Qualia Wholesaler Agreement

This Wholesaler Agreement (this "Agreement") is entered into as of the Effective Date (set forth above) by and between Qualia LLC, a Wyoming limited liability company, with its principal offices located at 179 Calle Magdalena, Suite 100, Encinitas, CA 92024 USA ("NHC"), 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 NHC and that is accepted by NHC are the only terms that govern the sale of Goods by NHC to Wholesaler. For purposes of this Agreement, (i) the term "Goods" means those products NHC elects to make available for purchase by Wholesaler from time to time in NHC's sole and absolute discretion and (ii) "Purchase Order" means the purchase order for Goods submitted by Wholesaler to NHC 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 NHC from time to time and that are accepted by NHC, 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 following url:________ set forth above ("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 NHC for damages for any violation of this Section 2 and to also reimburse NHC for the purchase of Goods by NHC from any person or entity to which or through which Wholesaler has sold or transferred any Goods in violation of this Agreement.
3. Orders Procedure.
   1. Wholesaler shall submit all Purchase Orders to NHC in writing via such online inventory and order management portal made available by NHC to Wholesaler for such purpose, facsimile, e-mail or US mail that NHC 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. NHC may, in its sole discretion, accept or reject any Purchase Order. NHC 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 NHC unless accepted by NHC as provided in this Agreement.
4. Shipment.
   1. Unless expressly agreed to by the parties in writing and signed by an authorized representative of NHC, NHC shall select the method of shipment of and the carrier for the Goods. NHC 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 NHC, NHC shall ship the Goods using NHC's standard methods for packaging and shipping the Goods. All prices for Goods are FOB (NHC's principal place of business in Encinitas, California) (the "Delivery Point"). Wholesaler shall pay for all shipping charges and insurance costs, if any, from the Delivery Point to any other address to which such Goods are requested to be shipped.
5. Title and Risk of Loss. Title and risk of loss passes to Wholesaler upon delivery of the Goods to the common carrier at the Delivery Point.
6. Price. The prices for Goods sold under this Agreement shall be per NHC'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 NHC harmless against any liability or responsibility for any such charges, costs, taxes, duties and tariffs.
7. Payment Terms.
   1. Wholesaler shall pay all amounts due at the time a Purchase Order is accepted by NHC and the Goods are ready to be shipped. Goods will not be shipped unless payment therefor is received by NHC. 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 NHC for all costs incurred in collecting any payments owed to it, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which NHC does not waive by the exercise of any rights hereunder), NHC 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 NHC, whether relating to NHC's breach or otherwise and whether under this Agreement, any Purchase Order, any other agreement between Wholesaler or any of its affiliates and (NHC, or otherwise.
   4. As collateral security for the payment of the purchase price of the Goods, Wholesaler hereby grants to NHC 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.
8. Inspection of Nonconforming Goods.
   1. Wholesaler shall inspect the Goods as follows: (i) if the Goods are collected by Wholesaler or on its behalf at NHC'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 NHC in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by NHC. "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 NHC of any Nonconforming Goods, NHC 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 NHC and at NHC's expense, but at Wholesaler's risk of loss, the Nonconforming Goods to NHC to such address as may be designated by NHC. NHC shall reimburse Wholesaler for such shipping expense. If NHC exercises its option to replace Nonconforming Goods, NHC shall, after receiving Wholesaler's shipment of Nonconforming Goods, ship to Wholesaler the replaced Goods to the Delivery Point. If NHC 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, NHC 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.
9. 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 NHC under this Agreement and may receive a refund for the purchase price paid for such Goods. NHC shall, after receiving any Goods returned to it in compliance with this Section 9, refund to Wholesaler the purchase price paid by Wholesaler to NHC 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 NHC 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. NHC 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 NHC, whether either liability is matured or unmatured, is liquidated or unliquidated or arises under this Agreement.
