Wholesale Program Terms and Policies
By participating in the Thrivous Wholesale Program (“Program”), you ("Wholesaler") agree with the terms and policies set forth in the agreement (“Agreement”) below. Please read the entire Agreement. It is a legal agreement between you and Thrivous. By placing a wholesale order, you are agreeing that you have read and understand the terms and policies of this Agreement, and that, if Thrivous accepts your order, you agree to be legally responsible for each and every term and policy. Thrivous may change the Program or this Agreement at any time without notice. Placement of an order is deemed acceptance of the Agreement posted when the order is placed.
1.1 “Confidential Information” means all confidential and proprietary documents and information regarding financial and marketing data, projections, models, contacts, research, product plans, products, services, customers, markets, software, developments, inventions, formulas, processes, designs, drawings, engineering, and hardware configuration information, which are not otherwise included within the definition of Trade Secrets.
Confidential Information includes, but is not limited to, any nonpublic information regarding the Products, prices, and any nonpublic lists or compilations of customers, prospective customers, or business opportunities.
1.2 “Customer” means a customer or prospective customer of Wholesaler who is the ultimate end user of the Products and any of Wholesaler’s resellers.
1.3 “Products” means products and services offered by Thrivous on its website or in writing, as may be amended from time to time (collectively, “Order Forms”).
1.4 “Proprietary Information” means, collectively, the Confidential Information and the Trade Secrets.
1.5 “Trade Secrets” means information related to the business of the disclosing party which (a) derives economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts by the disclosing party to maintain its secrecy that are reasonable under the circumstances.
2.1 Appointment. Subject to the terms and conditions herein, Wholesaler is appointed as an independent, non-exclusive Thrivous wholesaler to distribute the Products to Customers, and Wholesaler accepts such appointment. Wholesaler agrees to conduct its business as a Thrivous wholesaler in accordance with this Agreement and the policies applicable to Thrivous wholesalers as issued by Thrivous from time to time.
Wholesaler acknowledges that it has only a non‑exclusive right to distribute the Products, and Thrivous may in its sole discretion sell the Products to any other person or entity, and authorize other resellers to sell the Products in competition with Wholesaler by any and all means and channels of distribution.
2.2 Independent Contractor. Wholesaler is an independent contractor, not an agent of Thrivous. Wholesaler will purchase the Products as per the terms set forth in Section 3 and resell them to Customers. Wholesaler has no authority to bind or contract in the name or for the account of Thrivous or to create any liability against Thrivous whatsoever.
2.3 Reserved Rights. Thrivous reserves the right, in its sole discretion, from time to time, without notice, to modify or discontinue the Products; Product specifications; the prices charged for, discounts, and payment and other terms extended with respect to the Products; and any Thrivous trademark. Thrivous shall have the right to allocate sales, limit quantities or cancel orders of selected Products among its customers in its sole discretion, without liability to Wholesaler. Thrivous shall have the right to publicize Wholesaler as a Thrivous wholesaler. Thrivous shall have the right at any time to suspend its performance hereunder during the continuation of any failure by Wholesaler to comply with any of its obligations under this Agreement or Thrivous policies.
2.4 Resellers. Wholesaler shall have the right to appoint resellers, subject to approval by Thrivous, to distribute the Products. Wholesaler shall require all resellers to agree in writing to be subject to the same restrictions as Wholesaler relating to the distribution of the Products. Wholesaler is responsible for making its resellers aware of and ensuring their compliance with applicable Thrivous policies.
3. Product Purchase, Marketing, Distribution, and Returns
3.1 Purchase of the Products; Terms of Sale.
3.1.1 Wholesaler shall pay for any Products at the applicable prices set forth in the most current Order Forms. Payment shall be due when the order for Products is placed (i.e., when the order is received by Thrivous) unless otherwise agreed by Thrivous in writing. Wholesaler’s obligation to pay for the Products is not contingent upon receipt by Wholesaler of payment from any Customer. Thrivous shall have the right to disapprove any proposed sale due to the identity or location of the proposed Customer (including without limitation those proposed sales to Customers who pose competitive or intellectual property protection concerns and Customers located in countries where export control laws prohibit such sale).
3.1.2 All orders are subject to acceptance by Thrivous. A written or verbal acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Thrivous may, in its sole discretion, without liability or penalty, make partial shipments of Products to Wholesaler. Each shipment constitutes a separate sale, and Wholesaler shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of an order. Wholesaler shall have the option to accept and pay for, or reject in writing to Thrivous, delivery of any quantity that is in excess of the quantity specified, or delivery of Products that were not ordered. Any time quoted for delivery is an estimate only; provided, however, that Thrivous shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Thrivous is not liable for any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery.
