AUTHORIZED RESELLER POLICY
PharmaCare US, Inc. (hereafter “PharmaCare”), a Delaware corporation, is the manufacturer and brand owner of Sambucol products. PharmaCare hereby adopts the following Authorized Reseller Policy (the “Policy”) to protect the long-term strength and integrity of its brand and Products.
All Authorized Resellers accept and are bound by the terms and conditions of this Policy, which detail the channels and methods in which they are authorized to sell Sambucol products. These terms and conditions are subject to change by PharmaCare without prior written notice at any time. PharmaCare and its Authorized Resellers are individually a “Party” and together are the “Parties.”
Terms and Conditions
- Authorization. Authorized Reseller can advertise and sell Sambucol Products (the “Product” or “Products”) to End-Users in the United States of America only, in brick-and-mortar locations and on their own Internet URL locations approved by PharmaCare.
- Third-Party Internet Marketplace Sales. Authorized Reseller is prohibited from selling Sambucol products on Internet marketplaces including, but not limited to, Amazon, Walmart, eBay, Alibaba, Newegg, Craigslist, Rakuten, Sears, unless Authorized Reseller obtains written permission from PharmaCare authorizing them to sell on specific Internet Marketplaces and under specific seller names. PharmaCare may revoke or amend Authorized Reseller's internet marketplace authorization by sending notice to Authorized Reseller and such revocation or amendment shall become effective upon delivery of such notice.
- No Agency. PharmaCare and each Authorized Reseller agree the relationship established by this Policy is that of independent contractors. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.
- End Customers. Product purchased by Authorized Resellers are intended for sale to end customers only. Accordingly, Authorized Resellers will advertise and resell the Product to end customers only. End customers are customers who purchase the Product for their personal use or consumption. Authorized Resellers are prohibited from reselling the Product to other sellers, retailers, or distributors without prior written approval from PharmaCare.
- Geographic Territory. The authorization granted to the Authorized Resellers by this Policy is limited to the United States without exclusive right to any specific territory. Authorized Resellers must obtain prior written approval from PharmaCare to market, resell, gift, or export the Product outside the United States. Authorized Resellers must also obtain prior written approval from PharmaCare to resell Product to a buyer who the Authorized Resellers know, or reasonably should have known, has the intent to export the Product outside the United States.
- Duration. An Authorized Reseller’s approval to advertise and resell the Product will remain in effect until it is terminated by either Party or when PharmaCare terminates this Policy.
- Quality Control. Authorized Resellers acknowledge the importance of upholding the good reputation of PharmaCare and its Products. Accordingly, Authorized Resellers must comply with all applicable federal, state, and local laws and regulations. Authorized Resellers must also agree to adhere to the highest quality control standards in performing their obligations under this Policy, including the following standards established by PharmaCare:
- Provide Accurate Information. Authorized Resellers must provide accurate and up to date company and contact information including all DBA’s, retail locations, and websites where the Product will be sold.
- Product Storage. Authorized Resellers will store the Product in secure facilities and in a manner that prevents damage to the Product or its packaging.
- Original Packaging. Authorized Resellers will only sell Products in their original unaltered, undamaged, and sealed packages with all original markings, documents, and identifying information intact. Authorized Resellers will not sell Products that are marked “used,” “open box,” or with any other similar descriptors. Authorized Resellers are prohibited from selling Products that have original labels replaced, altered, destroyed, or bundles made up of items meant to be sold individually or as part of a larger package; such packages are considered altered and will not qualify for refunds, exchanges, or PharmaCare’s product warranties.
- Damaged Product. Authorized Resellers will destroy, at their own expense, Product that PharmaCare determines is altered, damaged, or does not meet PharmaCare’s quality standards.
- No Brand Commingling. Authorized Resellers will not advertise or display the Product with non-Sambucol branded products in a manner that creates the impression that the non-Sambucol products are made by, endorsed by, or associated with Sambucol. Such commingling of brands is likely to cause customer confusion and is prohibited.
- Quality Control Audit. PharmaCare may conduct quality control audits of its Authorized Resellers’ advertising, promotional materials, product images, and any documents related to the marketing and advertising of the Product to determine whether the use of the Product and Intellectual Property meet the standards, specifications, and directions approved by PharmaCare. When requested, Authorized Resellers will provide PharmaCare with samples of advertising, promotional materials, product images, and any other documents for review.
- Product Recall. If Product recall is necessary, Authorized Resellers will cooperate with PharmaCare to conduct the recall.
- Additional Quality Control Standards. PharmaCare has the right to issue additional quality control standards to protect its brand’s reputation and ensure commercial success of its Products. All Authorized Resellers agree to abide by all additional quality control standards issued by PharmaCare.
