RS Labs WHOLESALE AGREEMENT

This Wholesale Agreement (this “Agreement”) is entered into as of the Effective Date (the date of first order) by and between Rejuvenation Science, Inc., dba RS Labs, a California corporation, with its principal offices located at 5334 Torrance Blvd, 2nd Floor, Torrance, CA 90503 (“RSL”), and the referenced wholesaler in application (“Wholesaler”).

In consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Applicability.
    1. The terms and conditions set forth in this Agreement and the Purchase Order Transaction Terms (as defined in Section 3(b)) set forth in the applicable Purchase Order (as defined below) submitted by Wholesaler to RSL and that is accepted by RSL are the only terms that govern the sale of Goods by RSL to Wholesaler. For purposes of this Agreement, (i) the term “Goods” means those products RSL elects to make available for purchase by Wholesaler from time to time in RSL’s sole and absolute discretion and (ii) “Purchase Order” means the purchase order for Goods submitted by Wholesaler to RSL in compliance with the terms of this Agreement.
    2. This Agreement, together with the Purchaser Order Transaction Terms in Purchase Orders submitted by Wholesaler for Goods to RSL from time to time and that are accepted by RSL, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Wholesaler’s general terms and conditions of purchase regardless whether or when Wholesaler has submitted such terms and conditions. Fulfillment of Wholesaler’s Purchase Order does not constitute acceptance of any of Wholesaler’s terms and conditions and does not serve to modify or amend this Agreement.
  2. Sales. Goods purchased by Wholesaler shall be offered for sale and sold by Wholesaler solely through the Wholesalers physical stores and/or web store with the url (s) listed on the Wholesale Application (“Authorized Channels”) and solely to individual consumers for their personal use. Wholesaler shall not, directly or indirectly, do or allow any of the following: (i) sell or otherwise transfer any Goods by any means to any entity or individual for resale, marketing or distribution; (ii) sell or otherwise transfer any Goods by any means to any entity or individual that Wholesaler might reasonably believe may resell, market or distribute any of the Goods; or (iii) advertise or solicit sales or sell or transfer Goods through any channel other than the Authorized Channels. Wholesaler agrees that it will educate and cause its employees and agents to comply with the foregoing obligations. Wholesaler agrees to compensate RSL for damages for any violation of this Section 2 and to also reimburse RSL for the purchase of Goods by RSL from any person or entity to which or through which Wholesaler has sold or transferred any Goods in violation of this Agreement.

For clarification, Wholesalers shall not sell or distribute RSL products (a) to other wholesalers, distributors, or other resellers; (b) through third-party websites such as Amazon, eBay, or Walmart; or (c) by using drop-shipping or other similar selling practices.  In addition, wholesalers are prohibited from, either directly or indirectly through third parties, selling or distributing RSL products through auction services such as eBay, multi-level marketing, pyramid selling, network marketing, referral marketing or similar selling practices.

