PROMIX AUTHORIZED RESELLER PROVISIONS
Promix Nutrition, Inc. (“Promix”) has implemented these Promix Nutrition, Inc. Authorized Reseller Purchase Terms and Conditions (the “Terms”), which apply to Resellers of Promix products in the United States of America. By purchasing Products (as hereinafter defined) from Promix for retail sale, you (hereinafter “Reseller,” “you,” or “your”) agree to adhere to the Terms. Please read these terms carefully. Unless and until such status is otherwise revoked by Promix, Reseller shall be considered an “Authorized Reseller” hereunder.
You may be permitted to purchase Promix products as a Reseller. To become a Reseller, you must complete the application at www.promixnutrition.com/pages/wholesale and provide applicable business license and resale tax certificate. Promix reserves the right in its sole discretion to approve or disapprove any application for Reseller status and to terminate any person’s status as a Reseller at any time for any reason or for convenience, and with or without notice. Upon termination, Reseller shall immediately cease any further purchase, resale or use of the Promix products.
- Reseller is granted the non-exclusive, non-transferable right to purchase Products from Promix for resale to consumers. The “Products” include only those Promix products which are available for wholesale purchase from Promix. Reseller is not authorized to resell any other products manufactured by or sold by Promix. Reseller is, and at all times shall be, an independent contractor in all matters relating to these Terms, and shall not be deemed an agent, employee, franchise or partner of Promix. Reseller and its personnel will not be entitled to any of the benefits that Promix may make available to its employees, including, but not limited to, group health or life insurance, profit sharing or retirement benefits.
II. Terms of Sale.
(a) Purchase Orders and Products.Orders for Products (“Purchase Orders”) made by a Reseller shall be handled pursuant to Promix’s then-current Product order processing procedures, which may be amended by Promix at any time in its sole and absolute discretion. Products shipped by Promix will have a minimum shelf life of ninety (90) days from the day of order. Promix reserves the right to reject any Purchase Order, in whole or in part, for any reason. Promix reserves the right, at any time in its sole and absolute discretion and without any obligation, liability, or advance notice to a Reseller, to discontinue the sale of or limit the production of any Product, to terminate or limit deliveries of any Product, to alter the design or composition of any Product, and to add new and additional products to or delete existing Products from its product lines.
(b) Product Shipment.Title to the Products passes from Promix to a Reseller on shipment from Promix’s facility. Loss (including theft) or damage that occurs during shipping is the responsibility of the Reseller.
(c)Payment Terms. Reseller shall pay for the Products and shipping in advance upon placement of the Purchase Order. Payment may be made via bank wire or ACH transfer, or using a valid credit card, debit card, or other payment method offered through promixnutrition.com. A payment error, including, but not limited to, a failed charge or chargeback, may result in termination of Reseller's status as a Promix Authorized Reseller, as determined by Promix in its sole discretion.
(d) Product Returns
- (i) Reseller may contact Promix if not 100% satisfied with a purchase to request a return. Promix does not accept returns or provide refunds on food Products, Protein Puff Bars, Kids Protein Puff Bars, Tigey Bars, Chocolate Bars, and Liquid Protein Shakes. Promix will not accept returns or issue credits for items returned to Reseller by the Reseller’s customers. Other Products may be returned up to 30 days from the date Promix received Reseller’s Purchase Order. Such returns are subject to a restock fee of $1.70 per unit and will only be accepted if the Products are new and unused, in their original unopened packaging. Reseller is responsible for shipping the Product to Promix’s warehouse. Promix will not be responsible for tracking return shipments. After the returned Products are received at Promix’s warehouse and confirmed by Promix to be in new condition, Reseller will be refunded in the original form of payment. Return shipping costs will not be refunded. Shipping charges associated with your Purchase Order will not be refunded. Refunds may take 30 days to process.
- (ii) If Reseller’s order is Returned to Sender, Promix will refund Reseller in the original form of payment after the Products are received at Promix's warehouse. Such returns are subject to a restock fee of $1.70 per unit. Promix will not be responsible for tracking shipments. Shipping costs will not be refunded. Refunds may take 30 days to process.
- (iii) In the event a Reseller receives damaged or expired Products upon delivery, Promix requires the Reseller to submit photographs detailing the damage or expiration date of the affected product. After Promix confirms that the Products shipped were damaged or expired, Promix will provide detailed instructions on when and how to proceed with destroying the defective product. Promix will refund the Reseller in the original form of payment. Refunds may take 7-12 business days to process. Resellers shall not return the Products to Promix but shall instead destroy the damaged or expired Products and shall submit proof of destruction to Promix. Resellers shall not offer damaged or expired Products for sale.
III. Manner of Sale.
- Reseller shall sell the Products only as set forth herein. Otherwise, the Products may not be eligible for certain services and benefits, including, wherever permitted by law, coverage under any Product guarantees.
