such Purchase Order and the cost of shipment thereof prior to shipment, regardless of whether the shipment is in whole or partial fulfillment of a Purchase Order.
b. Delivery. Unless expressly agreed to by the Parties, VRS shall deliver the Products to the Delivery Point, using VRS' standard methods for packaging and shipping the Products.
c. Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that VRS shall use commercially reasonable efforts to ship Products within two (2) Business Days of its receipt of a Product Order and to cause the carrier to deliver all Products within seven (7) Business Days of shipment. Subject to Section 11(q), VRS is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. However, if VRS delays shipment of all or any Products for more than thirty (30) Business Days after the estimated delivery date (the "Delayed Shipment Date"), then Reseller may, as its sole remedy therefor, cancel the related Purchase Order regarding the delayed Products by giving VRS Notice within five (5) Business Days of the Delayed Shipment Date. Subject to Reseller's rights under this Section 3(c), no delay in the shipment or delivery of any Product relieves Reseller of its obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Products. For purposes of this Agreement, "Business Day" shall mean any day except Saturday, Sunday, or a federal holiday.
d. Inspection. "Nonconforming Goods" means any product received by Reseller from VRS under a Purchase Order that: (a) is not a Product; (b) does not conform to the Product Code, Product Name, or UPC Number listed in the applicable Purchase Order; or (c) on visual inspection, Reseller reasonably determines do not conform to the Limited Warranties. Reseller shall inspect Products received under this Agreement within thirty (30) days of receipt of the Products (the "Inspection Period") and either accept or, if any Products are Nonconforming Goods, reject these Products. Reseller will be deemed to have accepted the Products unless it Notifies VRS in writing or by calling the Customer Service Department at 855-876-7387 of any Nonconforming Goods during the Inspection Period and furnishes written evidence or other documentation as reasonably required by VRS. If Reseller timely Notifies VRS of any Nonconforming Goods, VRS shall determine, in its sole discretion, whether the Products are Nonconforming Goods.
e. Remedies for Nonconforming Goods. If VRS determines that the Products are Nonconforming Goods, it shall Notify Reseller and assign a Return Materials Authorization number (RMA). Reseller shall have ten (10) days to return the Nonconforming Goods, at VRS' expense and via the method of shipment of and the carrier selected by VRS, (the "Nonconforming Goods Return") to the location designated by the customer service team, along with the RMA number and any other materials and information reasonably requested by VRS. Upon its receipt of such Nonconforming Goods Return, VRS shall either, at Reseller's option: (i) replace the Nonconforming Goods with conforming Products, (ii) refund the Price for the Nonconforming Goods; Reseller; or (iii) issue a non- transferrable credit in the amount of the Price for the Nonconforming Goods for Reseller's use on future Purchase Orders. Reseller acknowledges and agrees that the remedies set out in this Section 3(e) are Reseller's exclusive remedy for the delivery of Nonconforming Goods.
f. Limited Right of Return. All sales of Products to Reseller under this Agreement are made on a one-way basis and Reseller has no right to return Products purchased under this Agreement unless VRS agrees, in its sole discretion, to accept such return. If Reseller desires to request to return a Product, it must promptly notify VRS in writing or by calling the Customer Service Department at Customer Service Department at 855-876-7387. If VRS agrees to accept such return of a Product that is not a Nonconforming Good (an "Authorized Return") Reseller must obtain a Return Materials Authorization number (RMA) from VRS and shall include such RMA number with the return of the Products. Authorized Returns must be shipped via USPS, UPS, or any similar carrier and must include tracking information. It is advisable that the Reseller obtain adequate insurance coverage as any losses incurred will be the responsibility of the Reseller. All costs associated with the Authorized Return will be the sole responsibility of the Reseller. Authorized Returns in full compliance with this Section and received by VRS within sixty (60) days from receipt of the Products will receive a refund in full or a credit towards future Product Orders in the amount of the Prices paid for such Products. Authorized Returns in full compliance with this Section and received by VRS between sixty (60) and one hundred twenty (120) days from receipt of the Products will receive a refund or a credit towards future Product Orders in the amount of the sixty percent (60%) of the Prices paid for such Products. No refunds or credits shall be given to Authorized Returns that are not received by VRS within one hundred twenty (120) days from receipt of the Products or that do not otherwise comply with the terms of this Section. Returns that do not comply with the above conditions shall be deemed to have waived their rights with regard to that return, and VRS, at its sole discretion, will destroy the return as having no value. Any Product that has been involved in the following will not be eligible for a refund or credit: a sacrifice; bankruptcy sales; salvage procedures; deterioration; exposure to heat, cold, water, smoke, fire or any other conditions that may cause deterioration.
g. Title and Risk of Loss. Title to Products shipped under any Purchase Order passes to Reseller on VRS' delivery of such Products to the carrier. Risk of loss to Products shipped under any Purchase Order passes to Reseller upon VRS' delivery of such Products to the carrier.