3.1.3 Each sale of the Products by Thrivous to Wholesaler shall be governed solely by (a) this Agreement; (b) applicable Thrivous policies current at the time of sale; and (c) the prices and other terms set forth on the Order Forms, as in effect from time to time. No acknowledgement, confirmation, or purchase order or other communication submitted by Wholesaler shall be effective to vary the terms described herein, unless the same is separately signed by an officer of Thrivous and designated as an amendment to this Agreement.
3.1.4 The prices on the Order Forms (and any other Product price lists) are net of any governmental taxes, duties, import or export fees, excise taxes, or other similar impositions now or hereafter applied on the production, sale, transportation, licensing or use of the Products, including sales and use taxes and value added taxes, all of which (other than taxes based on the net income of Thrivous) shall be borne by Wholesaler in addition to the price of the Products.
3.1.5 Unless expressly agreed to by the parties in writing, Thrivous shall select the method of shipment of and the carrier for the Products. The Products shall be shipped F.O.B. Thrivous’ facility; Wholesaler is responsible for all shipping, insurance and related charges, and all risk of damage or loss to the Products shall pass to Wholesaler upon tender by Thrivous to the common carrier. Title to the Products remains with Thrivous and shall not pass to Wholesaler until Wholesaler has paid Thrivous in full for all amounts owed with respect to the Products.
3.1.6 Wholesaler is strictly prohibited from relabeling, repackaging, translating or overlaying labels and packaging of the Products, or altering, modifying, reverse engineering, or otherwise changing the Products, their labels, or packaging in any way. Wholesaler shall distribute and sell the Products in the packaging with the labeling as received from Thrivous. Any exceptions must be in writing and signed by the authorized representative of each party.
3.2 Intellectual Property.
3.2.1 Thrivous hereby grants to Wholesaler a non‑exclusive, royalty‑free license to use the now existing or hereafter adopted or created trademarks, trade names, logos, slogans, designs and distinctive advertising applicable to the Products which are approved by Thrivous for use by Thrivous wholesalers (hereinafter the “Trademarks”) solely in connection with the advertisement, promotion, sale and distribution of the Products by Wholesaler under this Agreement and during the term hereof. Wholesaler shall not use the Trademarks in any manner likely to confuse, mislead or deceive the public, or to be injurious or inimical to the best interests of Thrivous.
3.2.2 Intellectual Property Representations and Disclaimers. Thrivous has the right, power and authority to grant the license set forth herein. Thrivous does not warrant or represent that the Trademarks have been registered with the United States Patent and Trademark Office or similar office of any other country, or that the use of the Trademarks will not infringe the trademark rights of others. THRIVOUS MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR DOES THRIVOUS ASSUME ANY OBLIGATIONS WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY ARISING AS A RESULT OF THE ACTIVITIES OF WHOLESALER OR ITS AGENTS OR CUSTOMERS UNDER THIS AGREEMENT.
3.2.3 Notice of Infringement. Wholesaler agrees to notify Thrivous promptly of (a) any third party claim that the Trademarks are infringing, or (b) any infringement or unauthorized use of the Trademarks of which it becomes aware.
3.2.4 Right to Protect Trademarks. Thrivous shall have the sole right to take action deemed necessary to protect the Trademarks. Such action may include, but is not limited to, assuming the defense of any lawsuit challenging or affecting the rights to the Trademarks, settling litigation, and/or instituting litigation to protect its rights to the Trademarks. Thrivous may, at its option, permit Wholesaler the right to prosecute or defend actions described in this section. In the event of litigation, the prosecuting or defending party (whether Thrivous or Wholesaler) shall bear all costs, fees and expenses of legal proceedings and actions regarding infringement and shall be entitled to collect and retain all awards and damages recovered in settlement or other proceeds paid.
3.2.5 Duty to Cooperate. In any infringement lawsuit, Thrivous and Wholesaler shall, at the request and expense of the litigating party, cooperate in all respects and, to the extent commercially reasonable, have their employees testify when requested and make available relevant records, papers, and information and to otherwise cooperate in a timely manner.
3.2.6 All use of the Trademarks by Wholesaler, whether or not authorized, shall inure to the benefit of Thrivous.
3.2.7 Thrivous shall have the sole right to register all Trademarks and Wholesaler shall not attempt to register any Trademarks without the prior written permission of Thrivous. Any applications or registrations Wholesaler obtains in violation hereof shall be owned by Thrivous.