  1. Orders Procedure.
    1. Wholesaler shall submit all Purchase Orders to RSL in writing via such online inventory and order management portal made available by RSL to Wholesaler for such purpose, facsimile, e-mail or US mail that RSL makes available to Wholesaler for placing orders for Goods. Wholesaler shall ensure that all Purchase Orders contain the Purchase Order Transaction Terms. By placing a Purchase Order, Wholesaler makes an offer to purchase Goods under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Other than with respect to the Purchase Order Transaction Terms, any variations made to the terms and conditions of this Agreement by Wholesaler in any Purchase Order are void and have no effect.
    2. Wholesaler shall specify the following information (collectively, the “Purchase Order Transaction Terms”) in each Purchase Order: (a) the Goods to be purchased, including the applicable UPC, SKU or other product identifier; (b) quantities ordered; and (c) the address to which such Goods are requested to be shipped.
    3. RSL may, in its sole discretion, accept or reject any Purchase Order. RSL may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Goods, whichever occurs first. No Purchase Order is binding on RSL unless accepted by RSL as provided in this Agreement.
  2. Shipment.
    1. Unless expressly agreed to by the parties in writing and signed by an authorized representative of RSL, RSL shall select the method of shipment of and the carrier for the Goods. RSL may, in its sole discretion, without liability or penalty, make partial shipments of Goods 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 a Purchase Order.
    2. Unless expressly agreed to by the parties in writing and signed by an authorized representative of RSL, RSL shall ship the Goods using RSL’s standard methods for packaging and shipping the Goods. All prices for Goods are FOB (RSL’s principal place of business in Torrance, California) (the “Shipping Point”) or other location as determined by RSL. Wholesaler shall pay for all shipping charges and insurance costs, if any, from the Shipping Point to Wholesalers address any other address to which such Goods are requested to be shipped by Wholesaler.
  3. Title and Risk of Loss. Title and risk of loss passes to Wholesaler upon delivery of the Goods to the common carrier at the Shipping Point.
  4. Price. The prices for Goods sold under this Agreement shall be per RSL’s then-current wholesale price list. All prices are exclusive of all shipping charges, insurance costs and sales, use and excise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposed by any governmental authority. Wholesaler shall be responsible for all such charges, costs, taxes, duties and tariffs, and shall indemnify and hold RSL harmless against any liability or responsibility for any such charges, costs, taxes, duties and tariffs.
  5. Payment Terms.
    1. Wholesaler shall pay all amounts due at the time a Purchase Order is accepted by RSL and the Goods are ready to be shipped. Goods will not be shipped unless payment therefor is received by RSL. All payments are to be made in United States dollars. Wholesaler agrees not to dispute any charge made to Wholesaler’s credit card for the purchase of Goods or to seek a chargeback therefor.
    2. If applicable, Wholesaler shall pay interest on all late payments at the lesser of the rate of 2.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Wholesaler shall reimburse RSL for all costs incurred in collecting any payments owed to it, including, without limitation, attorneys’ fees and collection costs. In addition to all other remedies available under this Agreement or at law (which RSL does not waive by the exercise of any rights hereunder), RSL shall be entitled to suspend the delivery of any Goods if Wholesaler fails to pay any amounts when due hereunder.
    3. Wholesaler shall perform its obligations under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by RSL, whether relating to RSL’s breach or otherwise and whether under this Agreement, any Purchase Order, any other agreement between Wholesaler or any of its affiliates and (RSL, or otherwise.
    4. As collateral security for the payment of the purchase price of the Goods, Wholesaler hereby grants to RSL a lien on and security interest in and to all of the right, title and interest of Wholesaler in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
  6. Inspection of Goods.
    1. Wholesaler shall inspect the Goods as follows: (i) if the Goods are collected by Wholesaler or on its behalf at RSL’s offices, before accepting such Goods, or (ii) if the Goods are shipped to Wholesaler, within five days of receipt (in each case, the “Inspection Period”). Wholesaler will be deemed to have accepted the Goods unless it notifies RSL in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by RSL. “Nonconforming Goods” means only the following: (A) the applicable Goods are different than those identified in the applicable Purchase Order; or (B) the label or packaging of the applicable Goods incorrectly identifies its contents.
