Host Defense Reseller Policy
Host Defense® Organic Mushrooms™ from Fungi Perfecti, LLC • PO BOX 7634, Olympia, WA 98507 USA
Toll-Free (877) 504-6926 • Tel (360) 427-4561 • Fax (360) 426-6584 • www.hostdefense.com
- Compliance. Reseller will at all times comply with all laws applicable to its performance under this Agreement.
- Territory. Reseller will not sell Products to any buyer outside of the United States.
- Distributor: Reseller is authorized to resell products to end-users and also to other Resellers who operate as health care practitioners (e.g. acupuncturists). Reseller agrees to refrain from supplying Host Defense Products to any accounts which will resell the products through brick and mortar stores or online/ecommerce channels. E-commerce channels include, but are not limited to individual webstores and thirdparty seller platforms such as Amazon.com or eBay.com. At the request of Fungi Perfecti, Reseller will reasonably cooperate in identifying and blocking access to Host Defense products for those accounts found to be reselling through unauthorized channels.
- Third Party Websites. Unless permitted in writing by Fungi Perfecti, Reseller and its customers will not, directly or indirectly, list for sale, advertise or sell Products on websites that are owned or controlled by a third party but on which Reseller controls the advertised and sale price (e.g. Amazon.com, sears.com, newegg.com) or on any other internet-based shopping website not owned and controlled by Reseller. Specifically, unless permitted in writing by Fungi Perfecti, Reseller will not use fulfillment by Amazon services in any manner for the sale of Products.
- Auction Sites. Reseller will not, directly or indirectly, list for sale, advertise or sell Products by auctionor barter including, without limitation, sales through auction websites (for example, eBay)
- Trademark. Reseller will not modify or misrepresent Fungi Perfecti’s or the Product’s icons, trademarks, brand elements or graphics in any way without the prior written consent of Fungi Perfecti and will abide by Fungi Perfecti’s trademark guidelines as Fungi Perfecti may provide from time-to-time.
- Product Representations. Reseller will not engage in any unfair or unethical trade practices, or make any false or misleading representations with respect to Fungi Perfecti, its personnel or products.
- Storage. Reseller will store Products at all times in clean and dry conditions and at temperatures between 33 and 77 degrees Fahrenheit. Reseller will follow other storage guidelines provided by Fungi Perfecti from time to time.
- No Health Claims. Reseller understands that Products are not intended to diagnose, prevent, treat or cure any disease and will not make any such claim in the sale or marketing of the Products.
- Efforts. Wholesaler will utilize diligent efforts to maximize the sale of Products sold to buyers.
- Packaging. Reseller will sell all Products in their original packaging and will not adulterate, re-pack, relabel, alter, or tamper in any way with the Products or the packing in which the Products are contained.
- Expired Product. Reseller will not sell any Products that are past the expiration date.
- Image and Descriptive Text Usage. Reseller will use images and descriptive text received from Fungi Perfecti only on a one-time, non-transferable use. Reseller understands that all photos and text are copyright Fungi Perfecti or its affiliate, all rights reserved. Any image or descriptive text received from Fungi Perfecti is to be used for the sole purpose of promoting Products, unless written permission is otherwise granted by Fungi Perfecti or its affiliate.
The following terms and conditions of sale (“T&Cs”) are applicable to all sales of products (“Products”) made by Fungi Perfecti, LLC., a Washington limited liability company (“Fungi”) to you (“Buyer” or “you”) whether placed through the phone, website, EDI, email, phone, letter or purchase order, unless otherwise specified.
1. Buyer’s Acceptance of Terms. These T&Cs prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order by Fungi does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these T&Cs. If there is any inconsistency between these T&Cs and terms and conditions contained in any other document submitted by Buyer or exchanged by Fungi (including purchase
orders, acknowledgements, requests for proposal, invoices, etc.), these T&Cs shall control even if Buyer's documents expressly limit acceptance to use of Buyer's terms and conditions. These T&Cs constitute the entire agreement between the parties as to any particular purchase by Buyer of Products.
2. Payment Terms; Credit. Full payment must be made by Buyer prior to shipment unless otherwise agreed by the parties. Buyer may not reduce any payment by any alleged discounts or other deductions without Fungi’s prior written consent. Fungi shall have the sole right to determine the amount of credit extended to any Buyer. Fungi makes no assurance that credit will be extended or that, once extended, will be maintained at any specified amount. Should Fungi determine, in its sole discretion, that Buyer is no longer creditworthy, it may suspend deliveries of Product, require prepayment in immediately available funds prior to shipment, or require some form of performance assurance from Buyer. If Fungi grants credit terms, Buyer shall pay interest on any amounts past due at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. In addition, Buyer shall reimburse Fungi for all expenses, costs, and attorney’s fees incurred or expended by Fungi in enforcing any of its rights hereunder and/or collecting any past due sums, whether or not suit is commenced.
3. Delivery; Title. Unless otherwise indicated in a writing exchanged by the parties, all Products are sold F.O.B. Buyer’s business but Buyer will reimburse all Fungi’s shipping expenses for any orders delivered with a total Product purchase price less than $125. Risk of loss or damage and title for Products will pass upon delivery to Buyer at the F.O.B. point.
