Updated November 01, 2023
FitJoy, INC a Delaware-incorporated company located at PO Box 3608 Austin, TX 78764 (“_FitJoy_”), is engaged in the business of manufacturing, marketing, and distributing functional foods and related products (collectively the “Products”).
The buyer is a specialty retailer whose primary business is the sale of functional food products through its brick-and-mortar and/or official online retail locations to its members (“Authorized Retailer”).
By indicating acceptance below, or by submitting a purchase order to firstname.lastname@example.org or its Authorized Distributor, as defined herein, Authorized Retailer agrees to be bound by these Terms and Conditions, which create a binding agreement between the parties (the “Agreement”). The sale of Products by FitJoy, its subsidiaries and affiliates, or FitJoy’s Authorized Distributor, to an Authorized Retailer are subject to the Terms and Conditions of this Agreement and may only be modified in a writing signed by authorized representatives of both FitJoy and Authorized Retailer.
Authorized Retailer’s Sale of Products.
- Authorized Retailer agrees that it shall purchase the Products solely from FitJoy or a distributor authorized by FitJoy to distribute its Products (“Authorized Distributor”), and shall market and sell the Products in accordance with the terms and conditions and subject to the limitations hereof.
Authorized Territory and Locations. Authorized Retailer is hereby authorized to distribute the Products only in the United States (the “Territory”) through Authorized Retailer’s brick and mortar and/or official online retail locations (collectively the “Authorized Retailer Locations”) to consumers located in and for use only in the Territory. Upon thirty (30) days written or email notice, FitJoy reserves the right to restrict the sale of certain Products on a prospective basis to specific States in the Territory, in which case, the foregoing definition of Territory shall be automatically amended to exclude such State with respect to such Products. Authorized Retailer specifically agrees that, it shall not market, advertise or sell the Products:
- through Amazon, Ebay, Jet.com, Buy.com, or similar e-commerce sites or to any third party who Authorized Retailer knows or reasonably believes will sell the Products through Amazon, Ebay, Jet.com, Buy.com or similar e-commerce sites;
- outside the Territory or to anyone who Authorized Retailer knows or reasonably believes will export or sell the Products outside the Territory; or
(c) to any third party that FitJoy has indicated in writing or email are unauthorized.
- Unauthorized Sales. FitJoy reserves the right at any time, to notify Authorized Retailer in writing or email to cease future sales to any specific customers and, in such event, this Agreement will be deemed amended to include such customer(s) in Section 1.2. In the event that Authorized Retailer knowingly sells the Products in any manner prohibited in Section 1.2 (each an “Unauthorized Sale”), such occurrence shall be a material breach of this Agreement and FitJoy shall have the right upon written or email notice to immediately terminate this Agreement. Further, Authorized Retailer acknowledges and agrees that an Unauthorized Sale in violation of Section 1.2 (a), (b) or (c) will cause FitJoy to incur substantial economic damages and losses in an amount that is difficult or impossible to quantify, and the parties agree that the liquidated damages listed herein represents a fair and reasonable estimate thereof. Accordingly, in addition to FitJoy’s right of immediate termination of this Agreement, in the event of an Unauthorized Sale, Authorized Retailer shall, upon demand, pay FitJoy liquidated damages as follows: (a) one hundred dollars ($100) for each unit of the Products sold in an Unauthorized Sale as set forth in Section 1.2(a) above; (b) two hundred fifty dollars ($250) for each unit of the Products sold in an Unauthorized Sale as set forth in Section 1.2(b) above; and (c) two hundred fifty dollars ($250) for each unit of the Products sold in an Unauthorized Sale as set forth in Section 1.2(c) above.
- Unilateral MAP Policy. Authorized Retailer acknowledges FitJoy’s unilateral Minimum Advertised Price Policy (“MAP Policy”) as set forth in EXHIBIT A and available for review on fitjoyfoods.com and as may be modified by FitJoy from time to time and deemed effective upon notice to Authorized Retailer.
- The parties acknowledge that Authorized Retailer’s appointment as an authorized retailer and all rights hereunder are non-exclusive, non-transferable nor assignable without the express written consent of FitJoy.