- Customer Service. Authorized Resellers will offer customer service in a timely, diligent, and professional manner to customers who purchase the Product. Authorized Resellers will use commercially reasonable efforts to ensure customer satisfaction, increase customer loyalty, and preserve customer trust in the Sambucol brand.
- Intellectual Property. PharmaCare owns all proprietary rights in and to the Sambucol brand, including name, logo, trademarks, service marks, trade dress, copyrights, patents, and any other intellectual property related to the Products (“Intellectual Property”). PharmaCare grants its Authorized Resellers a limited, non-transferable, revocable license to use PharmaCare’s Intellectual Property for the purpose of marketing, advertising, and reselling the Product in a manner consistent with this Policy. The Intellectual Property will not be affixed to, or advertised in connection with, any goods or services other than the Product. All goodwill arising from the Authorized Reseller’s use of the Intellectual Property shall inure solely to the benefit of PharmaCare. Authorized Resellers agree to immediately cease all use of the Intellectual Property upon the termination of their Authorized Reseller status. This limited license is granted only to PharmaCare’s Authorized Resellers.
- Advertising By PharmaCare. Nothing in this Policy limits PharmaCare’s right to advertise and sell the Product independently from its Authorized Resellers. All decisions regarding the advertising medium or content will remain the sole discretion of PharmaCare.
- Product Warranties. PharmaCare warrants the Products to be free from defects in material and workmanship. PharmaCare warrants that the Products sold by its Authorized Resellers conform to PharmaCare’s specifications. Products sold by PharmaCare and its Authorized Resellers come with an unconditional money-back guarantee that allows end customers to return any item for a full refund within ninety (90) days of purchase. Such warranties extend only to Products sold by PharmaCare and its Authorized Resellers who are subject to PharmaCare’s quality control standards. PHARMACARE’S WARRANTIES DO NOT EXTEND TO PRODUCTS OBTAINED AND SOLD BY UNAUTHORIZED RESELLERS OR TO PRODUCTS WHICH PHARMACARE CONSIDERS ALTERED.
- WARRANTY DISCLAIMER. THE EXPRESS WARRANTIES SET FORTH IN THIS POLICY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. PHARMACARE HEREBY SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS POLICY, IN NO EVENT WILL PHARMACARE BE LIABLE TO AN AUTHORIZED RESELLER FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM, WHETHER ARISING UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER PHARMACARE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PHARMACARE’S LIABILITY WILL NOT EXCEED THE AMOUNT AUTHORIZED RESELLER PAID TO PHARMACARE FOR THE PRODUCT.
- Termination by PharmaCare. PharmaCare may terminate a Party’s Authorized Reseller status if the Party breaches the terms of this Policy or for any other reason for which PharmaCare reasonably believes termination is necessary. If PharmaCare elects to terminate this Policy, PharmaCare will give written notice to all Authorized Resellers within a reasonable time. Upon termination, an Authorized Reseller’s authorization to advertise and resell the Product will be immediately revoked.
- Termination by Authorized Resellers. An Authorized Reseller may terminate its status as an Authorized Reseller by providing a ninety (90)-day written notice to PharmaCare. Upon termination, the Authorized Reseller’s authorization to advertise and resell the Product will be immediately
- Governing Law. This Policy, and any dispute arising under its terms, will be governed by, construed, and enforced in accordance with the law of the State of Delaware, without regard to its choice of law rules.
- Assignments. The Parties cannot assign their obligations or rights under this Policy without the prior written consent of the other. Any attempt to make an assignment without the other Party’s written consent will be void.
- Modifications. This Policy may be modified or amended by PharmaCare in its sole discretion. PharmaCare will give written notice to all Authorized Resellers, within a reasonable time, of any modifications or amendments to the Policy.
- Severability. If any part of this Policy is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, that part will be severable from the remainder of this Policy and will not cause the invalidity or unenforceability of the remainder of this Policy.
- Notices. Unless otherwise agreed to by the Parties, all notices will be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, (iv) email, or (v) fax with confirmation.
- Equitable Remedies. The Parties agree that irreparable damage would occur if any provisions of this Policy were not performed in accordance with the terms hereof. Accordingly, the Parties will be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof.
- Entire Policy. This Policy is the complete and exclusive statement of the mutual understanding of the Parties. This Policy supersedes and cancels all previous written and oral agreements or communications relating to PharmaCare’s Authorized Reseller Policy and its Terms and Conditions.
- Notice of Minimum Advertised Price Policy. PharmaCare maintains a Minimum Advertised Price Policy that applies to all Sambucol products. This section is intended to only give notice of the policy to all Authorized Resellers. It does not constitute consideration for any agreement between the Parties nor a separate agreement regarding the final price that Authorized Resellers will charge their customers. The Minimum Advertised Price Policy is a unilateral policy and not subject to agreement by Authorized Resellers.