(a) Authorized Customers.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 or transfer any of the Products to any person or entity for re-sale without the prior written consent of Promix. This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other Resellers, or any other person a Reseller knows or has reason to know intends to re-sell the Products. Reseller shall not engage in drop-shipping or similar selling practices.
(b) Geographic Location of Sales.Reseller shall not market, sell, ship, or invoice Products to customers outside of the United States of America or to anyone a Reseller knows or has reason to know intends to ship the Products outside of the United States of America without the prior written consent of Promix.
(c)Online Sales. Reseller shall not market or offer for sale the Products on or through any publicly accessible website, including, without limitation, any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of Promix.
(d) Sales Practices and Inventory.Reseller will be solely responsible for all aspects of its operation, including human resources, information technology, insurance and legal compliance. Reseller shall support Promix’s sales programs and use best efforts to advertise, promote, market, and sell the Products to its authorized customers and, as applicable, meet or exceed minimum sales commitments. Reseller is prohibited from, either directly or indirectly through third parties, selling or distributing the Products through multi-level marketing, pyramid selling, network marketing, referral marketing, or similar selling practices. Reseller shall conduct its business in a reasonable, lawful, and ethical manner at all times, whether engaged in the sale of Promix Products or other products, shall not engage in any deceptive, misleading, or unethical practices or advertising at any time nor make any warranties or representations concerning the Products except as expressed or authorized by Promix. Reseller shall do nothing to bring the reputation of Promix into disrepute. Reseller shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Products. Further, Reseller shall carry an inventory of the Products adequate to meet the needs of, and to furnish prompt and efficient delivery of Products to, its customers.
(e) Product and Packaging Alterations Prohibited.Reseller shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled products or the bundling of products, whether with Promix products or other brands of similar products), and other alterations to Products or their packaging are not permitted. Tampering with, defacing, or otherwise altering any serial number, UPC code, batch or lot code, or other identifying information on Products or their packaging is prohibited. Reseller shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products, or place any trademarks, logos or designs on the Products that are not approved in writing by Promix. Reseller shall not advertise, market, display, or demonstrate non-Promix products together with the Products in a manner that would create the impression that the non-Promix products are made by, endorsed by, or associated with Promix.
(f) Customer Service.Reseller shall exercise best efforts to achieve a high level of customer satisfaction. Reseller and Reseller’s sales personnel shall familiarize themselves with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise end-user customers on the selection and safe use of the Products, as well as any applicable return policy. Reseller must make itself 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 Promix. Reseller agrees to cooperate fully with Promix in any investigation or evaluation of such matters.
IV. Product Care and Quality Controls.
- Reseller shall care for the Products as set forth herein.
(a) Product Storage and Handling.Reseller shall exercise due care in storing and handling the Products, store the Products in a cool, dry place, on lower racks, away from direct sunlight, extreme heat, and dampness, and adhere to any additional storage guidelines specified by Promix from time to time.
(b) Product Inspection.Within three (3) days of receiving the Products, Reseller shall inspect the Products for damage, defect, broken seals, or other nonconformance (collectively, “Defects”). 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. If any Defects are identified, Reseller must not offer the Product for sale, and must promptly report the Defects to Promix at email@example.com.
(c)Recalls and Consumer Safety. To ensure the safety and well-being of the end users of the Products, Reseller shall cooperate with Promix with respect to any Product recall or other consumer safety information dissemination effort.
V. Warranty Disclaimer.
- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, ALL PROMIX PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROMIX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE, OR OTHERWISE.
VI. Intellectual Property.
- Reseller acknowledges and agrees that Promix owns all proprietary rights in and to the Promix brands, including, without limitation, Promix Diet and Promix Upgraded, names, logos, trademarks, service marks, trade dress, copyrights, and other intellectual property related to the Products (the “Promix IP”). Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the Promix IP solely for purposes of marketing and selling the Products as set forth herein. Reseller’s use of the Promix IP shall be in conformance with any guidelines specified by Promix, including those contained within the Promix Terms of Service, located at www.promixnutrition.com/pages/terms-and-conditions. This license will cease upon termination of Reseller’s status as a Reseller. Promix reserves the right to review and approve, in its sole discretion, Reseller’s use or intended use of the Promix IP at any time, without limitation. All goodwill arising from Reseller’s use of the Promix IP shall inure solely to the benefit of Promix.
- Promix reserves the right to terminate Reseller’s status as a Reseller at any time for any reason or for convenience, and with or without notice. Upon termination, Reseller shall immediately cease (i) purchasing and selling the Products; (ii) acting in any manner that may reasonably give the impression that Reseller is a Reseller of Promix Products or has any affiliation whatsoever with Promix; and (iii) using all Promix IP.
- Reseller shall, and hereby does, indemnify, defend and hold Promix harmless from any claims or damages (inclusive of Promix’s attorneys’ fees) made against Promix as a result of (a) any negligence, misrepresentation, error or omission on the part of Reseller or its representatives, (b) any claims, warranties or representations made by Reseller or Reseller’s employees or agents which differ from those made by Promix on its products, (c) any claim by a customer relating to any support or services provided by Reseller or any contractor of Reseller relating to the Products, or (d) any breach of these Terms by Reseller.
