VITALBODY PARTNER AGREEMENT

            THIS VITALBODY PARTNER AGREEMENT (this “Agreement”), is made and entered into as of the date of execution of (today) (the “Effective Date”), by (applicant) (hereinafter “Reseller”), by and between Vital Body, Inc., an Arizona corporation (hereinafter “Company”), and (applicant), a (partner).

Recitals

            WHEREAS, Company advertises, markets, offers for sale, and sells nutritional supplements; 

            WHEREAS, Company from time to time appoints third parties as authorized resellers of its products; 

            WHEREAS, Company and Reseller desire to enter into this Agreement upon the terms and conditions stated herein.

            NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

Agreement

1.              Basic Terms.   As used in the Agreement, the following terms shall have the following definitions:

(a)            Product.           The “Product” consists of the nutritional supplements Company offers for sale or sells through the Website, as defined herein, from time to time. 

(b)           Term.              The “Term” of this Agreement commences on the Effective Date and continues until terminated as set forth herein. 

(c)            Website.          The “Website” is Company’s e-commerce website hosted at <vitalbody.com> and/or such other e-commerce website through which Company may sell Products from time to time. 

(d)           Platform.         The “Platform” is that portion of the Website that hosts Reseller’s account and allows Reseller to facilitate third party orders of Product and allows such other functions as Company may provide from time to time. 

(e)            Advertisements.          The “Advertisements” are all marketing materials, promotions, advertisements, and/or other materials used by Reseller, Company, or any third party to market, promote, advertise, offer to sell or sell the Product, or otherwise used in connection with the Product. The Advertisements include but are not limited to, the Website and the packaging of the Product. 

(f)            Data.   The “Data” is all information, excluding credit card or financial information, but including personally identifiable information, submitted through the Website or the Platform, or collected in connection with the Product, by Reseller or by Company. 

(g)           Commission.   The “Commission” is the amount set forth either in (i) Exhibit Commission, attached hereto and incorporated by this reference or (ii) Reseller’s account within the Platform, that Reseller will be compensated for each sale of Product, subject to the terms and conditions set forth herein. 

(h)           Consumer.       A “Consumer” is the end customer of the Product. 

(i)             Commission-Eligible Consumer and Commission-Eligible Sale.     A “Commission-Eligible Consumer” is a Consumer that signs up for an account through the Website through Reseller, in Company’s sole discretion and a “Commission-Eligible Sale” is the purchase and payment of Product by a Commission-Eligible Consumer, in Company’s sole discretion.  

(j)             Month.             A “month” is a calendar month.

(k)           Returns.           A “Return” is a Product returned to Company by a Consumer for any reason for which Company refunds the Consumer some or all of its payment.  

(l)             Net Sales.        “Net Sales” of Products is the total amount of revenue received by Company for Commission-Eligible Sales, less shipping, freight, taxes, Returns, and chargebacks.  

(m)          Territory/Channels of Distribution.

(i)             Territory.         The “Territory” of this Agreement shall be the United States. 

(ii)           Distribution Channel.  The Products may be offered for sale or sold by Reseller through any channels of trade (the “Distribution Channels”) provided that if Company believes that a Distribution Channel is not of sufficiently high quality, Company may provide written notice to Reseller, and reseller will cease selling or offering for sale the Product through that Distribution Channel.  

(1)           MAP Policy.   Reseller will at all times remain in compliance with Company’s then-current Minimum Advertised Price Policy, as on the VitalBody website, as it may change from time to time.  

(n)           Notices.  The address at which notice may be sent, and the address which Company will use for all tax matters and the address for which Company will send any Commission, as applicable, and Reseller’s billing address:

2.              Appointment as Reseller.  

(a)            Generally.       Upon the terms and conditions set forth in this Agreement, Company hereby grants to Reseller the right to advertise, market, promote, offer for sale and sell the Product to Consumers in exchange for the Commission.    

(b)           Placing Consumer Orders.      When Reseller discusses the purchase of Product with a potential Consumer, Reseller may create a Website account with or for the Consumer, using a personalized account code that is specific to Reseller, to become a Commission-Eligible Consumer.  Once a potential Consumer creates a Website account using the account code provided by Reseller, and only then, that Consumer has become a Commission-Eligible Consumer.  Notwithstanding anything herein to the contrary, a potential Consumer is only a Consumer of Reseller’s for the purpose of Commission if the Consumer creates an account using Reseller’s personalized account code.  By way of example, if a potential Consumer discusses possibly buying Products with Reseller, but then goes home and orders direct from Company, that Consumer is not a Commission-Eligible Consumer and there is no Commission-Eligible Sale.  All decisions and determinations as to whether a Consumer account is a Commission-Eligible Consumer or if there has been a Commission-Eligible Sale shall be made by Company in its sole and absolute discretion. 