    2. If Wholesaler timely notifies RSL of any Nonconforming Goods, RSL shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Wholesaler in connection therewith. Wholesaler shall ship, via the method selected by RSL and at RSL’s expense, but at Wholesaler’s risk of loss, the Nonconforming Goods to RSL to such address as may be designated by RSL. RSL shall reimburse Wholesaler for such shipping expense. If RSL exercises its option to replace Nonconforming Goods, RSL shall, after receiving Wholesaler’s shipment of Nonconforming Goods, ship to Wholesaler the replaced Goods from the Shipping Point. If RSL exercises its option to credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Wholesaler in connection therewith, RSL shall do so after receiving Wholesaler’s shipment of Nonconforming Goods.
    3. Wholesaler acknowledges and agrees that the remedies set forth in Section 8(b) are Wholesaler’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), Section 9 and Section 10, all sales of Goods to Wholesaler are final, non-exchangeable and non-refundable for any reason whatsoever.
  7. Limited Right of Return. Subject to the terms of this Agreement, during the Return Period (as defined below), Wholesaler may return, at its sole expense and risk of loss, the applicable Goods purchased from RSL under this Agreement and may receive a refund for the purchase price paid for such Goods. RSL shall, after receiving any Goods returned to it in compliance with this Section 9, refund to Wholesaler the purchase price paid by Wholesaler to RSL for the returned Goods. For the avoidance of doubt, no shipping charges, insurance costs or sales, use and excise taxes, or any other similar taxes, duties, tariffs or charges of any kind are refundable. Only Goods that are in their original packaging (unopened and undamaged) are eligible to be returned, and only Goods received by RSL during the Return Period for such Goods are eligible for a refund. The “Return Period” means the 90-day period that begins on the date the Goods that are subject of the return were delivered to Wholesaler. RSL has the right to set off or recoup any refund it owes to Wholesaler against any amount owed or liability for which Wholesaler is liable to RSL, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
  8. Representations and Warranties.
    1. General. Wholesaler represents and warrants to RSL that: (a) if it is a corporation, limited liability company or other type of entity, it is duly organized, validly existing and in good standing in the jurisdiction of its incorporation, organization or formation; (b) if it is a corporation, limited liability company or other type of entity, it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (c) it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose name and electronic submission is set out on this agreement or any Purchase Order has been duly authorized by all necessary action of Wholesaler; and (d) when executed and delivered by each of RSL and Wholesaler, this Agreement will constitute the legal, valid and binding obligation of Wholesaler, enforceable against Wholesaler in accordance with its terms; and (e) it shall at all times during the term of this Agreement and at any time it purchases Goods hereunder, have a reseller permit on file with RSL that is in full force and effect.
    2. Limited Product Warranty. Subject to the provisions of this Section 10, Wholesaler may extend RSL’s “30-day 100% Money Back Guarantee” (the “Limited Warranty”) to each individual consumer who purchases a Good from Wholesaler for his or her personal use (“Consumer”) as follows: during the 30-day period that begins on the date the applicable Consumer purchased the applicable Good from Wholesaler (the “Warranty Period”), such Consumer may return the Good so purchased to Wholesaler (If wholesaler has a refund policy) or RSL if, for any reason, such Consumer decides that the Good is not the right match for him or her, and receive a full refund of the amount paid from Wholesaler. If Wholesaler issues such a refund, RSL shall credit the purchase price paid by Wholesaler to RSL for the Good returned to Wholesaler toward the amounts owed by Wholesaler to RSL under a future Purchase Order submitted by Wholesaler. Notwithstanding anything in this Agreement to the contrary, RSL’s liability under the Limited Warranty is discharged by crediting the purchase price paid by Wholesaler to RSL for the Good returned by a Consumer. Claims by Wholesaler for a credit must be received by RSL no later than 10 days following the expiration of the Warranty Period for the applicable Good and Wholesaler must provide evidence of the purchase by the Consumer and the refund to the Consumer. Wholesaler has no right to return for replacement, credit, or refund any Good except as set out in this Section 10(b) (or if otherwise applicable, Section 9). SECTION 10(b) SETS FORTH WHOLESALER’S SOLE REMEDY AND RSL’S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE GOODS.

