ULTIMA HEALTH PRODUCTS, INC. AUTHORIZED RESELLER POLICY
Effective Date: August 31, 2023
This Ultima Health Products, Inc. Authorized Reseller Policy (“Reseller Policy”) is issued by Ultima Health Products, Inc. (“Ultima”) and applies to Authorized Resellers of Ultima Replenisher products (“Product(s)”) in the United States of America. By purchasing Products from Ultima for retail sale, you (“Reseller”) agree to adhere to the following terms. This Reseller Policy supplements any then-current Reseller agreement between you and Ultima. Until such status is otherwise revoked by Ultima, in Ultima’s sole and absolute discretion, Reseller shall be considered an “Authorized Reseller” hereunder. Ultima may review Reseller’s activities for compliance with this Reseller Policy and Reseller agrees to fully cooperate with any such investigation, including, but not limited to, permitting inspection of Reseller’s facilities and records related to the sale of the Products.
- Authorized Customers. Reseller is authorized only to sell Products to End Users. An “End User” is a purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to any third party. Reseller shall not sell or transfer Products to any person or entity Reseller knows or has reason to know intends to resell the Products. Reseller shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use. Reseller shall not sell, ship, invoice, or promote the Products outside the United States of America without Ultima’s prior written consent.
- Online Sales. Reseller understands and agrees that Reseller is authorized to offer for sale and sell Ultima Products ONLY with prior and explicit authorization from Ultima through Permissible Public Websites in accordance with the terms herein. A “Permissible Public Website” is a website or mobile application that:
- (i) is operated by Reseller in Reseller’s legal name or registered fictitious name.
- (ii) conspicuously states Reseller’s legal name or registered fictitious name, mailing address, telephone number, and email address;
- (iii) does not give the appearance that it is operated by Ultima or any third party; and
- (iv) is operated in compliance with the terms and conditions set forth in the Online Sales Guidelines, attached hereto as Exhibit A, as Ultima may amend from time to time.
Reseller shall not offer for sale or sell Products on or through any website, online marketplace (including, but not limited to, Amazon, eBay, Walmart Marketplace, or Target Marketplace), mobile application, or other online forum other than a Permissible Public Website without the prior and explicit written consent of Ultima, which is granted solely by Ultima. Ultima reserves the right to terminate, at any time and in its sole discretion, its approval for Reseller to market and sell Products on the Permissible Public Websites, and Reseller must cease all such marketing and sales on the Permissible Public Websites immediately upon notice of such termination. The terms of this Reseller Policy supersede any prior agreement between Ultima and Reseller regarding the sale of the Products online.
- Sales Practices. Reseller shall conduct its business in a reasonable and ethical manner at all times and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time. Reseller shall not make any warranties or representations concerning the Products except as expressly authorized by Ultima. Reseller shall comply with all applicable laws, rules, regulations, and policies (a) applicable to Reseller’s business or (b) related to the marketing and sale of the Products. Reseller shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Ultima or the Products.
- Product Care, Customer Service, and Other Quality Controls.
- Reseller shall fully comply with all instructions provided by Ultima from time to time regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels. Reseller shall exercise due care in storing and handing the Products and Reseller shall store Products in a well ventilated, cool, dry place, away from direct sunlight.
- Reseller shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled Products or the bundling of Products), and other alterations to Products or their packaging are not permitted. Reseller shall not remove, translate, or modify the contents of any label or literature on or 2 accompanying the Products. Reseller shall not tamper with, deface, or otherwise alter any serial number, UPC code, lot code, or other identifying information on Products or their packaging.
- Reseller shall not sell or advertise any Product that has been returned opened or repackaged.
- Promptly upon receipt of the Products, Reseller shall inspect the Products and their packaging for damage, defect, broken seals, evidence of tampering, or other nonconformance (a “Defect”). If any Defect is identified, Reseller must not offer the Product for sale and must promptly report the Defect to Ultima at email@example.com.
- Reseller shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from its inventory. Reseller shall not sell any Products that are expired or within 60 days of expiration. Reseller shall destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Ultima.