10. Representations and Warranties.
    1. General. Wholesaler represents and warrants to NHC 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 signature is set out at the end hereof has been duly authorized by all necessary action of Wholesaler; and (d) when executed and delivered by each of NHC 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 NHC that is in full force and effect.
    2. Limited Product Warranty. Subject to the provisions of this Section 10, Wholesaler may extend NHC's "90-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"). During the 90-day Warranty Period, such Consumer may return the Good to Wholesaler or NHC and receive a full refund. If Wholesaler issues such a refund, NHC shall credit the purchase price paid by Wholesaler toward future Purchase Orders. Claims must be received no later than 10 days following the expiration of the Warranty Period. SECTION 10(b) SETS FORTH WHOLESALER'S SOLE REMEDY AND NHC'S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE GOODS.
    3. Warranties Disclaimer; Non-reliance. EXCEPT FOR THE LIMITED WARRANTY, (A) NEITHER NHC 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 NHC, OR ANY OTHER PERSON.
11. 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 NHC; (b) have sufficient knowledge of the industry and competitive products; (c) submit all promotional materials to NHC for approval prior to use; (d) not make any misleading or untrue statements concerning NHC or the Goods; (e) promptly notify NHC of any complaint or adverse claim; and (f) not resell Goods to any government entity without express written approval from NHC.
12. Limitation of Liability. IN NO EVENT SHALL NHC BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE. IN NO EVENT SHALL NHC'S AGGREGATE LIABILITY EXCEED THE TOTAL OF THE AMOUNTS PAID TO NHC FOR THE GOODS SOLD HEREUNDER DURING THE IMMEDIATELY PRECEDING SIX MONTH PERIOD.
13. Intellectual Property. NHC hereby grants to Wholesaler a non-exclusive, non-transferable and non-sublicensable license to use NHC's Trademarks only during the term of this Agreement solely in connection with the promotion and resale of the Goods. All Intellectual Property Rights are the sole property of NHC. On termination, Wholesaler shall immediately cease all use of NHC's Trademarks.
14. Compliance with Law. Wholesaler shall comply with all applicable laws, regulations and ordinances related to the purchase and resale of Goods.
15. Termination. Either party may terminate this Agreement upon 30 days prior written notice. NHC may terminate immediately if Wholesaler: (i) fails to pay any amount when due; (ii) has not complied with this Agreement; or (iii) becomes insolvent.
16. Option to Repurchase. Within 10 days after termination, Wholesaler shall submit a schedule of all Goods then owned. NHC shall have the right, but not the obligation, to buy back all or a portion of such Goods at the lower of cost or prevailing price.
17. Waiver. No waiver by either party is effective unless explicitly set forth in writing and signed by such party.
18. Confidential Information. All non-public, confidential or proprietary information of NHC is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by NHC in writing.
19. Force Majeure. NHC shall not be liable for any failure or delay caused by circumstances beyond its reasonable control.
20. Indemnification. Wholesaler shall indemnify and hold harmless NHC against any losses arising from Wholesaler's acts or omissions as a reseller of the Goods.
21. Assignment. Wholesaler shall not assign any rights or delegate obligations without NHC's prior written consent.
22. Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto.
23. Amendment and Modification. This Agreement may only be amended in a writing signed by an authorized representative of each party.
24. Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of California. Any legal proceedings shall be in the federal or state courts in Los Angeles County, California.
25. Notices. All notices must be in writing and addressed to the other party.

    Notice to NHC:
    Attention: James Schmachtenberger
    E-mail: [email protected]

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

26. Severability. If any term is invalid, illegal or unenforceable, it shall not affect any other term of this Agreement.
27. Survival. Sections which by their nature should apply beyond their terms will remain in force after termination.
28. Cumulative Remedies. All rights and remedies are cumulative and not exclusive.
29. Counterparts. This Agreement may be executed in counterparts.
30. No Franchise or Business Opportunity Agreement. The relationship between the parties is that of independent contractors. Nothing in this Agreement creates a franchise, partnership, or employment relationship.
31. Acknowledgement of Receipt. By signing this agreement, Wholesaler acknowledges that a copy of the NHC MSRP policy has been received.

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