3.2.8 Thrivous retains all rights in and to the Trademarks not specifically granted herein.
3.2.9 Wholesaler shall not (i) take any action that may interfere with any of Thrivous' rights in or to the Trademarks, including Thrivous' ownership or exercise thereof; (ii) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any of the Trademarks; (iii) develop or use any trademarks other than the Trademarks in connection with the Products; (iv) misappropriate any of the Trademarks for use as a domain name without prior written consent from Thrivous; or (v) alter, obscure or remove any of the Trademarks or any other proprietary rights notices placed on the Products purchased under this Agreement, marketing materials or other materials that Thrivous may provide.
3.3 Indemnity. As an independent contractor, Wholesaler is responsible for its own risks, liabilities, and claims arising from its own business operations. Accordingly, Wholesaler agrees to defend, indemnify and hold Thrivous, and their agents, employees, officers and directors harmless from and against any and all claims, demands, liabilities, obligations, damages, costs, losses and expenses of every kind and nature whatsoever (“Claims”), including, without limitation, court costs and attorneys’ fees, arising out of (i) Wholesaler’s own activities, (ii) the negligent or willful acts or omissions of Wholesaler or its agents, employees or Customers, or (iii) the breach of this Agreement by Wholesaler, and regardless of whether such Claims may arise in contract or tort, from intentional or negligent conduct, under statute or regulation, in equity, at law or otherwise. The obligations set forth in this section shall survive the expiration or earlier termination of this Agreement.
3.4 Compliance. Wholesaler will comply with all applicable governmental laws, regulations and orders relating to its activities hereunder, including but not limited to the United States Dietary Supplement Health and Education Act of 1994 (DSHEA), the Federal Trade Commission Act, the Lanham Act and regulations promulgated pursuant thereto, and reporting and licensure requirements, as applicable. Wholesaler shall not make claims that the Products are intended to diagnose, treat, cure, or prevent any disease. Wholesaler agrees that the foregoing obligation and each of the other obligations, representations and warranties set forth in this section are material to this Agreement.
3.5 Licensed Healthcare Providers. If Wholesaler is a licensed healthcare provider, Wholesaler acknowledges that the laws and regulations applicable to health care providers frequently change and vary and from state to state, and that Thrivous gives no representation or advice about federal, state, or local laws or regulations applicable to Wholesaler’s health care practice or profession in connection with the sale of the Products or otherwise. Thrivous encourages Wholesaler to check with its state licensing board and applicable governmental agencies regarding any and all laws related to its healthcare practice and the sale and recommendation of the Products, including whether any specific disclosures or disclaimers should be provided to patients prior to the sale of the Products.
3.6 Online Marketing.
3.6.1 Under no circumstances shall Wholesaler send commercial electronic mail messages as defined in the Federal spam law, CAN-SPAM Act of 2003 (“Act”), with respect to the Thrivous wholesale program. Wholesaler may send transactional or relationship messages as defined in the Act.
3.6.2 Thrivous permits Wholesaler to promote offers on Facebook, Twitter, blogs, discussion forums, and other social media following these general guidelines:
- Wholesaler IS ALLOWED to post promotions on Wholesaler's own social media.
- Wholesaler IS PROHIBITED from posting promotions on the social media of Thrivous.
3.6.3 Wholesaler shall not purchase keywords, domain names, advertising, search terms, adwords, or any other identifiers that include the word “Thrivous,” the names of Thrivous products or services, or any variations or misspellings thereof.
Specifically, this policy prohibits Wholesaler from:
- Bidding on “Thrivous” and any keyword string that includes this term, such as “Thrivous nootropics” or “Thrivous supplements” or “Thrivous coupons” or “Thrivous promotions”; and
- Bidding on “Clarity” and any keyword string that includes this term, such as “Clarity nootropics” or “Clarity supplements” or “Clarity coupons” or “Clarity promotions”; and
- Purchasing domain names based on “Thrivous” or variations, such as “ThrivousNootropics.com” or “Thrivus.co” or “www.thrivous-review.org”; and
- Purchasing domain names based on “Clarity” or variations, such as “ClarityNootropics.com” or “Clarity.co” or “www.clarity-review.org”.
3.7 Online Sales Prohibited.
3.7.1 Unless explicitly authorized by an officer of Thrivous in writing, Wholesaler shall not sell the Products to the Customer or reseller online through electronic commerce on websites or social media of any kind. Wholesaler may only sell the Products to the Customer or reseller offline through in-person point-of-sale channels.
3.7.2 Wholesaler may apply to participate in the Thrivous Affiliate Program to receive commissions on referred online sales.
3.8 Returns. Thrivous will accept returns from Wholesaler customers and issue a credit to Wholesaler account for the following reasons only:
- Product damaged in shipping.
- Product is defective.