4. General Reseller Performance Obligations.
a. Marketing and Reselling Products. For purposes of this Agreement, "End User" means the final purchaser that (a) has acquired a Product from Reseller for (i) its own internal use and not for resale, remarketing, or distribution or (ii) incorporation into its own products and (b) is an individual located in the United States. Reseller shall, in good faith and at its own expense:
i. market, advertise, promote, and resell the Products to End Users consistent with good business practice, in each case using its commercially reasonable efforts to maximize the sales volume of the Products;
ii. only resell or offer to resell the Products that Reseller currently has in inventory or that have been ordered from VRS and which order has been accepted by VRS as available for delivery to Reseller, unless Reseller has received prior written authorization from VRS;
iii. develop and execute a marketing plan sufficient to fulfill its obligations under this Agreement;
iv. have sufficient knowledge of the industry and products competitive with each Product (including specifications, features and benefits) so as to be able to explain in detail to the End Users: (1) the differences between the Product and competing products; and (2) information on standard protocols and features of each Product;
v. observe all directions and instructions given to it by VRS in relation to the marketing, advertisement, and promotion of the Products to the extent that these marketing materials, advertisements, or promotions refer to the Products or otherwise use VRS' Trademarks;
vi. market, advertise, promote and resell Products and conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill, and reputation of VRS; and
vii. promptly Notify VRS of any complaint or adverse claim about any Product or its use of which Reseller becomes aware.
b. Product Recall. If any governmental entity or similar body issues a recall or takes similar action in connection with the Products, or if VRS determines that an event, incident, or circumstance has occurred which may require a recall or market withdrawal, VRS shall advise Reseller of the circumstances giving rise to such recall. VRS shall have the right to control the arrangement of any Product recall with respect to the reshipment, return, storage or disposal of recalled Products, the preparation and maintenance of relevant records and reports, and notification to any recipients or End Users. Reseller shall promptly notify VRS of any governmental, customer, consumer, Products about which Reseller becomes aware.
c. General Compliance With Laws. Reseller shall at all times comply with all Laws. Without limiting the generality of the foregoing, Reseller shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to its business relating to the exercise of its rights and the performance of its obligations under this Agreement. Reseller represents and warrants to VRS that it is in compliance with all Laws and any contract or agreement to which Reseller is a party or to which any of its material assets are bound, contracts applicable to this Agreement, the Products and the operation of its business.
d. Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Reseller nor agents, employees, or subcontractors engaged or appointed ("Personnel") by Reseller shall:
i. make any representations, warranties, guarantees, indemnities, similar claims, or other commitments: (i) actually, apparently, or ostensibly on behalf of VRS, or (ii) to any End User regarding the Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by VRS to Reseller;
ii. engage in any unfair, competitive, misleading, or deceptive practices respecting VRS, VRS' Trademarks or the Products, including any product disparagement or "bait- and-switch" practices;
iii. sell or offer to sell any of the Products or other VRS-branded products, other than the Products purchased by Reseller from VRS or from a distributor authorized by VRS to sell the same to Reseller; or
iv. sell, either directly or indirectly, or assign or transfer, any Products to any Person when Reseller knows or has reason to suspect that the Person may resell any or all of the Products to a third party, including any third-party reseller or distributor.
5. Intellectual Property Rights.
a. Definitions.
i. "Intellectual Property Rights" means all industrial and other 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; 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. "Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority.
iii. "Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).
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.
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. Ownership. Subject to the express rights and licenses granted by VRS in this Agreement, Reseller acknowledges and agrees that:
i. any and all VRS' Intellectual Property Rights are the sole and exclusive property of VRS or its licensors;
ii. Reseller shall not acquire any ownership interest in any of VRS' Intellectual Property Rights under this Agreement;
iii. any goodwill derived from the use by Reseller of VRS' Intellectual Property Rights inures to the benefit of VRS or its licensors, as the case may be;
iv. if Reseller acquires any Intellectual Property Rights in or relating to any product (including any Product) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to VRS or its licensors, as the case may be, without further action by either Party; and
i. Reseller shall use VRS' Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of VRS.