IX. Limitation of Liability.
- PROMIX SHALL NOT BE LIABLE TO RESELLER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS. PROMIX’S AGGREGATE LIABILITY FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY IT ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE AGGREGATE AMOUNT PAYABLE BY RESELLER TO PROMIX DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSATION OF ANY DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
X. Availability of Injunctive Relief.
- Notwithstanding anything to the contrary herein, if there is a breach or threatened breach of Sections 3 (Manner of Sale), 4 (Product Care and Quality Controls), 6 (Intellectual Property), or 7 (Termination), it is agreed and understood that Promix will have no adequate remedy in money or other damages at law. Accordingly, Promix shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Terms of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by Promix to exercise any right(s) herein or to insist upon full compliance by Reseller with Reseller’s obligations herein shall constitute a waiver of any provision herein or otherwise limit Promix’s right to fully enforce any or all provisions and parts thereof.
- Promix reserves the right to audit and/or monitor Reseller’s activities for compliance with the Terms, including, but not limited to, inspection of Reseller’s facilities and records concerning the Products.
(a) Promix reserves the right to update, amend, or modify the Terms upon written or electronic notice to Reseller. 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 Promix IP, or use of any other information or materials provided by Promix to Reseller under the Terms following notice will be deemed Reseller’s acceptance of the amendments.
(b) No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.
(c)Reseller Contact Information. Reseller agrees to maintain accurate and up-to-date company information and to promptly notify Promix of any change to its telephone number, mailing address, or email address.
(d) Force Majeure.Promix shall not be deemed to be in breach hereof or liable to Reseller in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond Promix’s control, including without limitation, fire, flood, terrorist threats or acts, riot or other civil unrest, war, invasion, hostilities, strikes or other labor disputes, embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices from regular sources or on account of shortages thereof, delays or failures of any of Promix’s suppliers to deliver, acts of God or of a public enemy, the effect of any existing or future laws, acts or regulation of any applicable federal, state or local government, or any other commercial impracticability.
(e) If any provision of the Terms is held contrary to law, the remaining provisions shall remain valid.
(f) The following provisions shall survive the termination of the Terms: Section 6 (Intellectual Property); Section 8 (Indemnification); Section 12(f) (Survival); Section 12(g) (Governing Law and Venue); Section 12(h) (Waiver of Jury Trial).
(g) Governing Law and Venue.The Terms and any dispute arising under them shall be governed by, construed, and enforced in accordance with the laws of the State of New York, without regard to its choice of law rules. In the event of a dispute over the terms or performance under the Terms, Reseller expressly submits to personal jurisdiction and venue in the federal or state courts in New York County, New York.
(h)Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES’ ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.
XIII. International Resellers - Additional Terms.
- National and international regulations may restrict or prohibit the shipment or importation of certain products into your country, or may impose duties, tariffs or other charges on such shipments or imports. We are not responsible for determining whether products that you order may lawfully be imported into your country. Each Reseller is solely responsible for ensuring that its resale of Promix products complies with all applicable laws, rules, regulations and orders in any jurisdiction or territory in which the Reseller operates or resells the products. Reseller shall be solely responsible for complying with any and all import and export control laws and regulations of the United States and any other country or jurisdiction into which it has been permitted to distribute the Promix products.
- Reseller shall be responsible for all taxes of any nature which become due with regard to resale of Promix products, including, but not limited to, all sales, use, VAT, GST and other taxes, but excluding taxes on Promix's income. In addition, Reseller shall pay all import and export duties, government permit fees, license fees, customs fees and similar fees levied as a result of the existence or operation of these Terms and any penalties, interest, collection costs and withholding costs associated with any of the foregoing. You must be aware that we have no control over any such additional costs, and cannot predict in advance whether there will be any and, if so, how much they will be. We recommend that you contact your local customs office to thoroughly inquire about import regulations and applicable duties, tariffs or other charges, and to obtain all necessary import permits, licenses or authorizations, before you place your order.
- Due to customs and export or import restrictions some Promix products may not be allowed for importation into certain countries, and some countries prohibit the sale of products containing certain ingredients. As a result, we may not be able to fulfill an order for such products if you live in one of those countries. However, you remain solely responsible for determining if products that you order can be lawfully imported into and sold in your country.
- Resellers are responsible for the products once their order has shipped including products that may be rejected, confiscated or destroyed by customs officials. We do not accept returns due to problems relating to not following customs regulations or any export rule, law, regulation or order. We will not provide any refunds for any orders that are seized by customs officials, refused or held for delivery, abandoned by the intended recipient, that cannot be delivered due to an address error, or that contain products that cannot be sold in your country.
- Promix reserves the right to approve all online marketing and sales materials, including websites, blogs, and online stores pertaining to the Promix products prior to publication.