- Promotions. To promote fair competition for Authorized Retailers and maintain brand integrity, Authorized Retailer shall endeavour to limit a promotion of a particular product to two (2) units of such Product per customer per promotion.
Representations and Warranties
Authorized Retailer. In connection with the sale of the Products by Authorized Retailer hereunder, Authorized Retailer represents and warrants that:
- It shall solely purchase the Products for re-sale through FitJoy or an Authorized Distributor and no other party;
- It shall use commercially reasonable efforts to promote the sale of the Products;
- It shall not in any manner alter, modify or change the packaging or labelling on any of the Products including but not limited to altering or removing barcodes, lot numbers, expiration dates, or copyright, trademark or sell-by notices;
- It shall not in any manner alter, modify or tamper with the Products or directly or indirectly engage in the manufacture, sale or distribution of counterfeit versions of the Products;
- It shall maintain any standards set forth by FitJoy for the storage, handling and sale of the Products, but shall in no event store, handle or ship the Products in a manner which is inconsistent with current Good Manufacturing Practices;
- It shall comply with all applicable laws and regulations for the sale of the Products and it shall maintain any and all government approvals, certificates, licenses and permits required in connection thereto, if any;
- It shall use commercially reasonable efforts to conduct business in a manner that reflects favourably at all times on the Products and the good name, goodwill and reputation of the FitJoy;
- It shall avoid deceptive, misleading and unethical practices in connection with the sale of the Products;
- It shall not make any statements, representations, warranties or guarantees regarding the Products to consumers or to the trade including but not limited to the features, capabilities, efficacy of or expected results when taking the Products, unless such statements are provided to Authorized Retailer in writing by FitJoy. For the avoidance of doubt, the prohibition of this Section shall include any advertisements, point of purchase displays or similar materials.
- FitJoy warrants that all Products purchased from FitJoy, that are in original packaging (a) are of good quality, merchantable and fit and safe for consumer use; (b) comply with all applicable federal, and state laws and regulations; and (c) are free of any patent, trademark, or copyright infringement claims. This warranty shall apply to all purchases of Products from FitJoy and in the event of a conflict between this Agreement and any purchase order, invoice or other document relating to the sale of Products to Authorized Retailer, the terms of this Agreement shall control. This warranty does not extend to any Product that is modified, altered, or tampered by Authorized Retailer or any third party, or which is not handled or stored as directed by FitJoy.
- Warranty Policy. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.2 ABOVE, FITJOY MAKES NO WARRANTY TO AUTHORIZED RETAILER WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Authorized Retailer. In connection with the sale of the Products by Authorized Retailer hereunder, Authorized Retailer represents and warrants that:
Product List; Pricing; Shipping and Delivery; Publicity; Recalls and Returns.
- Product List. Neither FitJoy nor an Authorized Distributor shall be obligated to sell any specific Product to Authorized Retailer, which such decision shall be in the sole discretion of FitJoy or an Authorized Distributor and subject to availability.
- Pricing. The price of the Products, including but not limited to discounts, promotions and charge backs, will be determined in the sole discretion of FitJoy and shall be listed on the purchase order for the Products. Pricing with respect to the purchase of Products from an Authorized Distributor shall be upon the terms agreed upon between Authorized Retailer and Authorized Distributor.
- Shipping and Delivery. The Products will be shipped CIP, carriage and insurance paid (Incoterms 2010), with Authorized Retailer as beneficiary under the terms of this Agreement, and delivered to Authorized Retailer’s destination in the United States of America, such as their warehouse, retail location, or other location as designated on the applicable purchase order. For the avoidance of doubt, the title and insured risk of loss will pass to Authorized Retailer once the goods have been delivered to the carrier arranged by FitJoy, at FitJoy’s warehouse or other storage location. Authorized Retailer hereby expressly acknowledges and agrees that Section 2-510 of the Uniform Commercial Code shall not apply to this Agreement.