(c)            Fulfillment of Consumer Orders.       Company will fulfill all orders for Product placed through the Website, when ordered through the Website.  Orders for Consumers may be fulfilled by Reseller when the Reseller purchases Product for resale at a retail location or direct sell.  Payment for orders placed through the Website will be immediately upon placing the order, and payment may be required to be received by Company before any order is confirmed unless Reseller has separate payment terms outlined in its account on the Website.  Company has the right to change payment terms at any time, without any notice. 

3.              Term.  The Term shall commence on the Effective Date and will continue for one (1) year, at which point this Agreement will be automatically renewed for successive one (1) renewal periods, unless (i) this Agreement is terminated as set forth herein or (ii) either party provides the other party written notice of termination prior to the then-current term.  

4.              Commission.

(a)            Generally.       During the Term, Company will pay Reseller the Commission, equal to Reseller’s then-current Commission rate times the Net Sales. 

(b)           Set-Off.           During and after the Term, Company may set off the Commission due by any Returns made of Commission-Eligible Sales.  

(c)            Manner of Payment.   The Commission will be paid in the manner of Company’s choice within fifteen (15) days of the then ended month, for the Commission accrued in the then ended month.  No Commission will be due unless and until Company receives payment from the Consumer.  In the event that Company makes payment of the Commission by check, it is the responsibility of Reseller to ensure that the Platform has Reseller’s then current address.  Company will not be responsible for any failure of Reseller to receive Commission because Company does not have a current address for Reseller.  

(d)           Minimum Commission Payment.       Company may from time to time hold a month’s Commission payment because it, in Company’s commercially reasonable judgment, is not a high enough Commission to merit the processing costs to send. In the event a Commission payment is held, it will be sent to Reseller once the Commission due to Reseller is reasonably high enough.  In no event will Commission payments more than fifty dollars ($50) be withheld. 

5.              Product.           At no time during or after the Term will Reseller tamper with or change in any way the Product, either the Product itself or any packaging or labelling for the Product.  At no time during or after the Term will Reseller reverse engineer the Product. 

6.              Limited License.         Company grants Reseller a limited, revocable, non-transferrable, fully paid-up non-exclusive license to use the Advertisements and the Company trademarks used to promote the Products, solely as necessary to advertise, market, offer for sale and sell the Products during the Term of this Agreement, provided such license is only to market and advertise finished, genuine Product that has not been modified or changed in any way.  Company has the right at any time to advise Reseller that its use of the Advertisements and/or the trademarks is not of sufficient quality, at which point Reseller will change its use of the Advertisements and trademarks, or will be in material breach of this Agreement. 

7.              Health Claims.                        Reseller acknowledges and agrees that it cannot make any health claims related to the Products. A health claim on a food/supplement label and in food marketing (written or oral marketing) is a claim by a manufacturer or partner of food products/supplements that their food/supplements will reduce the risk of developing a disease or condition.  

8.              Data.   All Data is owned by Company and Reseller may only use the Data to sell the Products.  Reseller must comply with all laws and regulations when using the Data, including in connection with unsolicited emails. Reseller may not sell, lease, give away or otherwise share the Data with any other party, during or after the Term.  

9.              Acknowledgments And Protection Regarding Intellectual Property.

(a)            Product Distribution.  Reseller agrees that maintaining the marketing and retailing standards of the Product is a material provision of this Agreement, Therefore, Reseller agrees to cooperate with Company in every reasonable manner in this endeavor as Company may request of Reseller from time to time during the Term in connection with the marketing and offering for sale of the Product.

(b)           Rights to Intellectual Property.  Reseller hereby acknowledges that as between Company and Reseller, Company owns the Product, the Advertisements and all intellectual property therein or related thereto (“Intellectual Property”), all rights, registrations, applications and filings with respect to such Intellectual Property, and all renewals and extensions of any such registrations, applications and filings.  Reseller further acknowledges that it is acquiring hereunder only a limited right to use the Intellectual Property solely in connection with the Products and only in accordance with the terms of this Agreement, and that all rights to the Intellectual Property.  Reseller acknowledges and agrees that all usages of the Intellectual Property shall inure to the benefit of Company.