In the event that a Consumer requests a refund from RSL directly for product purchased from Wholesaler, RSL will require the partially used Goods to be returned to RSL along with proof of purchase. Once the Goods and proof of purchase are received, RSL will issue Consumer a refund for the full amount paid to Wholesaler. In this case, Wholesaler will owe RSL the difference from the Wholesalers purchase price of said Goods to the amount paid by Consumer (I.e. Wholesaler purchase product from RSL for $60 and sells it to Consumer for $100. RSL will refund the full $100 and will bill the $40 difference to the Wholesaler). The amount owed to RSL will be included in the Wholesalers next purchase.

    1. Warranties Disclaimer; Non-reliance. EXCEPT FOR THE LIMITED WARRANTY, (A) NEITHER RSL NOR ANY PERSON ON ITS BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) WHOLESALER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY RSL, OR ANY OTHER PERSON.
    2. Wholesaler Obligations. Wholesaler shall: (a) market, advertise, promote, and sell the Goods to Consumers in a manner that reflects favorably at all times on Goods and the good name, goodwill and reputation of RSL and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the Goods; (b) have sufficient knowledge of the industry and products competitive with each Good (including specifications, features, and benefits) so as to be able to explain in detail to Consumers: (i) the differences between the Good and competing products; and (ii) information on standard protocols and features of each Good; (c) submit all Goods-related promotional and marketing materials to RSL for approval prior to use and observe all directions and instructions given to it by RSL in relation to the marketing, advertisement, and promotion of the Goods, including RSL’s sales, marketing, and merchandising policies as they currently exist or as they may hereafter be changed by RSL; (d) not make any misleading or untrue statements concerning RSL or the Goods, including any product disparagement or “bait-and-switch” practices; (e) promptly notify RSL of any complaint or adverse claim about any Good or its use of which Wholesaler becomes aware; (f) abide by all rules and regulations of the FDA, FTC, and local governmental agencies regarding dietary supplement promotion, sales, and claims made, and (g) not resell Goods to any federal, state, local, or foreign government or political subdivision or agency thereof, without express written approval from RSL.  Wholesaler warrants that they have sufficient knowledge to evaluate the purchase of nutritional supplements for resale, import these products if outside the U.S, and they carry adequate product liability insurance.
  1. Limitation of Liability. IN NO EVENT SHALL RSL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY WHOLESALER OR COULD HAVE BEEN REASONABLY FORESEEN BY RSL, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL RSL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO RSL FOR THE GOODS SOLD HEREUNDER DURING THE IMMEDIATELY PRECEDING SIX MONTH PERIOD.
  2. Intellectual Property
    1. Wholesaler shall use RSL’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of RSL. Subject to RSL’s trademark policies as may be in effect from time to time, and which may be amended from time to time in RSL’s sole discretion, and the terms and conditions of this Agreement, RSL hereby grants to Wholesaler a non-exclusive, non-transferable and non-sublicensable license to use RSL’s Trademarks only during the term of this Agreement solely on or in connection with the promotion, advertising and resale of the Goods in accordance with the terms and conditions of this Agreement. If and when requested by RSL, Wholesaler shall promptly discontinue the display or use of any Trademark and/or change the manner in which any Trademark is displayed or used with regard to the Goods. Other than the express licenses granted in this Agreement, RSL grants no right or license to Wholesaler by implication, estoppel or otherwise to any of RSL’s Intellectual Property Rights. Wholesaler acknowledges and agrees that: (i) any and all of RSL’s Intellectual Property Rights are the sole and exclusive property of RSL or its licensors; (ii) Wholesaler shall not acquire any ownership interest in any of RSL’s Intellectual Property Rights; and (iii) any goodwill derived from the use by Wholesaler of RSL’s Intellectual Property Rights inures to the benefit of RSL or its licensors, as the case may be.
    2. Wholesaler shall not: (i) take any action that may interfere with any of RSL’s rights in or to RSL’s Intellectual Property Rights, including RSL’s ownership or exercise thereof; (ii) challenge any right, title or interest of RSL’s rights in or to RSL’s Intellectual Property Rights; (iii) make any claim or take any action adverse to RSL’s ownership of RSL’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for RSL’s Trademarks or any other Trademark that is similar to RSL’s Trademarks or that incorporates RSL’s Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere in the world, that is confusingly similar to RSL’s Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any of RSL’s Intellectual Property Rights; (vii) misappropriate any of RSL’s Intellectual Property Rights for use as a domain name without prior written consent from RSL; or (viii) alter, obscure or remove any of RSL’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that RSL may provide.
    3. On termination of this Agreement: Wholesaler’s rights under Section 10(a) cease immediately; and Wholesaler shall immediately cease all display, advertising, promotion and use of all of RSL’s Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with RSL’s Trademarks or with any trademark, trade name or product designation associated with RSL or any Good.
    4. For purposes of this Agreement: (i) “Intellectual Property Rights” means all intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout any part of the world; (ii) “RSL’s Intellectual Property Rights” means all Intellectual Property Rights owned by or licensed to RSL; (iii) “RSL’s Trademarks” means all Trademarks owned or licensed by RSL; (iv) “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world; and (v) “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