- Publicity: During the term of this Agreement, Authorized Retailer shall be permitted to promote, market or publicize that it is an Authorized Retailer of the Products in the Territory in the Authorized Retailer Locations. Upon expiration or termination of this Agreement, Authorized Retailer shall immediately cease holding itself out as an authorized retailer of FitJoy products, shall immediately remove all references related thereto in the Authorized Retailer Locations or in any other locations controlled by Authorized Retailer and for the avoidance of doubt, shall not in any way publicize that it was formerly an authorized retailer of the Products.
- Recall Notifications. In addition to complying with their standard procedures for product recalls, FitJoy agrees that in the event of a Product recall, all Product recall notifications regarding any Products purchased by Authorized Retailer shall be sent to Authorized Retailer in accordance with Section 13 as soon as reasonably practical. The recall notice shall indicate the anticipated classification of the recall (Class I, Class II or Class III), together with the lot or product codes as well as product description for each recalled item. The recall notification shall include specific instructions as to what actions FitJoy requires Authorized Retailer to perform. FitJoy shall reimburse or credit Authorized Retailer the actual out of pocket costs paid by Authorized Retailer for the recalled Products as well as any costs for shipping and/or destruction or disposal associated with the recall, that is done at FitJoy’s direction.
- Product Returns. In no event shall FitJoy be obligated to provide a credit, replacement, refund or otherwise accept any returns of the Product purchased by Authorized Retailer from any party other than FitJoy directly, and such credits, replacements, refunds or returns shall be made in FitJoy’s sole discretion. Products purchased by Authorized Retailer through an Authorized Distributor are subject to the Authorized Distributors product return policy.
- Payment Terms. Products purchased by Authorized Retailer from FitJoy shall be one hundred percent (100%) pre-paid before delivery, except that on a case by case and not precedential basis, FitJoy may, subject to credit check and approval provide net thirty (30) terms. In the event that FitJoy offers or agrees to payment terms different from one hundred percent (100%) pre-pay for a particular order during the term, Authorized Retailer acknowledges and agrees that such deviation shall only be for that particular order and shall not be applied to Authorized Retailer’s subsequent orders. In the event that FitJoy provides net thirty (30) terms, and payment is not received within thirty (30) days of an invoice, an interest charge shall be assessed on the outstanding balance owed in the amount of the lower of two percent (2%) per month or the maximum amount allowed by applicable law. In the event that FitJoy is successful in pursuing the collection of any payments owed hereunder, FitJoy shall be entitled to reimbursement of reasonable outside attorney’s fees and costs incurred in the collection of such amounts owed from Authorized Retailer which shall be paid within thirty (30) days of demand. Assessment of such interest shall not be deemed in lieu of or a waiver of any other right or remedy FitJoy may have hereunder or at law. Payment for the purchase of Products by Authorized Retailer from an Authorized Distributor shall be upon the terms agreed between the parties.
- Sales Reports. During the term of this Agreement, if requested by FitJoy, Authorized Retailer shall deliver sales reports to FitJoy, which shall include retail point of sale information and such other information as is requested by FitJoy in order to ensure compliance with this Agreement. Authorized Retailer shall keep good and accurate books and records with respect to the purchase and sale of the Products. FitJoy reserves the right to audit Authorized Retailer’s books and records, at any time, upon reasonable notice, to confirm the accuracy of Authorized Retailer’s sales reports. In the event Authorized Retailer fails to provide sales reports as required herein, in addition to any other rights or remedies which may be available to FitJoy, Authorized Retailer acknowledges and agrees that such failure shall make Authorized Retailer ineligible to participate in any program involving FitJoy’s contribution of promotional money (“PM” or “SPIFF”) or related marketing programs of FitJoy, shall commence on the date first set forth above and unless terminated earlier by FitJoy as otherwise permitted in this Agreement, shall continue for an initial term of one (1) year. Thereafter, the term shall continue for successive one (1) year terms unless either party provides written notice to the other at least thirty (30) days prior to the expiration of the then current term. Notwithstanding the foregoing, FitJoy may terminate this Agreement (a) at any time without cause on thirty (30) days advanced written notice, (b) if Authorized Retailer breaches any material provision of this Agreement which is capable of cure and the breach is not cured by Authorized Retailer within ten (10) days after Authorized Retailer’s receipt of notice of such breach, or (c) immediately, in the event that Authorized Retailer becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of creditors, or commits a material breach of this Agreement which is incapable of cure.