c. VRS' Trademark License Grant. This Agreement does not grant either Party the right to use the other Party's or their Affiliates' Trademarks except as set out under this Section 5(c). Subject to the terms and conditions of this Agreement, VRS hereby grants to Reseller a non-exclusive, non- transferable, and non-sublicensable license to use VRS' Trademarks in the Territory during the Term solely on or in connection with the promotion, advertising, and resale of the Products in accordance with the terms and conditions of this Agreement. Reseller will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with regard to the Products when requested by VRS. Other than the express licenses granted by this Agreement, VRS grants no right or license to Reseller, by implication, estoppel, or otherwise, to the Products or any Intellectual Property Rights of VRS.
d. Prohibited Acts. Reseller shall not:
i. take any action that may interfere with any of VRS' rights in or to VRS' Intellectual Property Rights, including VRS' ownership or exercise thereof;
ii. challenge any right, title, or interest of VRS in or to VRS' Intellectual Property Rights;
iii. make any claim or take any action adverse to VRS' ownership of VRS' Intellectual Property Rights;
iv. register or apply for registrations, anywhere in the world, for VRS' Trademarks or any other Trademark that is similar to VRS' Trademarks or that incorporates VRS' Trademarks in whole or in confusingly similar part;
v. use any mark, anywhere, that is confusingly similar to VRS' Trademarks;
vi. engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Products) or any Trademark;
vii. misappropriate any of VRS' Trademarks for use as a domain name without prior written consent from VRS; and
viii. alter, obscure, or remove any of VRS' Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Products), marketing materials, or other materials that VRS may provide.
e. VRS’ Trademark Notices. Reseller shall ensure that all Products sold by Reseller and all related quotations, specifications, and descriptive literature, and all other materials carrying VRS' Trademark, are marked with the appropriate trademark notices in accordance with VRS' instructions.
f. No Continuing Rights. On expiration or earlier termination of this Agreement:
i. Reseller's rights under Section 5(c) cease immediately; and
ii. Reseller shall immediately cease all display, advertising, promotion, and use of all of VRS' 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 VRS' Trademarks or with any trademark, trade name, or product designation associated with VRS or any Product.
6. Term; Termination
a. Initial Term. The term of this Agreement commences on the Effective Date and continues for a period of twelve (12) months unless and until earlier terminated as provided under this Agreement or applicable law (the "Initial Term").
b. Renewal Term. On expiration of the Initial Term, this Agreement automatically renews for additional successive twelve (12) month terms unless and until either Party provides Notice of nonrenewal at least sixty (60) days' before the end of the then-current term, or unless and until earlier terminated as provided under this agreement or applicable Law (each a "Renewal Term" and together with the Initial Term, the "Term").
c. Termination. Either party may terminate this Agreement for no reason or any reason upon thirty (30) days’ prior written notice to the other party. VRS may terminate this Agreement or an applicable Purchase Order immediately if Reseller fails to cure a material breach of this Agreement within five (5) Business Days after notice of such breach. Immediately upon notice, VRS may suspend Reseller’s participation as a reseller for breach of this Agreement or may immediately terminate this Agreement if VRS determines that termination is necessary to comply with laws or to avoid liability or harm to its services, reputation, customers, or users. Termination is not an exclusive remedy, and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
d. Effect of Expiration or Termination. The expiration or earlier termination of this Agreement does not affect any rights or obligations that: (i) are to survive the expiration or earlier termination of this Agreement under Section 11(c); and were incurred by the Parties before the expiration or earlier termination; provided that all indebtedness of Reseller to VRS of any kind is immediately due and payable on the effective date of the Term's expiration or earlier termination without further notice to Reseller. Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Products to Reseller that are scheduled to be made after the effective date of termination, whether or not any orders for the Products had been accepted by VRS. On the expiration or earlier termination of this Agreement, Reseller shall promptly:
i. cease to represent itself as VRS' authorized reseller regarding the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Reseller is authorized by VRS to sell the Products;
ii. return to VRS or destroy, at VRS' option, all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on VRS' Confidential Information;
iii. permanently erase all of VRS' Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery backup systems, its information technology backup systems, or both. Reseller shall destroy any such copies on the normal expiration of its backup files; and
i. upon request of VRS, certify in writing to VRS that it has complied with the requirements of this Section 6(d).
7. Confidentiality
a. Protection of Confidential Information. From time to time during the Term, VRS (as "Disclosing Party") may disclose or make available to Reseller (as "Receiving Party") information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" constitutes "Confidential Information" hereunder. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence:
i. is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by Receiving Party or any of its Representatives;
ii. is or becomes available to Receiving Party on a non-confidential basis from a third- party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
iii. was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
iv. was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
v. must be disclosed under applicable Law.
b. Receiving Party shall from receipt of such Confidential Information:
i. protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
ii. not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
iii. not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
c. Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives. The provisions of this Section shall survive termination or expiration of this Agreement for any reason for a period of five (5) years after such termination or expiration.