(c)            Intellectual Property Protection.

(i)             Reseller agrees that it shall not use the Intellectual Property in any manner whatsoever at any time during or after the Term, within or outside the Territory, except for such usages, and in such manner, as are allowed under this Agreement.

(ii)           The rights granted hereunder are conditioned upon Reseller’s complete compliance with all laws, rules and regulations of the Territory. 

(iii)         Reseller agrees to cooperate with Company in protecting and defending the rights associated with the Intellectual Property.  

(iv)          Reseller shall not contest or otherwise object to Company’s ownership of the Intellectual Property and shall not aid or assist any third party in contesting Company’s ownership of the Intellectual Property. 

10.           Covenants of Reseller.

(a)            Generally.  Reseller covenants and agrees that Reseller:

(i)             Shall comply, at its own expense, with all laws, ordinances, rules, regulations, and other requirements of all governmental units or agencies having jurisdiction, which laws, rules, regulations, and other requirements pertain to the Products and Reseller’s obligations under this Agreement, and Reseller shall provide Company with written proof of compliance upon Company’s request; 

(ii)           Shall promptly update its contact information if and when it changes during the Term.  

11.           Termination.

(a)            For Convenience.  Either party may terminate this Agreement for any reason or no reason immediately upon written notice to the other party. 

(b)           By Reseller.    Reseller may terminate this Agreement in the event Company breaches a material provision of this Agreement and such breach is not cured within thirty (30) days of Company’s receipt of written notice of breach from Reseller.  

(c)            By Company.

(i)             Upon Advanced Written Notice.  In the event that the reseller breaches a provision of this agreement, Company may send written notice to Reseller if Reseller has not cured any such breach or nonperformance within thirty (30) days after Reseller’s receipt of written notice specifying such breach or nonperformance, the Company shall have the right to terminate this Agreement immediately upon written notice to Reseller.

(d)           Result of Termination.  

(i)             Reseller shall be obligated upon termination to:

(1)           Immediately cease all uses of the Intellectual Property;

(2)           Immediately cease all sales of the Product; 

(3)           Immediately cease all uses of the Data; and

(4)           Immediately cease holding itself out as an authorized reseller of the Product.

(ii)           Company shall, in the first month after this Agreement is terminated, cease charging the Monthly Access Fee and no longer charge Reseller the Monthly Access Fee. 

12.           Assignability/Sublicensing.

(a)            Reseller’s Rights.

(i)             Assignment.  The rights granted hereunder are and shall be personal to Reseller and shall not be assigned by any act of Reseller or by operation of law.  A sale or transfer of any share of stock by any shareholder of Reseller shall constitute an assignment of Reseller’s rights hereunder to the extent that such sale shall result in the transfer of control of Reseller from one person or entity to another person or entity.

(ii)           Sublicenses.  Reseller shall have no right to grant any sublicenses or to grant any sub-distribution rights.

(b)           Company.  Company shall have the right to assign its rights and obligations under this Agreement upon prior written notice to Reseller.

13.           Indemnification.

(a)            By Reseller.  Reseller shall indemnify and hold Company, any parent company, sister company, subsidiary, related company or affiliate thereof, and each of their respective officers, directors, employees, agents and affiliates harmless from and against any and all third-party demands, claims, actions, causes of action, liabilities, suits, proceedings, investigations or inquiries, or any settlement thereto, and all related expenses, including, but not limited, to all litigation expenses (including reasonable attorneys’ fees and court costs) and settlement amounts, as well as all special and consequential damages and damage to Company’s goodwill and reputation that arise from or in connection with, directly or indirectly, Reseller’s actions or failure to act hereunder, including, without limitation, with respect to (i) the advertising, marketing, offering for sale and/or sale of the Product; (ii) the use of the Data; and (iii) any health claims made by Reseller about the Product.  

(b)           By Company.  Company shall indemnify and hold Reseller harmless from and against any and all third-party demands, claims, actions, causes of action, liabilities, suits, proceedings, investigations or inquiries, or any settlement thereto, and all related expenses, including, but not limited, to all litigation expenses (including reasonable attorneys’ fees and court costs) and settlement amounts arising out of any claim that the Product as sold to a Consumer is defective.