- Product Marketing/Coupling. During the term, Authorized Retailer agrees to provide reasonable marketing support for the Products. It is further acknowledged and agreed that Authorized Retailer shall not market or sell the Products coupled with another product, which if used together would be in violation of the Product’s suggested use, warnings or product labelling.
- Relationship of the Parties. The relationship of FitJoy and Authorized Retailer is that of vendor and vendee. Under no circumstances shall Authorized Retailer and its agents and employees be deemed employees, agents, or representatives of FitJoy. Neither party shall have any right to enter into any contract or commitment in the name of, or on behalf of, the other, or to bind the other in any respect whatsoever.
FitJoy’s Intellectual Property.
- The Product will be marketed and sold by Authorized Retailer solely under the trademarks, copyrights and other intellectual property belonging to FitJoy. Authorized Retailer will not and will not authorize any third party to alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any trademarks, logos, trade names or trading style of FitJoy) and other indications of origin that may be placed on the Products or other notices or labelling provided by FitJoy. Authorized Retailer acknowledges that FitJoy is the exclusive owner or a licensee of the trademarks, copyrights and other intellectual property related to the Products and Authorized Retailer has no right, title or interest whatsoever in the trademarks, copyrights or other intellectual property or any goodwill associated therewith and that all goodwill associated with the trademarks, copyrights and other intellectual property as and between FitJoy and the Authorized Retailer is owned by FitJoy. Furthermore, Authorized Retailer agrees not to represent in any manner that it has acquired any ownership rights in the trademarks, copyrights or other intellectual property of FitJoy or its Products. Authorized Retailer shall not challenge or encourage anyone to challenge FitJoy’s rights in the trademarks associated with the Products or attempt to file or register the same or similar trademarks as those owned by FitJoy anywhere in the world. Authorized Retailer further agrees that it will not misuse, misrepresent, or take any other actions, which will damage, derogate, detract or adversely affect FitJoy’s rights in the trademarks or other intellectual property associated with the trademarks. Authorized Retailer acknowledges that a breach of its obligations under this Section 9 will cause FitJoy irreparable damages which may not be compensable by monetary damages, and in the event of such breach, in addition to any other rights or remedies which FitJoy may have, FitJoy may seek and obtain emergency injunctive relief, without the necessity of posting bond (unless otherwise required by law).
- Authorized Retailer shall, during the term of this Agreement, have the right to use and display FitJoy’s trademarks and copyrighted material in the Territory solely in connection with the marketing, sale, advertisement and support of the Product in the Territory, in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by FitJoy, for no other purpose whatsoever.
- Authorized Retailer acknowledges and agrees that Authorized Retailer shall assist FitJoy in the protection of FitJoy’s intellectual property rights with respect to the Products, and shall immediately report to FitJoy any actual, potential or threatened infringements of the trademarks, copyrights or other intellectual property of FitJoy by a customer of Authorized Retailer or by any other third party, or any matter involving a customer of Authorized Retailer or any other third party which may give rise to any infringement or any imitation of Product of which Authorized Retailer is or may become aware. Authorized Retailer shall not initiate any protective action with respect to the trademarks or Product without prior written authorization of FitJoy.
Authorized Retailer’s Indemnification of FitJoy
- Authorized Retailer hereby agrees to indemnify, defend and hold harmless FitJoy and any of FitJoy’s parents, affiliates, subsidiaries and their members, managers, shareholders, officers, directors, agents, employees, successors and assigns (collectively, the “FitJoy Indemnitees”) from and against any and all claims, losses, demands, actions, judgments, liabilities, expenses and damages (including reasonable outside attorneys’ fees) arising out of or relating to any breach of any representation or warranty of Authorized Retailer contained herein or any other term or condition of this Agreement by Authorized Retailer.
