Wholesale Terms and Conditions
Last Updated: October 18, 2023Back to Policies
THESE TERMS AND CONDITIONS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THIS DOCUMENT CAREFULLY.
1.6 We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Website, with or without notice. You agree that we shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Website, in whole or in part, or of any service, content, feature or Product offered through the Website.
2. Your Account
2.1 You will be required to register for an account with SIV in order to access or use parts of the Website. Your account gives You access to the Website and functionality that We may establish and maintain from time to time and in Our sole discretion. You must register through the Website by completing the applicable registration form to create Your account with a unique username and password.
2.2 By creating an account, You agree:
(a) that You are able to and have the appropriate authority and authorization to create a binding agreement with SIV;
(b) to provide true, accurate, current and complete information about Yourself when we request it;
(c) to maintain and promptly update this information to keep it true, accurate, current and complete to the extent the Website permit such updates; and
2.3 You must notify SIV immediately of any unauthorized use of Your credentials or any other breach of security. Even if You notify us, You will be responsible for any activities that occur using Your access credentials, including any charges resulting from the use of Your account. SIV will not be liable for any losses or damages caused by any unauthorized use of Your account, financial or otherwise.
3.2 In order to protect the integrity of SIV’s business and that of its carefully selected retailers, SIV shall determine from time-to-time certain minimum orders on new and existing accounts, yearly minimum orders required of its retailers to remain an authorized retailer of the Products, as well as certain promotional considerations offered to performing retailers intended to enhance their ability to sell the Products (for example, free shipping on orders meeting certain sales minimums). These order minimums, yearly minimums and promotional considerations will be communicated to You at any time after You set up Your account and may be changed from time to time at the discretion of SIV. Failure to meet minimum order requirements or yearly minimum order amounts may subject Your account with SIV to termination.
4. Delivery; Payment; Risk of Loss.
4.1 SIV will, at Your expense, ship the units of Product ordered as soon as practicable to You at the address for shipments provided to SIV through the Website; provided, however, that, in the event that SIV is unable to ship the units ordered within seven (7) business days of SIV’s receipt of Your order through the Website, SIV shall so inform You prior to the end of said seven (7) business day period and You shall have the option of canceling such order.
4.2 Unless otherwise agreed to in advance by SIV, You will pay for the units of Product ordered in full prior to shipment by such payment methods as are accepted from time to time on the Website. Cash on delivery (C.O.D.) orders are not permitted.
4.3 If requested by SIV, You will return to SIV, at SIV's expense, any damaged or defective units of Product or packaging, and, if requested, You will furnish SIV with an affidavit by one of Your executive officers as to any units of Product which are not delivered. SIV will promptly replace at its expense (i) any damaged or defective units of Product, or (ii) any damaged or defective packaging for any units of Product which are not damaged or defective. In lieu of returning damaged or defective units of Product or packaging to SIV, SIV may request, and You shall provide, photos as a means of documenting any damage that may have been caused by a common carrier and such other reasonable evidence as SIV may reasonable request.
5. Sales by You; Diversion and Counterfeit Goods; Intellectual Property; Minimum Advertised Price (MAP)
5.2 SIV is the owner of a number of trademarks including but not limited to the marks that appear on the Website (“SIV’s Trademarks”). SIV has expended and continues to expend considerable resources to develop, market and promote the Products under SIV’s Trademarks. As a result, consumers and the commercial trade have come to recognize and rely upon SIV’s Trademarks as brands exclusively belonging to SIV and SIV has built substantial goodwill in SIV’s Trademarks.
5.3 SIV hereby grants YOU the non-exclusive right to sell the Products only in those locations specifically consented to by SIV after you set up your account (hereinafter referred to as the “Authorized Sale Location(s)”). YOU shall not sell the Products elsewhere and shall not sell the Products or otherwise make the Products available to anyone else to sell or otherwise exploit elsewhere (including, without limitation, on AMAZON®, EBAY®, or other online retail sites).
5.4 SIV only sells the Products directly to its own customers and through authorized retailers. Goods marketed as SIV’s Products by an unauthorized dealer have either been diverted without authorization from SIV or are counterfeit. These unauthorized dealers may operate online (for example, on AMAZON® or EBAY®) or from a brick and mortar location. Counterfeit and diverted goods may be, among other things, damaged, expired, tampered-with, made with unknown or unsafe ingredients and generally unsafe for use. SIV actively utilizes procedures to detect and stop counterfeit and diverted goods that affect SIV’s Trademarks. If YOU become aware of any such attempts by others to counterfeit or divert SIV’s Products, YOU shall notify SIV by sending an email to firstname.lastname@example.org.
