Wholesale Terms of Sale

These Wholesale Terms of Sale (these “Wholesale Terms" or this “agreement”) apply to all sales of product and services ("Product" or “Products”) by Bodygood Nutrition, LLC, dba Pureboost and its subsidiaries and affiliates (hereinafter “Company” or “Pureboost” or “seller”) to any wholesale customer such as a retailer or distributor who resells to consumers ("Customer"). Customer hereby agrees that if accepted as a customer by Pureboost, Customer will comply with these Wholesale Terms, which may be updated from time to time by Pureboost by virtue of it posting updated Wholesale Terms on its website at www.pureboost.com/terms or otherwise sending updated Wholesale Terms.

1. Acceptance. Customer’s acceptance of these Wholesale Terms shall be indicated by signing a Credit Application where indicated or submission of a request to purchase Product by any means (“Order”), including Pureboost’s electronic ordering system (“E-System”). Pureboost's acceptance of Customer's Order is conditioned upon Customer's acceptance of these Wholesale Terms. In the event that Customer’s Order is deemed to be an offer, Pureboost’s acknowledgment or performance of the Order is conditioned upon Customer's acceptance of these Wholesale Terms and the Customer's acceptance of delivery constitutes acceptance of these Wholesale Terms. Any objection or modification found in any Customer acceptance or response is hereby rejected and shall not be deemed incorporated into these Wholesale Terms, unless explicitly agreed to in writing by an authorized officer of Pureboost in an amendment or document that specifically references these Wholesale Terms and amends the same.
2. Order and Shipment. Customer will order Product by sending Pureboost a complete Order, in a form acceptable to Pureboost. Pureboost may reject the Order for any reason. Pureboost will not be bound by any terms or conditions set forth in any Order and this agreement shall prevail should any conflicting Wholesale Terms be stated therein. Customer agrees not to contest the validity or enforceability of any Order. Delivery will be made in accordance with Pureboost’s shipping policy in effect on the date of shipment. All shipments of Product hereunder will be FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from Pureboost to Customer's identified place of delivery will be at Customer’s sole expense. Company will pay all insurance costs applicable to shipment on behalf of Customer, unless waived in writing by Customer. Customer must notify Pureboost, by emailing Pureboost’s Customer Service Department within five (5) days after delivery, of any claimed shortages or rejections and Pureboost must receive a written notice (“Shipment Claim”). Failure to give such notice of a Shipment Claim will be deemed an acceptance in full of any such delivery. Approval of the validity and determination of the appropriate remedy for any Shipment Claim is in Pureboost’s sole discretion. In the event that Pureboost does not approve the Shipment Claim, Customer will pay the total invoice.
3. Price and Payment. Prices for the Product will be as set forth in Pureboost's then applicable price list or per agreed pricing arrangement exclusive of applicable taxes, duties, licenses, excises, tariffs, fees and shipping costs, which shall be the obligation of the Customer. Payment
   is due thirty (30) days from date of Pureboost’s invoice, except that COD accounts are due upon delivery. The cash sales price for all materials and services purchased by the Customer is due within 30 days after the date of the invoice and shall be paid in the currency of the United States. All payments agreed to under this agreement shall be made payable to Pureboost at its office located at 1596 N Coast Hwy 101, Encinitas CA 92024, unless another shall be specified by seller. Customer will pay a late fee of one- and one-half percent (1.5%) per month on any outstanding balance owed, or the maximum amount permitted under applicable law. Pureboost reserves the right to withhold shipment of any part of an Order or to require pre-payment of any Order in the event that Pureboost determines in its sole judgment that the Customer is unable to make timely payment. Customer agrees to pay reasonable attorney’s fees and costs, as well as all costs of collection and any other expenses incurred by seller in the collection of any invoice amount.
4. Purchase Money Security Interest. Customer grants Pureboost and Pureboost retains a purchase money security interest in all products and services purchased by Customer under this agreement to secure payment of the amount due. In case of non-payment by Customer, seller shall have the right to repossess and sell items purchased under this agreement in accordance with applicable laws of the State of California, or other laws governing jurisdictions outside the State of California. Customer agrees to cooperate with Pureboost to perfect Pureboost’s security interest. Customer authorizes Company to file any relevant instrument, including without limitation, any UCC Financing Statements, without Customer’s signature or on behalf of Customer as Customer’s irrevocably appointed attorney-in-fact.