- Product returned by Customer to Wholesaler in an unsellable condition, within one year of the date of purchase from Thrivous for the following reasons only (all returns must be made to Wholesaler and not to Thrivous): Customer allergic or could not take product; doctor advised Customer not to take the product.
- Products shipped to Wholesaler in error by Thrivous.
- Products Wholesaler ordered in error. Wholesaler must return within 30 days of the date of purchase.
- To allow Wholesaler to sample products, Thrivous allows Wholesaler 30 days from the date of purchase from Thrivous to return any product that Wholesaler had not previously sampled, for a full refund.
For all returns, Wholesaler must include a letter with the full name and formula number of the product, number of bottles returned, and reason for the return. Without all of this information, credit will not be issued. A copy of Wholesaler invoice from Thrivous would also be helpful for proper credit.
Thrivous will not accept returns for the following reasons:
- Products Wholesaler ordered and then decided Wholesaler did not want, with the exception, within 30 days from the date of purchase from Thrivous, of any product that Wholesaler had not previously ordered.
- Products that are not selling or are out-of-date.
- Products returned by Customer more than one year from date of Wholesaler purchase from Thrivous.
- Products returned to Thrivous by Customer.
4. Product Warranties, Disclaimers, and Warranty Administration
4.1 Warranties and Disclaimers.
4.1.1 Thrivous warrants that the Products will conform to their description as set forth on the order submitted by Wholesaler and accepted by Thrivous. The foregoing warranty is made in lieu of and to the exclusion of all other warranties, express or implied, including warranties of merchantability or fitness for a particular purpose or use.
4.1.2 With respect to its distribution of any of the Products, Wholesaler will give and make no other or different warranties or representations on behalf of Thrivous as to quality, merchantability, fitness for a particular use or purpose or any other features of the Products other than the warranty given by Thrivous to Wholesaler.
4.1.3 Wholesaler shall have thirty (30) days from receipt of the Products to inspect such Products for breaches of the warranty contained in section 4.1.1 above and shall provide Thrivous with written notice of any defects within the thirty (30) day time period. Wholesaler’s exclusive remedy for any breach of the foregoing warranty shall be for Thrivous, at its option, to replace the defective Products or refund to Wholesaler any amounts paid for such Products. Thrivous will advise Wholesaler whether to return or destroy the defective Products.
4.1.4 Thrivous shall not be liable for any claims, demands or actions arising out of, based on or related to this Agreement or the use of the products or any portion thereof, or any damages (whether direct, indirect, incidental, consequential, punitive or exemplary) resulting therefrom, except as expressly set forth in this Agreement. Wholesaler assumes all risks arising out of the use of the Products to the extent permitted under applicable law, including lost profits, lost savings, damages from physical injury to tangible property, personal injury or death. The remedies of Wholesaler for Product defects are Wholesaler’s exclusive remedies; provided that, if the exclusive remedies shall ever be deemed to have failed of their essential purpose, then Thrivous' liability shall in no event exceed the amount paid by Wholesaler for the Products at issue.
4.2 Customer Claims Procedures. Thrivous will refer Customers to Wholesaler for resolution of any claims. Thrivous and Wholesaler agree to cooperate as reasonably requested in an investigation of any claim, and Wholesaler agrees promptly to furnish to Thrivous any information which Wholesaler may have concerning any claim. Thrivous, in its sole discretion, shall have the option to replace or refund to Wholesaler or the Customer any amounts paid for the Product at issue. In the event that Thrivous chooses to pay a refund to a Customer, Wholesaler agrees to refund to Thrivous the portion of the purchase price it received from the Customer. Wholesaler shall accept from Thrivous replacement Products to correct warranty problems and shall be responsible for delivering them to the Customer.
5. Proprietary Information and Other Intellectual Property
5.1 On the date that title to the Products passes to Wholesaler, Wholesaler shall acquire good and clear title from Thrivous to each unit of the Products purchased hereunder. However, Wholesaler acknowledges that any and all of the Trademarks, trade names, trade secrets, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Products shall be and remain the sole property of Thrivous. Wholesaler agrees not to challenge the validity of Thrivous' patents, trade secrets, trademarks, copyrights, registrations or applications therefor or other proprietary rights in the Products during the term of this Agreement, any renewals or extensions thereof, and after any termination or expiration thereof.