- Reseller shall be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable warranty, guarantee, or return policy. Reseller shall ensure that its employees or representatives responsible for selling or providing customer service relating to the Products review and/or complete, as applicable, all Product education and training materials provided by Ultima. Reseller must be available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly. Reseller and Reseller’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Ultima Reseller agrees to cooperate fully with Ultima in any investigation or evaluation of such matters.
- Reseller shall cooperate with Ultima with respect to any Product tracking systems that may be implemented from time to time.
- Reseller shall cooperate with Ultima with respect to any Product recall or other consumer safety information dissemination efforts.
- Reseller shall report to Ultima any customer complaint or adverse claim regarding the Products of which it becomes aware. Reseller shall assist Ultima in investigating any such complaints or adverse claims.
- Reseller shall cooperate with Ultima in the investigation and resolution of any quality or customer service issues related to Reseller’s sale of the Products, including disclosing information regarding Product sources, shipment, and handling.
- Reseller shall not remove or destroy any copyright notices, trademarks or other proprietary markings on the Products, documentation, or other materials related to the Products. Removing, translating, or modifying the contents of any label or literature accompanying the Products is prohibited. Reseller shall not advertise, market, display, or demonstrate non-Ultima products together with the Products in a manner that would create the impression that the non-Ultima products are made by, endorsed by, or associated with Ultima.
- Intellectual Property Reseller acknowledges and agrees that Ultima owns all proprietary rights in and to the Ultima and Ultima Replenisher brands, names, logos, trademarks, service marks, trade dress, copyrights, patents, and other intellectual property related to the Products (the “Ultima IP”). Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Ultima IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Reseller’s status as an Authorized Reseller. All goodwill arising from Reseller’s use of the Ultima IP shall inure solely to the benefit of Ultima. Reseller’s use of the Ultima IP shall be in accordance with any guidelines that may be provided by Ultima from time to time and must be commercially reasonable as to the size, placement, and other manners of use. Ultima reserves the right to review and approve, in its sole discretion, Reseller’s use or intended use of the Ultima IP at any time, without limitation. Reseller shall not create, register, or use any domain name or any mobile application that contains any Ultima product name or trademark, nor a misspelling or confusingly similar variation of any Ultima product name or trademark
- Term and Termination. This Reseller Policy shall continue for a period of one (1) year (the “Initial Term”) and any Renewal Terms, as defined below, unless sooner terminated in accordance with this section. The Reseller Policy shall renew automatically for additional one (1) year terms (“Renewal Term”) unless Ultima elects not to renew by giving at least ninety (90) days' written notice prior to the end of the Initial Term or an applicable Renewal Term. Ultima reserves the right, in its sole discretion, to terminate this Reseller Policy at any time, without cause and for any reason upon thirty (30) days’ prior written notice to Reseller. If Reseller violates this Reseller Policy, Ultima reserves the right to immediately terminate Reseller’s status as an Authorized Reseller with written or electronic notice. Upon termination of a Reseller’s status as an Authorized Reseller, Reseller shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Reseller is an Authorized Reseller of Ultima Products or has any affiliation whatsoever with Ultima; and (iii) using all Ultima IP.
- Modification. Ultima reserves the right to update, amend, or modify this Reseller Policy at any time. Unless otherwise provided, such amendments will take effect immediately, and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the Ultima IP, or use of any other information or materials provided by Ultima to Reseller will be deemed Reseller’s acceptance of the amendments.
- Confidentiality. This Reseller Policy, and its attachments, if any, constitute confidential, proprietary information of Ultima and shall not be used for any purpose other than the authorized advertising and sale of the Products nor disclosed to any third party without the prior written consent of Ultima.
- Indemnification. Reseller shall indemnify, defend, and hold harmless Ultima and its officers, directors, 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 Reseller Policy and the cost of pursuing any insurance providers, (collectively, “Losses”), arising out of or resulting from any claim of a third party arising out of or occurring in connection with Reseller’s breach of the terms of this Reseller Policy, or Reseller’s negligence, willful misconduct, or breach of this Reseller Policy. Reseller shall not enter into any settlement without Ultima's prior written consent
- Insurance: Throughout the Term, Reseller shall maintain commercial general liability insurance and all other insurances which may be required by law.
- LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL ULTIMA OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS RESELLER POLICY, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT ULTIMA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Independent Contractor. Nothing contained herein shall be deemed or construed to create any partnership or joint venture between Ultima and Reseller. All activities by Reseller under the terms of this Reseller Policy shall be carried on by Reseller as an independent contractor and not as an employee of Ultima. Under no circumstances shall any employee of Reseller be deemed or construed to be an employee of Ultima.
- Choice of Law. This Reseller Policy is governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or related to this Reseller Policy or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey in each case located in the city of Newark and County of Essex, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Reseller may not assign any of its rights or delegate any of its obligations under this Reseller Policy to another party without the prior written consent of Ultima. Any purported assignment or delegation in violation of this section shall be null and void. Any such consent by Ultima does not relieve Reseller of any obligations hereunder including, but not limited to, its obligations to indemnify. This Agreement shall inure to the benefit of Ultima and Reseller and to their respective permitted successors, assigns or affiliates. In the event of a transfer of ownership (by sale, merger, etc.) by Reseller, Ultima shall be given sixty (60) days' advance notice of such transfer or sale and, upon receipt of said notice, shall have, in its sole discretion, the right to transfer to another Reseller or terminate this Agreement immediately, all without penalty.
- THIS RESELLER POLICY CONTAINS VERY IMPORTANT INFORMATION REGARDING RESELLER’S RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO RESELLER. BY SELLING THE PRODUCTS, RESELLER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS RESELLER POLICY.
ULTIMA HEALTH PRODUCTS, INC. ONLINE SALES GUIDELINES
Reseller’s approval to sell Ultima Products on Permissible Public Websites is conditioned on adherence to the following terms and conditions:
1. The Permissible Public Websites must not give the appearance that they are operated by Ultima or any third party.
2. Anonymous sales are prohibited. Reseller’s full legal name or registered fictitious name, mailing address, email address, and telephone contact must be stated conspicuously on the Permissible Public Websites and must be included with any shipment of Products from the Permissible Public Websites or in an order confirmation email sent at the time of purchase.
3. At Ultima’s request, Reseller will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Permissible Public Websites.
4. The Permissible Public Websites shall have a mechanism for receiving customer feedback and Reseller shall use reasonable efforts to address all customer feedback and inquiries received in a timely manner. Reseller agrees to provide copies of any information related to customer feedback (including any responses to customers) to Ultima for review upon request. Reseller agrees to cooperate with Ultima in the investigation of any negative online review associated with Reseller’s sale of the Products and to use reasonable efforts to resolve any such reviews. Reseller shall maintain all records related to customer feedback for a period of one year following the creation or submission of such a record, to the extent legally permitted. Nothing in this paragraph shall be construed to require Reseller to disclose identifying information about its customers to Ultima.
5. The Permissible Public Websites shall be in compliance with all applicable privacy, accessibility, and data security laws, regulations, and industry standards.
6. Reseller shall be responsible for all fulfillment to its customers who order Products through Permissible Public Websites, any applicable taxes associated with such purchases of Products, and any returns of Products.
7. Unless separately authorized by Ultima in writing, Reseller shall not use any third-party fulfillment service to store inventory or fulfill orders for the Products. Other than a drop-shipping arrangement with Ultima, under no circumstances shall Reseller fulfill orders in any way that results in the shipped Product coming from stock other than Reseller’s.
8. In marketing the Products on the Permissible Public Websites, Reseller shall only use images of Products either supplied by or authorized by Ultima and shall keep all Product images and descriptions up to date. Reseller shall not advertise Products not carried in Reseller’s inventory.
9. Retail pricing is in compliance with Ultima’s MAP policy which shall be provided to Reseller when explicit authorization is granted by Ultima in accordance with Section 2 of the Reseller Policy. Ultima reserves the right to make amendments to the MAP policy from time to time.