- Any obligation of Authorized Retailer to indemnify FitJoy or any FitJoy Indemnitee shall not extend to any claims, losses, demands, actions, judgments, liabilities, expenses and damages (including FitJoy Indemnitees’ reasonable outside attorneys’ fees) that result solely from any FitJoy Indemnitee’s own acts of gross negligence, intentional tortious acts, misstatements of fact or misrepresentations regarding the Products.
- If any claim is asserted against a FitJoy Indemnitee for which it is entitled to indemnification hereunder, FitJoy shall notify the Authorized Retailer in writing with reasonable promptness and the Authorized Retailer shall thereafter takes all steps necessary to fulfil its indemnity obligations including but not limited to employing counsel which is reasonably acceptable to FitJoy. The FitJoy Indemnitee shall have the right to be kept fully informed of the progress of such defense. In connection therewith, FitJoy and any applicable FitJoy Indemnitee shall cooperate fully to make available to the Authorized Retailer all reasonably pertinent information under FitJoy’s or the applicable FitJoy Indemnitee’s control. If the Authorized Retailer does not notify FitJoy in writing within ten (10) business days from the date of such notice that it will assume the entire control of such defense, the Authorized Retailer, FitJoy or the FitJoy Indemnitee shall assume control of the defense with counsel of their choosing and shall thereafter reimburse FitJoy and any applicable FitJoy Indemnitee all of its expenses, costs, fees and damages for such defense when they are incurred. For the avoidance of doubt, Authorized Retailer shall not be permitted to settle or comprise any claim which creates any obligations or admits any liability or wrongdoing on the part of FitJoy without FitJoy’s express written approval.
- If FitJoy becomes aware of any action by Authorized Retailer or Authorized Retailer’s customers not involving a third party claim for which FitJoy or any FitJoy Indemnitee may be entitled to indemnification hereunder, FitJoy or any FitJoy Indemnitee may make a claim for indemnification hereunder by giving written notice to the Authorized Retailer, which notice shall briefly explain the nature and basis of the claim. Authorized Retailer shall notify FitJoy or the FitJoy Indemnified party within ten (10) business days of receipt of the notice whether Authorized Retailer disputes the claim.
- As used in this Section 11, “Confidential Information” means all information, substances, and materials which are proprietary and/or confidential, including but not limited to data, formulas, methods, processes, specifications, information or documents regarding intellectual property, patents, patent applications, trademarks, trademark applications, service marks, service mark applications, technical developments, improvements, products, product formulas, new Product releases, plans, designs, ideas, concepts, costs, prices, payment terms, finances, manufacturing processes, marketing plans and support, promotions, personnel, customers, suppliers, research, development or know how, and any other technical or business information. The term Confidential Information shall not include information which is (a) in or enters the public domain other than through any act of the Authorized Retailer; (b) provided to Authorized Retailer by a third party who is not under any confidentiality obligations and otherwise has the right to disclose such information; or (c) was in Authorized Retailer’s possession prior to disclosure by or on behalf of FitJoy and which can be proven by documentary evidence.
- Authorized Retailer agrees to protect the confidentiality of FitJoy’s and its affiliates’ Confidential Information in the same manner, and using the same degree of care, that it uses to protect the confidentiality of its own trade secrets and Confidential Information, but in no event shall Authorized Retailer use less than a reasonable manner or reasonable degree of care.
- Authorized Retailer shall not at any time disclose or permit to be disclosed to any person or company any Confidential Information relating to FitJoy’s business or affairs or the business or affairs of any affiliate of FitJoy unless otherwise required by law, a court of competent jurisdiction or regulatory body, provided that Authorized Retailer (a) notifies FitJoy (to the extent permitted by law or regulation) as soon as possible in order to give FitJoy the opportunity to seek any other legal remedies to maintain such information in confidence; and (b) uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible.
- Authorized Retailer agrees to maintain the confidentiality of the contents of this Agreement, save for disclosure to Authorized Retailer’s professional advisors, auditors, insurers or financiers or to the extent required by law or as required to give effect hereto.
- All obligations of confidentiality shall continue so long as such information is Confidential Information as defined in Section 11.1.