5.2 Wholesaler shall protect the Proprietary Information of Thrivous in the same manner and to the same extent as it protects similar information of its own (but must in any event use reasonable care for the protection of the Proprietary Information), and it must not use, reproduce, distribute or disclose the disclosing party’s Proprietary Information to anyone other than its employees, agents or independent contractors who have a specific need to know such information and have been informed and obligated in writing to observe the confidentiality obligations imposed by this Agreement. Wholesaler shall maintain the Confidential Information in secret during the term of this Agreement, any renewals or extensions thereof, and for a period of five (5) years after any termination or expiration of this Agreement. Wholesaler shall maintain the Trade Secrets in secret during the term of this Agreement, any renewals or extensions thereof, and after any termination or expiration thereof, and shall continue to maintain the Trade Secrets in secret for so long as the information is considered by Thrivous to be a Trade Secret and so long as a court of law of no further appeal has not determined that the trade secret status of the information has been lost.
5.3 Wholesaler acknowledges that a breach of Wholesaler’s obligations under this section may cause irreparable damage to Thrivous, which may not be compensable in monetary damages, and that Thrivous shall be entitled, as a matter of right, to seek and obtain injunctive relief to prevent any such breach without the need for posting a bond.
6. Term and Termination
6.1 Term. The term of this Agreement shall commence when Thrivous accepts an order from Wholesaler and may be terminated with or without cause by Thrivous or Wholesaler at any time.
6.2 Effect of Termination. Upon termination of this Agreement, all rights and licenses granted to Wholesaler under this Agreement shall immediately terminate except as expressly provided in this section. Further, Wholesaler shall desist from holding itself out as an authorized Wholesaler of Thrivous and shall cease all distribution of the Products and return to Thrivous all Thrivous literature; provided, however, that Wholesaler shall have the right to distribute its remaining inventory of the Products in accordance with and subject to this Agreement for a maximum of ninety (90) days after the effective date of termination, after which all Product remaining in inventory must by destroyed by Wholesaler, unless Thrivous shall at any time exercise its option by written notice to Wholesaler to repurchase Wholesaler’s remaining inventory at the price(s) paid by Wholesaler to Thrivous, in which event, Thrivous will pay any shipping fees associated with returning the Products. The termination of this Agreement shall not, unless otherwise provided in the termination notice, terminate or be deemed to terminate any other agreement then in effect between the parties.
6.3 Liability upon Termination. Neither party hereto shall be liable to the other party for damages, losses, costs or expenses of any kind or character whatsoever arising from the termination of this Agreement, whether such damages, losses, costs or expenses arise from the loss of prospective sales or expenses incurred or investments made in connection with the establishment, development or maintenance of Wholesaler’s business, or any other reason whatsoever; provided, however, that such termination shall not affect any claim, demand, liability or right of either party arising pursuant to this Agreement prior to the termination, or arising after termination in connection with sale by Wholesaler of its remaining inventory of the Products.
6.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL THRIVOUS BE LIABLE UNDER ANY THEORY TO WHOLESALER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE OR THRIVOUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7. Miscellaneous Provisions
7.1 Entire Agreement; Amendments; Waiver. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior oral or written agreements. This Agreement may not be amended or modified, nor any part waived, except by a further written agreement signed by the parties hereto. No failure or delay on the part of Thrivous in exercising any right or remedy hereunder will operate as a waiver thereof; nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy.
7.2 Assignment. Wholesaler shall not assign its rights or delegate its performance hereunder without the prior written consent of Thrivous, and any attempt to do so without such consent shall be void and of no power or effect. Thrivous may assign this Agreement or any portion of it without the consent of Wholesaler.
7.3 Severability. If any one or more of the provisions in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the same shall not invalidate or otherwise affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah and of the United States of America without reference to any conflicts of law principles; the parties submit themselves to the jurisdiction of the federal and state courts located in Utah County, Utah, which shall have exclusive jurisdiction of any disputes arising hereunder, and the parties waive any objection to venue therein.
7.5 Force Majeure. Thrivous will not be liable for delays in delivery or the failure to perform its obligations under this Agreement, if such failure is caused by the occurrence of any force majeure beyond its reasonable control, including without limitation product allocations, material shortages, labor disputes, strikes and other industrial disturbances, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, government orders, fires, floods, severe weather conditions, accidents, computer interruptions, acts of terrorism, epidemics, quarantine restrictions, riots, insurrections or war. Thrivous' time for delivery or performance will be extended by the period of such delay or Thrivous may, at its option, allocate production and delivery among its customers, or cancel or reduce any order or remaining part thereof, in its sole discretion without liability to Wholesaler.
7.6 Headings. Section headings herein are for convenience only and shall in no case be considered in construing this Agreement.
7.7 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The person placing an order on behalf of Wholesaler warrants that he or she has full authority to execute this Agreement and to bind Wholesaler and that all actions on behalf of Wholesaler required to authorize execution and performance of this Agreement have been duly taken.
Updated 30 July 2019