  3. Compliance with Law. Wholesaler, at its sole expense, shall comply with all applicable laws, regulations and ordinances related to the purchase of the Goods from RSL and the resale of such Goods, in each case, in accordance with the terms of this Agreement. Wholesaler shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Wholesaler shall indemnify and hold RSL harmless against any liability or responsibility for any failure by Wholesaler to comply with any applicable laws, regulations or ordinances or to maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
  4. Termination. Either party may terminate this Agreement upon 30 days prior written notice; provided that no such termination shall have any effect on any breach of this Agreement or any obligation incurred under this Agreement prior to such termination. In addition to any remedies that may be provided under this Agreement, RSL may terminate this Agreement with immediate effect upon written notice to Wholesaler, if Wholesaler: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  5. Option to Repurchase. Within 10 days after the termination of this Agreement, Wholesaler shall submit to RSL a written schedule reflecting all Goods then owned by Wholesaler or in the Wholesaler’s possession. Upon notice within 10 days following its receipt of such schedule from Wholesaler, RSL shall have the right, but not the obligation, to buy back all or a portion of such Goods, free of all liens, claims or encumbrances, at a price equal to the lower of Wholesaler’s cost therefor and the then-prevailing price, pursuant to the following procedures. Wholesaler shall promptly deliver, at RSL’s reasonable expense, the repurchased Goods in their original packaging (unopened and undamaged) to RSL’s designated carrier for delivery to RSL. RSL has the right to set off or recoup any liability it owes to Wholesaler under this Section 15 against any amount owed by Wholesaler or liability for which Wholesaler is liable to RSL, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
  6. Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  7. Confidential Information. All non-public, confidential or proprietary information of RSL, including, but not limited to, specifications, formulators, contract manufacturers, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by RSL to Wholesaler, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by RSL in writing. Upon RSL’s request, Wholesaler shall promptly return all documents and other materials received from RSL. RSL shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Wholesaler at the time of disclosure; or (c) rightfully obtained by RSL on a non-confidential basis from a third party.
  8. Force Majeure. RSL shall not be liable or responsible to Wholesaler, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of RSL including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  9. Indemnification. Subject to the terms and conditions of this Agreement, Wholesaler shall indemnify, hold harmless, and defend RSL and its parent, officers, directors, managers, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or RSL arising out of or occurring in connection with: (a) Wholesaler’s acts or omissions as a reseller of the Goods, including breach of this Agreement; (b) Wholesaler’s advertising or representations that warrant performance of Goods beyond that provided by RSL’s written warranty or based upon Wholesaler’s business or trade practices; (c) any failure by Wholesaler or its personnel to comply with any applicable laws; or (d) allegations that Wholesaler breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement.
  10. Assignment. Wholesaler shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of RSL. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Wholesaler of any of its obligations under this Agreement.
  11. Third Party Beneficiaries. his Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than the Indemnified Party under Section 20.
  12. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
  13. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the state courts of the State of California in each case located in the City of Los Angeles and County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  14. Notices. All notices, requests and other communications under this Agreement must be in writing and addressed to the other party at its e-mail address set forth below (or to such other e-mail address that the receiving party may designate from time to time in accordance with this Section 22):

Notice to RSL:
Attention: Howard Simon
E-mail: Howard@RSLabsHealth.com

Notice to Wholesaler:
To the email address set forth on the first page of this Agreement

  1. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  2. Survival. Sections of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, Sections 10, 11, 13, 14, 16, 18, 20, 22, 24, 25, 26, 27 and 28.
  3. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Wholesaler’s rights under Sections 8 and 10 are its exclusive remedies for the events specified therein.
  4. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
  5. No Franchise or Business Opportunity Agreement. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be deemed or construed as creating any partnership, joint venture or other form of joint enterprise, agency relationship, franchise, or business opportunity between the parties, employment or fiduciary relationship between the parties. Neither party shall, by virtue of this Agreement, have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Wholesaler has the sole discretion to determine Wholesaler’s methods of operation, Wholesaler’s accounting practices, the types and amounts of insurance Wholesaler carries, Wholesaler’s personnel practices, Wholesaler’s advertising and promotion, and Wholesaler’s service areas and methods. The relationship created hereby between the parties is solely that of seller and reseller. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then RSL may immediately terminate this Agreement.
  6. Acknowledgement of Receipt. By signing this agreement, Wholesaler acknowledges that a copy of the RSL MSRP policy has been received and distributed separate from this agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.