8. Warranties Disclaimer; Non-reliance. (a) NEITHER VRS NOR ANY PERSON ON VRS' BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE (iii) TITLE; (iv) NON-INFRINGEMENT; OR (v) PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (b) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY VRS, OR ANY OTHER PERSON ON VRS’ BEHALF.
9. Indemnification. Subject to the terms and conditions of this Agreement, Reseller (as "Indemnifying Party") shall indemnify, hold harmless, and defend VRS and its parent, officers, directors, partners, 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 reasonable attorneys' fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, (collectively, "Losses"), arising out of or relating to any Claim of a third party:
a. relating to a breach or non-fulfillment of any representation, warranty, or covenant of this Agreement by Indemnifying Party or Indemnifying Party's Personnel;
b. alleging or relating to any negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
c. alleging or relating to any bodily injury, death of any Person or damage to real or tangible personal property caused by the acts or omissions of Indemnifying Party or its Personnel; or
d. relating to any failure by Indemnifying Party or its Personnel to comply with any applicable Laws.
10. LIMITATION OF LIABILITY
a. No Liability for Consequential or Indirect Damages. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT IS EITHER PARTY OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT THE BREACHING PARTY] WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. Maximum Liability for Damages. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EACH PARTY'S 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 VRS UNDER THIS AGREEMENT TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500,000, WHICHEVER IS LESS.
THE FOREGOING LIMITATIONS APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11. MISCELLANEOUS
a. Further Assurances. On VRS' request, Reseller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
b. Entire Agreement. Subject to Section 2(f), this Agreement, including and together with related exhibits, schedules, attachments, and appendices, together with the Purchase Order Transaction Terms, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
c. Survival. Subject to the limitations and other provisions of this Agreement: Sections 5(d), 6(d), 7, 8, 9, 10, and 11 of this Agreement, as well as any other provision that, to give proper effect to its intent, should survive such expiration or termination, survive the expiration or earlier termination of this Agreement.
d. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice" and with the correlative meaning, "Notify") must be in writing and addressed to the other Party at its address set out on the signature page hereto (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
e. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
f. Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party
g. Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii)any act, omission, or course of dealing between the Parties.
h. 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 later 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 Reseller's rights under Sections 3(c)and 3(d) are Reseller's exclusive remedies for the events specified therein.
i. Equitable Remedies. Reseller acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Sections 1(d), 1(f), 1(g) and 5(d) and Article 7 would give rise to irreparable harm to VRS for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Reseller of any of these obligations, VRS shall, in addition to any and all other rights and remedies that may be available to VRS at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Reseller agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11(i).
j. Assignment. Reseller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of VRS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. VRS may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of VRS' assets without the consent of Reseller.
k. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
l. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
m. Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Delaware without regard to the conflict of laws provisions thereof.
n. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all contemplated transactions, in any forum other than the U.S. District Court of Delaware or, if this court does not have subject matter jurisdiction, the courts of the State of Delaware. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the U.S. District Court of Delaware. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
o. Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby.
p. 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, if the party sending the facsimile, email, or other means of electronic transmission has received express confirmation that the recipient party received the Agreement (not merely an electronic facsimile confirmation or automatic email reply).
q. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Reseller to make payments to VRS hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
This Agreement may be executed and delivered by electronic means and such execution shall have the same legal effect as a handwritten signature. The parties agree that electronic records of this Agreement and any electronic signatures shall be treated as original, fully enforceable documents. By signing below, the undersigned acknowledges and agrees to the terms and conditions outlined in this Agreement. No countersignature is required for this Agreement to be binding on the undersigned.