5. Returns. Customer may return Product purchased from Pureboost (“Returned Product”) and receive a credit up to the amount invoiced for the Returned Product, subject to the following: (a) the Returned Product is received by Pureboost within thirty (30) days of the invoice date; (b) Pureboost may deduct all shipping fees and may assess a restocking fee of 20% at its discretion, except for Defective Product (defined below); (c) the Returned Product is new and unused and in good and salable condition (except for Defective Product); (d) the Returned Product is in its original packaging, which has not been damaged or altered; (e) Pureboost determines, in its sole judgment, that Customer is not in default of the Wholesale Terms or any other agreement between the parties, and (f) Pureboost issues a return authorization (“RA”), including applicable fees, for the Returned Product prior to Customer’s shipment of the same. Product purchased from Pureboost determined to be defective within thirty (30) days of the invoice date (“Defective Product”) may be returned to Pureboost according to the foregoing procedures with no restocking fee or deduction of shipping fees. All Returned Product and Defective Product must be shipped by Customer FOB destination and received by Pureboost within fifteen (15) days of the date of issuance of the RA. Notwithstanding the foregoing, Pureboost makes no warranty or representations regarding the Product other than as explicitly set forth herein.
6. Freight & Insurance. All shipments are FOB origin. You may elect to insure the product, or you can contact your own insurance company to obtain an umbrella policy to cover you in the event the product is damaged in shipment. Unless otherwise agreed in writing, obtaining and paying for insurance is the responsibility of the Customer. Customer understands that they will bear the responsibility and costs associated with all damages and losses if they do not obtain insurance. Customer understands that it is responsible for obtaining insurance and will be responsible for the associated costs of the insurance coverage.
7. Credit Memos and Refunds. Credit memos may be available to Customer pursuant to Pureboost's then applicable policies and programs. Pureboost may apply any Credit memos to any amount Customer owes to Pureboost. Refunds will be issued, upon request of Customer, only in the event of an overpayment and provided that Customer’s account with Pureboost is current.
8. Confidential and Proprietary Information. Customer acknowledges that all non-public information disclosed to it by Pureboost or its representatives as a result of performance of these Wholesale Terms, including without limitation, pricing and discount information or information about potential new product, whether in tangible or intangible form and however conveyed shall be deemed “Confidential Information.” Customer agrees not to disclose or use such information except, (i) in connection with the relationship of the parties established under these Wholesale Terms, or (ii) as required by law. Customer agrees to promptly notify Pureboost of any subpoena or court order compelling disclosure and to provide reasonable cooperation to Pureboost in seeking protection of any Confidential Information.
9. WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY. PUREBOOST WARRANTS THAT THE PRODUCT, WHEN DELIVERED, WILL BE IN MATERIAL COMPLIANCE WITH THE US FEDERAL FOOD, DRUG AND COSMETIC ACT. PUREBOOST MAKES NO OTHER WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCT. PUREBOOST DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PUREBOOST BE LIABLE FOR ANY LOSS, DAMAGE OR COST FOR BREACH OF WARRANTY. PUREBOOST WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY LOSS OF REVENUE, PROFIT, USE OF DATA, UNAUTHORIZED USE OF THE ESYSTEM, INTERRUPTION OF BUSINESS OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF PUREBOOST HAS BEEN ADVISED OF SUCH DAMAGES. IN NO EVENT WILL PUREBOOST'S LIABILITY TO CUSTOMER EXCEED THE LESSER OF (1) THE TOTAL AMOUNT OF PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT THAT IS THE BASIS FOR THE CLAIM DURING THE PRIOR 12 MONTH PERIOD PRECEDING THE CLAIM, OR (2) $25,000. THIS DISCLAIMER AND LIMITATION OF LIABILITY PROVISION WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE.
10. Export Restrictions. Customer represents that it is not purchasing the Product for resale outside of the United States. If Customer wishes to export the Product outside of the United States, it will disclose the territory or territories into which it wishes to export the Product and obtain Company’s approval (which may be withheld or withdrawn, in whole or in part and in Company’s sole discretion) and Customer will obtain and be responsible for all licenses, permits and approvals required by any government entity involving export, import or resale and will comply with all applicable laws, rules, policies and procedures. Customer will indemnify, defend and hold harmless Pureboost for any violation or alleged violation by Customer of such laws, rules, policies or procedures. In any such event, Customer will not apply for or own any trademark, patent, product approval or other registrations in any country or jurisdiction associated with the Product and if it does obtain or seek any such registration or right, it shall be deemed to have done so as a nominee for Company and shall transfer and convey any such registration or right to Company or its designee upon demand. 
11. Resale. Customer may promote and sell the Products only in face-to-face transactions from physical locations in the United States of America and its territories (the “Territory”), and will not market or sell the Products using any website, Internet site or mail order catalog without specific written authorization by Company. Nothing in this Agreement shall be construed as limiting in any manner Company’s marketing or distribution activities, directly or indirectly, with respect to the Products, similar products or services, or its appointment of other resellers, dealers, distributors, licensees or agents, either within or outside the Territory.
12. Prices. Company may change the price it charges for Products at any time in its sole discretion with or without notice to Customer. Such changes shall not affect orders placed before the date of the aforementioned pricing change. Product prices charged to Customer are exclusive of all taxes, insurance, and shipping and handling charges, which are Customer's sole responsibility. Company reserves the right to adopt a minimum advertised pricing policy (“MAP”) at any time with or without notice to Customer. Company may collect sales tax on Products unless Customer provides Company with evidence of a resale permit or similar governmental document authorizing Customer to buy goods for resale without paying sales tax.