14.           Remedies.  In the event that Reseller should breach or violate any of its covenants, representations, or warranties contained in this Agreement, or fail to perform any of its material obligations hereunder, Company shall be entitled to exercise any rights or remedy available to it at law or in equity.  Such rights and remedies shall include but shall not be limited to termination (as provided herein), damages, and injunctive relief.  The exercise of any rights or remedies available to Company shall not preclude the concurrent or subsequent exercise by it of any other right or remedy and all rights and remedies shall be cumulative.

15.           General Provisions.

(a)            Currency.  All amounts stated herein are in U.S. dollars, and all payments required hereunder shall be made in U.S. dollars.  

(b)           Notices.  All notices and other communications which are required or which may be given under the provisions of this Agreement, unless otherwise specified, shall be in writing and may be delivered by personal service, may be mailed by registered or certified mail, postage prepaid to the parties, or sent via facsimile or e-mail during normal business hours, Monday through Friday, to the people and at the address specified in this Agreement. When applicable, all notices and communications shall be deemed to have been received by the other party to whom it was addressed on the third (3rd) business day following the date of mailing.  All communications sent via facsimile or e-mail shall be deemed received upon the date of transmission if sent during the recipient’s normal business hours, or upon the next business day thereafter if not sent during the recipient’s normal business hours.  All facsimiles and e-mails must be confirmed by sending a copy to the recipient either by first class mail or courier within forty-eight (48) hours after transmission.  Either party may change its address at any time by written notice to the other party as set forth above.

(c)            Entire Understanding.  This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and may not be orally changed, altered, modified, or amended in any respect.  To effect any change, modification, alteration, or amendment of this Agreement, the same must be in writing, signed by the parties hereto.

(d)           Successors and Assigns.  This Agreement shall be binding upon and shall inure to the benefit of all permitted successors and assigns of the parties.

(e)            No Waiver.  No waiver by either party, whether expressed or implied, of any provision of this Agreement or of any breach or default of any party, shall constitute a continuing waiver of such provision or any other provisions of this Agreement, and no such waiver by any party shall prevent such party from acting upon the same or any subsequent default of any other part of any provisions of this Agreement.

(f)            Severability.  If any provision of this Agreement, or part thereof, is declared invalid, void or otherwise unenforceable within any independent jurisdiction within the Territory, such provision or part thereof shall be deemed severed from this Agreement solely with respect to such independent jurisdiction within the Territory and every other provision of this Agreement (including such stricken provision) shall otherwise remain in full force and effect with respect to the remainder of the Territory.  If any provision is held invalid as to duration, scope, activity, or subject, such provision shall be construed by limiting and reducing it so as to be enforceable to the extent compatible with applicable law.

(g)           Legal Fees.  In the event either party hereto shall institute an action or arbitration proceeding to enforce or interpret any rights hereunder, the prevailing party therein shall be entitled, in addition to any other relief which may be awarded, to reasonable attorneys’ fees and litigation expenses.

(h)           Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.

(i)             Digital Signatures.  This Agreement shall become binding and enforceable upon a party at such time as a counterpart has been signed and either deposited in the mail, or transmitted via facsimile, or transmitted by e-mail to the other party.  In the event of transmittal by facsimile or e-mail, the signed counterpart shall be deposited in the mail within twenty-four (24) hours thereafter, but the failure to do so shall have no effect on the enforceability of this Agreement.

(j)             Authority. Each individual signing on behalf of a party hereto represents and warrants that he/she is duly authorized by such party to execute this Agreement on behalf of such party.

(k)           Governing Law/Venue.  This Agreement shall be construed and interpreted pursuant to the laws of the State of Arizona without consideration to its choice of law provisions.  In the event of a dispute to interpret or enforce the subject matter of this Agreement, the parties agree to submit the dispute to binding arbitration exclusively in the Maricopa County, Arizona pursuant to the rules of JAMS, and the prevailing party shall be reimbursed for all costs of the arbitration including attorneys’ fees.  

(l)             Relationship of Parties.  This Agreement does not constitute and shall not be construed as constituting an agency, a partnership, or joint venture between Company and Reseller.  Additionally, nothing contained herein shall be construed as to create between Company and Reseller the relationship of franchisor and franchisee.  Reseller shall have no right to obligate or bind Company in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons.

(m)          Survival of Terms.  All terms, conditions, obligations, and provisions capable of surviving the termination or expiration of this Agreement shall so survive.

(n)           Draftsmanship of Agreement.  This writing is the result of the mutual effort of the parties and their respective counsel, therefore, the parties agree that neither party shall be considered the draftsman of this Agreement.

            IN WITNESS WHEREOF, the parties have executed this Agreement on the date stated above.