5.6 You agree that You will not sell Products past the date of expiration, as determined by SIV, and that You will not use, alter or modify any labeling, packaging or advertisements in any manner that is not expressly authorized by the SIV. In no event shall You sell Products that have been in Your possession for more than eighteen (18) months following receipt thereof from SIV. Should You have any questions about whether any such activity concerning the Products or SIV’s Trademarks is authorized or unauthorized, You should contact SIV before undertaking any such activity.
5.7 You shall not participate in any activity, scheme or artifice to counterfeit or divert SIV’s Products or to infringe or misuse SIV’s Trademarks. Further, should You become aware of any such activity, scheme or artifice, You shall report the same to SIV by sending an email to email@example.com describing the facts and circumstances known to You in sufficient detail to assist SIV in pursuing cessation of the same.
5.8 You will comply with all applicable laws, rules and regulations in selling the Products and in otherwise dealing with the Products.
5.9 You will deliver the Products to the customer in their original container or containers, including, without limitation, any outer boxes containing the Products, and shall not repackage any of the Products for resale.
5.11 All Products have a published Minimum Advertised Price (MAP) which is no less than twenty five percent (25%) off of the advertised retail price on the Website.
6. SIV's Warranty; Consequential Damages Excluded; Limitation of Liability
7.1 You agree to defend, indemnify and hold harmless SIV and its affiliates, subsidiaries, agents, licensors, managers, members, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
(i) Your use of and access to the Website, including any data or content transmitted or received by You;
(iii) Your violation of any third-party right, including without limitation any right of privacy, right of publicity or intellectual property rights;
(iv) Your violation of any applicable law, rule or regulation;
(v) any inaccurate information that is submitted via Your account; or
(vi) any other party’s access and use of the Website with Your unique username, password, or other appropriate security code. You also agree to indemnify SIV for any loss, damages, or costs, including reasonable attorneys’ fees, resulting from Your use of any data gathering and extraction tools or any other action You take that imposes an unreasonable burden or load the infrastructure of the Website.
10.2 SIV’s notice to You will be sent to You based on the most recent contact information that You provided to SIV. But if such information is not current, then SIV will satisfy its obligation to provide notice by sending its notice to You to Your most recent email address provided in your account. Your notice to SIV must be sent via email to: firstname.lastname@example.org.
11. Amendment and Waiver; Severability.
12. Waiver of Injunctive or Other Equitable Relief.
12.1 IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES DIRECLTY OR INDIRECTLY IN CONNECTION WITH THE PRODUCTS OR YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. TO THE GREASTEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY AND ALL RIGHTS TO SEEK AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND AGAINST SIV.
13. Dispute Resolution.
13.1 PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH SIV AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
13.5 Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) Rules (collectively, “Rules”), except as modified herein, and the arbitration will be administered by the AAA.
13.7 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST SIV, THEN YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13.2) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 13.2; or (b) filing for arbitration as set forth in Section 13.6.
13.8 The foregoing provisions of this Section 13 will not apply to any legal action taken by SIV to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to SIV’s intellectual property rights (including any that SIV may claim are in dispute), SIV’s operations, and/or SIV’s Products.
13.9 Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in Wayne County, Michigan. Accordingly, You and SIV consent to the exclusive personal jurisdiction and venue of such courts for such matters.
14.1 You acknowledge that as a result of Your dealings with SIV, that You may be privy to certain confidential information of SIV, including but not limited to wholesale pricing, business processes, sales models, strategies, research, algorithms, software, operational data, policies, methods, plans, agreements, contracts, financial data, customer databases and information, vendor information, trade secrets, know-how, and other documents (collectively the “Confidential Information"). You understand that the above list is not exhaustive, and that Confidential Information also includes other Confidential Information that is marked or otherwise identified or treated as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidentiality obligations shall not extend to information that is in the public domain, has become public domain other than by Your breach of confidentiality, that is lawfully received from third parties, or to the extent You are held to disclose information under the law or by governmental or judicial order, in which case You shall notify SIV immediately and cooperate in seeking a protective order. You agree to, in perpetuity, hold SIV’s Confidential Information in strictest confidence, and You shall not disclose Confidential Information to any third party without prior written consent from SIV. Nothing in this agreement conveys title, rights, or interest to You in any of SIV Confidential Information or intellectual property rights.
15. Section Headings.