13. Customer Covenants. Customer will: (a) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Company; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company or the Products; (c) make no false or misleading representations with regard to Company or the Products; (d) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Company or the Products; and (e) make no representations, warranties or guarantees to its customers with respect to the specifications, features or capabilities of the Products that are inconsistent with the promotional material published by Company.
14. Use of Marks. Subject to the Wholesale Terms of these Wholesale Terms, Company grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license within the Territory during the term of this Agreement (a) to use and display the trademarks owned by Company found on the packaging and promotional materials it products for the Products 9the “Marks”) for the sole purpose of promoting and selling the Products. Customer shall not remove or destroy any copyright notices, trademark indicia or other proprietary markings on the Products, documentation or other materials related to the Products. Except as expressly provided herein, Company grants Customer no rights or licenses whatsoever in or to the Marks, the Products, or any other Company products or intellectual or proprietary rights. Company hereby expressly reserves all rights and licenses not expressly granted in this Agreement.
15. Right of Termination. Either party may terminate their business relationship at any time by written notice to the other party. Company reserves the right to consider any unfilled orders pending as of the date of such termination to be deemed canceled, and in any case, Company and Customer hereby waive all claims against the other in connection with the cancellation of such orders and the termination of their relationship. In the event of expiration or termination of their business relationship for any reason, (a) the rights and licenses granted to Customer hereunder shall immediately terminate, except for the limited purpose of selling any remaining inventory then in its possession and rightfully purchased from Company, (b) all amounts payable by Customer to Company shall survive termination and become immediately due and payable, and (c) Company shall have the right, but not the obligation, to repurchase unsold Products in Customer's inventory. Within ten (10) days following termination, Customer shall furnish Company with an inventory of unsold Products. Within ten (10) days after receipt of such inventory, Company shall notify Customer in writing whether or not Company intends to repurchase from Customer all or part of such inventory at the original invoice price. Company shall pay all transportation and other costs connected with shipping such repurchased Products to Company. COMPANY WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF TERMINATION OR EXPIRATION OF THEIR BUSINESS RELATIONSHIP IN ACCORDANCE WITH ITS TERMS. CUSTOMER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THEIR RESPECTIVE BUSINESS RELATIONSHIP UNDER THE LAWS OF ANY RELEVANT JURISDICTION.
16. Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, agents and employees (collectively, “Indemnitee”), against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by Indemnitee, known or unknown, contingent or otherwise, directly or indirectly arising from or related to: (a) any unauthorized representation, warranty, act or omission made by Customer in connection with the Products; (b) any modification or alteration to the Products made by Customer; (c) any inaccuracy in any Customer advertising or marketing materials relating to the Products; (d) any breach by Customer of any of the terms, provisions, representations, warranties or covenants contained in these Wholesale Terms; or (e) any action or inaction by Customer or any of its contractors, agents or employees which caused or is alleged to have caused damage to the person or property of a third party. Nothing herein shall restrict Company from participating in or assuming the defense of any third party claims at its own cost and expense. 
17. General. These Wholesale Terms will be construed in accordance with the laws of California other than conflicts of law. Customer consents to the non-exclusive jurisdiction of any State and Federal Court in San Diego County, California regarding any disputes arising out of these Wholesale Terms. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Wholesale Terms. The failure of either party to insist upon strict performance of any of the provisions of the Wholesale Terms will not be deemed a waiver of any breach or default. Each of the parties represents that it has the authority to accept these Wholesale Terms. Any notice given to either party will be in writing and effective by transmission via facsimile and regular mail to the addresses indicated in the Customer Account and Credit Application or as otherwise notified in writing by the party. Pureboost will be entitled to recover all expenses, including attorney's fees and costs, incurred as a result of enforcement of any provision hereof or collection of any sum due from Customer. If any provision of these Wholesale Terms are unenforceable as a matter of law, all other provisions will remain in effect. Pureboost may assign these Wholesale Terms. Customer may not assign these Wholesale Terms without the prior written approval of Pureboost. Pureboost will not be liable for any delay or failure in performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics and similar occurrences. These Wholesale Terms constitute the entire agreement between the parties as to the sale of Product and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings regarding the sale of Product. The Wholesale Terms may be amended or modified by Pureboost at any time by publication of updated Wholesale Terms at www.pureboost.com/terms and Customer shall be deemed to have agreed to and accepted any such updated Wholesale Terms by placing or accepting any additional order of Product. Customer warrants and represents that the information provided as part of its Customer Account and Credit Application was and is true and correct and acknowledges that Pureboost will rely on this information in determining financing terms for Customer, if any, and Customer will provide updates to Pureboost promptly if any such information changes.