Law; Jurisdiction and Venue; Waiver of Jury Trial; Attorney’s Fees.
- Applicable Law. Any dispute arising out of, or in connection with, this Agreement, including without limitation, any questions regarding its existence, validity, or termination, shall be governed by, interpreted and construed in accordance with the laws of the State of New York, without reference to any conflict of laws or choice of law rules which would otherwise result in the application of the laws of another jurisdiction.
- Jurisdiction and Venue; Waiver of Jury Trial; Attorney’s Fees. The parties consent and agree to the sole and exclusive jurisdiction and venue of the courts located in New York, New York in connection with any claim, action or dispute related to this Agreement. Each party hereby waives any right to assert a defense related to inconvenient forum. The parties acknowledge and agree that any controversy relating in any manner to this Agreement may involve difficult or complex issues which may be better understood by a judge rather than a jury. Accordingly, the parties hereby knowingly, voluntarily and intentionally waive their rights to a jury trial in connection with any such litigation and consent to a trial before a judge, sitting without a jury. In the event FitJoy takes any action to enforce the terms of this Agreement, in addition to any other rights and remedies, if FitJoy prevails, FitJoy shall be entitled to reimbursement of its outside attorney’s fees and expenses.
- Class Action Waiver. Where permitted under applicable law, Authorized Retailer and FitJoy agree that each may bring claims against the other only their individual capacities and not as a plaintiff or class member in any purported class or representative action. Unless agreed in writing by the parties, no judge may consolidate more than one Authorized Retailers’ claims or otherwise preside over any form of a representative or class proceeding.
- Notice. Any notice to be given under this Agreement shall be in writing and given to a party at such party’s address set forth above, or at such other address as a party hereafter may specify in a notice given in the manner required under this Section. All notices to FitJoy shall be sent to the attention of FitJoy’s Legal Department, with a copy concurrently sent to Harris Beach, PLLC 333 Earle Ovington Blvd, Suite 901, Uniondale, NY 11553, attn.: Craig M. Spierer, Esq. Except as otherwise expressly permitted herein, any notice hereunder shall be given only by, and shall be deemed to have been received upon: (a) registered or certified mail, return receipt requested, on the date on which such notice or request is received as indicated in such return receipt; or (b) delivery by a nationally recognized overnight courier, one (1) business day after deposit with such courier.
- Amendment. Except as otherwise provided in Sections 1.3 and 1.4, this Agreement may be amended only by the mutual agreement of authorized representatives of the parties in writing.
- Assignment. Authorized Retailer may not assign this Agreement or any right or obligation herein without FitJoy’s express written approval.
- Waiver. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute the waiver of any further breach of such term or condition or the waiver of any other term or condition of this Agreement.
- Severability. In the event any of the provision of this Agreement or the application of any provision to any party hereto shall be held by a court of competent jurisdiction to be unlawful or unenforceable, such provision shall be enforced to the greatest extent provided by law, and the remaining provision of this Agreement shall not be affected, impaired or invalidated in any manner.
- Insurance. Authorized Retailer shall maintain a comprehensive general and products liability occurrence policy consistent with industry standards and shall name FitJoy as an additional insured. Upon the request of FitJoy, Authorized Retailer shall provide FitJoy with evidence of compliance with this Section.
- Construction. This Agreement shall be deemed to have been drafted by both parties with the assistance of counsel and each party had a full and fair opportunity to consult with counsel regarding this Agreement. No ambiguity or omission in this Agreement shall be construed or resolved against any party on the grounds that this Agreement or any of its provisions was drafted or proposed by that party.
- Limitation of Liability. IN NO EVENT SHALL FITJOY BE LIABLE FOR PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, WHETHER IN CONTRACT, TORT OR STRICT LIABILTY.
- Survival. The provisions of Sections 1.2, 3.4, 9, 10, 11, 12, 13, and 14 shall survive the termination or expiration of this Agreement.
- Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Faxed or pdf copies of manually executed signature pages to this Agreement will be fully binding and enforceable without the need for delivery of the original manually executed signature page.