4. Price; Taxes. Unless otherwise agreed by the parties in writing, Buyer shall purchase the Products from Fungi at the base wholesale price set forth in Seller's published price list in force as of the date that Fungi accepts Buyer's purchase order. Buyer will pay all applicable local, state, federal, use, sales and excise taxes.
5. Inspection. Buyer shall carefully inspect all Products and shipping documents promptly upon delivery of Products. No claim for nonconformity, defect, shortage or damage will be valid or enforceable against Fungi unless Buyer gives Fungi written notice specifying in detail the issue within 72 hours from the date that Buyer receives the Products. Buyer shall supply such reasonable documentation as Fungi may request. Buyer shall be deemed to conclusively accept all Products not rejected in accordance with the preceding sentences. If any Products are non-conforming and provided that the nonconformity was not caused by Buyer or due to misuse or handling after Fungi delivered the Product to Buyer, Fungi will, at Fungi’s option, (a) replace the non-conforming Products at no additional charge to Buyer or (b) reimburse Buyer for amounts Buyer paid for
such non-conforming Products.
6. Vendor Provisions. To the extent Buyer is an approved reseller of the Products, Buyer will (a) follow Fungi’s Reseller Policy as it may be amended by Fungi from time to time, (b) not sell Products to other distributors (resellers who sell to other resellers) (c) not sell outside the United States, (d) not sell using fulfillment by Amazon services, (v) not sell on any internet sites unless specifically approved in writing by Fungi, and (e) not sell via any auction or barter websites (e.g. eBay). Buyer’s right as a reseller is non-exclusive so Fungi may appoint other resellers at any time.
7. Limit of Liability. FUNGI WILL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, CONTINGENT, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR USAGE, COST OF SUBSTITUTE PRODUCTS, ADDITIONAL COSTS INCURRED BY BUYER, OR CLAIMS OF BUYER'S CUSTOMERS OR THIRD PARTIES. FUNGI’S TOTAL LIABILITY TO BUYER FOR DAMAGE OR LOSS ARISING OUT OF, OR IN ANY WAY RELATED TO, THE SALE OF PRODUCTS HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER CAUSE (“CLAIM”) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM RELATES.
8. Intellectual Property. If Buyer operates as a reseller of the Products, then as between Buyer and Fungi, all trademarks, trade names, trade dress, endorsements, icons, designs and logos, as well as any other text or images that appear on packaging or collateral materials, and used in connection with the marketing, promotion and/or sale of Products (collectively, the “Trademarks”) are and shall remain the sole and exclusive property of Fungi. Fungi grants to Buyer the nonexclusive, non-transferable and non-sublicensable right to use the Fungi Trademarks solely in connection with its promotion, marketing, and sale of the Products pursuant to this Agreement, and only in a manner (a) consistent with the maintenance of the Trademarks and (b) that preserves and protects such Trademarks under applicable state and federal law. Buyer shall promote, market, and sell the Products using only the Trademarks. When using Trademarks, Buyer shall comply with all of Fungi’s reasonable requests regarding the appearance of the Trademarks on promotional or marketing materials, including but not limited to with respect to use of the ™ and ® designations.
9. Force Majeure. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.
10. Indemnification. Buyer agrees to defend, indemnify, and hold harmless Fungi and its affiliates, or their respective officers, directors, employees, shareholders, agents, successors, or assigns from all liabilities, claims, and expenses, including attorney's fees, that arise from (a) Buyer's breach of these T&Cs or, if applicable, the Reseller Policy; (b) use of any Products; (c) the negligent or more culpable act or omission of Buyer or its employees or agents; and (d) any failure by a Buyer to comply with any applicable laws.
11. Insurance. If Buyer operates as a reseller of the Products then at all times that Buyer is purchasing Products from Fungi, Buyer shall, at its sole cost and expense, maintain in force policies of insurance in Terms and Conditions of Sale amounts that are customarily carried by resellers of similar products and, in addition, any insurance policies specified by Fungi, including, without limitation, commercial general liability, automobile liability, property damage, products liability, and worker’s compensation. Buyer shall provide Fungi with certificates of insurance, on the request of Fungi.
12. Miscellaneous. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties and Buyer will not have the power to bind Fungi or incur obligations on Fungi’s behalf without Fungi’s prior written consent. If any provision of these T&Cs shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in these T&Cs. None of the provisions of these T&Cs shall be (a) deemed to have been waived unless such waiver shall be set forth in writing signed by Fungi, or (b) subject to modification or waiver by course of performance, course of dealing, or usage of trade.
13. Governing Law; Venue; Attorney’s Fees. These T&Cs shall be governed by, and any dispute arising hereunder shall be determined in accordance with, the laws of State of Washington, without giving effect to conflict of laws principles. Buyer and Fungi irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts sitting in Mason County, Washington. In any suit or action arising out of or related to these T&Cs, the prevailing party shall be entitled to recover the costs and fees (including without limitation reasonable attorney fees) incurred by such party or parties in such suit or action, including without limitation any appellate proceeding.