Schedule 1 to VRS Authorized Reseller Terms and Conditions
| Product Code | Product Name | Manufacturer | Minimum Advertised Price |
|---|---|---|---|
| COBBF | TruBenefits Omega (Beef) | VRCB169 | $61.97 |
| COBHP | TruBenefits Omega (Hypo) | VRCU169 | $61.97 |
| COBCB | TruBenefits Omega Capsules | VRCS120 | $61.97 |
| COBSM | TruBenefits Omega Small Pet | VRCSD067 | $48.97 |
| COBCG | TruBenefits Omega Cognitive | VRCO067 | $56.97 |
| EBSS | TruBenefits EndoBlend Small Dog | ENDOUSM50 | $62.97 |
| EBLG | TruBenefits EndoBlend Large Dog | ENDOLRG30 | $93.97 |
| CVTBD | TruBenefits Cardio Dog | CTBCHEW30 | $45.97 |
| CUTTB | TruBenefits Cutaneo | VRCTB060 | $43.97 |
| ETBTB | TruBenefits Entero | VRET120 | $64.97 |
| HTBTB | TruBenefits Hepato | VRHTB060 | $61.97 |
| OTBTB | TruBenefits Osteo | VROTB090 | $54.97 |
| FLFEL | Flo Cat | FLOV090 | $49.97 |
| FLCAN | Flo Dog | FLOCHEW30 | $35.97 |
| GECHW | Gland-Ease | GECCHEW30 | $29.97 |
| GELGCHW | Gland-Ease Large Dog | GELGCHW45 | $57.97 |
| IMFEL | Immuno-5 | IM5PWD90 | $45.97 |
| TQCHW | Tranquilium | TQCCHW30 | $30.97 |
Schedule 2 to VRS Authorized Reseller Terms and Conditions
Minimum Advertised Price (MAP) and Reseller Policy
Last updated: February 10, 2025
As an innovator in veterinarian products, Veterinary Recommended Solutions® (“VRS”) continues to deliver the highest quality products to consumers while continuing to invest in educating them on the importance of pet health. VRS recognizes the critical importance resellers play in consumer’s ability to purchase our products. To establish confidence with our reseller partners, VRS has established this Minimum Advertised Price and Reseller Policy (this "Policy") applicable to the minimum price that Resellers may advertise for certain VRS products. This Policy applies to all U.S. resellers of VRS products (each, a "Reseller"). This Policy is unilateral, non-negotiable and will not be altered for any Reseller.
MAP Price Schedule
The minimum advertised price ("MAP") of certain VRS products (the "MAP Products") are listed in Exhibit A. This Policy applies to all advertisements of MAP Products by a Reseller in any and all media, including, but not necessarily limited to, flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, mail order catalogs, internet or similar electronic media, television, radio, and public signage and applies to all forms of advertising, including internet advertising on any website including any online or internet ads, campaigns or coupons with respect to the sale of MAP Products as well as sponsored links, websites operated by, affiliated with, and/or linked to a Reseller’s website(s).
In no event may a Reseller make any statements or other indications on its website that indicates or implies that a lower price for a MAP Product may be found at the online checkout stage.
Pricing listed on an internet site is considered an “advertised price” and must adhere to this Policy. The MAP applies only to advertised prices and does not apply to the price at which the products are actually sold.
It shall not be a violation of this Policy to advertise in general that a Reseller has “the lowest prices” or will match or beat its competitors’ prices, or to use similar phrases; so long as the Reseller does not include any advertised price below MAP and otherwise complies with this Policy. This Policy does not apply to other activities that a Reseller may use to promote MAP Products (i.e. free shipping, member bonus awards, gift cards or loyalty programs).
Intentional and/or repeated failure to abide by this Policy will result in termination of our business relationship with the violating Reseller. VRS does not intend to do business with Resellers who compromise the perceived value of VRS and its products.
VRS may monitor the advertised price of resellers either directly or via the use of third-party agencies. Third party agencies retained by VRS may engage in monitoring of any advertisements.
VRS reserves the right, at its sole discretion, to offer temporary promotional pricing below the established Minimum Advertised Price (MAP) during limited-time events, including but not limited to national holidays, seasonal promotions, or other brand-designated marketing campaigns. Such promotional pricing may be extended to authorized resellers and wholesale partners for the duration of the promotional period, as communicated by the Brand Owner in advance. Participation in these promotional events does not constitute a permanent change to the MAP Policy, and all standard MAP requirements shall resume immediately following the conclusion of the promotional period.
Reseller Policy
Under this Policy, Resellers may not resell through third party online marketplaces such as Amazon, eBay or Walmart.com. Resellers may sell directly to their patients and customers, whether in person, by telephone or fax order, or through a practice website maintained by Reseller, subject in all respects to the terms and conditions of the Reseller Agreement between VRS and such Reseller.
Reseller shall not use VRS-branded Trademarks for Search Engine Optimization (SEO) purposes. Reseller shall not bid on VRS-branded Trademarks or other similar keywords to increase traffic to or otherwise promote its website. VRS branded Trademarks include but are not limited to:
VRS reserves the right at any time to modify, suspend, or discontinue this Policy in whole or in part or designate promotional periods during which the terms of this Policy change or designate periods of time during which this Policy is not applicable. Resellers will be notified of any updates to this Policy. If a Reseller has any questions regarding this Policy, they should contact partner@vrshealth.com or call 855-876-7387.