So Nourished Wholesale Agreement



This Wholesale & Commercial Use Agreement (the “Agreement”) is entered into on May 19, 2024 (the “Effective Date”), between So Nourished, Inc., with current address at 90 State Street, STE 700 Office 40, Albany, NY 12207, (“Company”),  and (“Wholesaler”) with current address at . Company and Wholesaler are sometimes individually referred to herein as a “Party” and collectively as the “Parties”).


WHEREAS, Company is in the business of the development, manufacture and sale of low carb and ketogenic diet products and desires to appoint Wholesaler as an authorized Wholesaler of Company products pursuant to the terms and conditions set forth in this Agreement.


WHEREAS, Wholesaler desires and is willing to promote and sell products that are developed, manufactured and/or sold by Company (“Company Products”) pursuant to the terms and conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of the above declarations and the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:




1.1 The Company hereby appoints Wholesaler as an authorized Wholesaler of Company Products worldwide (the “Territory”).  The Territory may be revised from time to time by the Company with at least thirty (30) days prior notice to Wholesaler.  This appointment is non-exclusive and Company reserves the right to appoint other Wholesalers in the Territory and/or to sell Company Products itself in the Territory.


1.2 Wholesaler must not, under any circumstances, sell, transfer or otherwise distribute Company Products on or to any stores, online platforms, websites, mobile applications or other applications (“Platforms”) owned or operated, directly or indirectly, by any of the Prohibited Businesses listed in Exhibit A, unless Company Products are used within Wholesaler's own products as ingredients and are not sold in Company's original packaging. 


1.3 If Wholesaler is not sure as to whether a particular business qualifies as a Prohibited Business, Wholesaler shall obtain written confirmation from Company as to status of said business, prior to selling, transferring or otherwise distributing any Company Products on any Platforms owned or operated by said business.


1.4 Wholesaler must not, under any circumstances, sell, transfer or otherwise distribute Company Products to any person, unless the person purchasing said Company Products is an individual who is acting for purposes wholly outside his trade, business, craft or profession (“Consumer”).




2.1 Purchase Orders.  Wholesaler shall order products in accordance with the terms and conditions of this Agreement.  Orders for the purchase of Company Products (“Purchase Orders”) may be submitted to Company by Wholesaler via the website owned and operated by Company with the following domain: Company assumes no liability for any delay in filling or shipping any Purchase Orders.


2.2 No Conflicting Terms. The Parties agree that the terms of this Agreement shall prevail over any conflicting terms and conditions in any Purchase Order or any instrument or document provided by the Wholesaler.  Any additional or different terms or conditions in any Purchase Order, or other instrument or response from Wholesaler shall be deemed objected to by Company without need of any further or additional notice of objection, and such additional or different term shall be of no effect or in any way binding upon Company.


2.3 Acceptance of Purchase Order by Company. Company reserves the unconditional right to reject for any reason any Purchase Order, in whole or in part.  Purchase Orders submitted by Wholesaler shall not be binding on Company until the earlier of written acceptance by Company or shipment, and acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Company.  Any automatic or computer-generated response to a Purchase Order by Company’s systems or otherwise shall not be deemed acceptance of a Purchase Order.  Notwithstanding the foregoing, Company reserves the right to refuse, cancel or delay any Purchase Order placed by Wholesaler and accepted by Company when Wholesaler is delinquent in payments or when Wholesaler has failed to perform any of its obligations under this Agreement.


2.4 Invoices and Payment Terms. Company may send Wholesaler invoices via mail, email or facsimile for each shipment of Company Products.  Invoices are due and payable within thirty (30) days from the date of invoice, provided that Company has elected to provide Wholesaler a line of credit, otherwise terms are cash in advance of shipment. Company reserves the right to change or modify payment terms upon thirty (30) days’ notice to Wholesaler.  Wholesaler shall have no right of offset or withholding under this Agreement.  Any amounts not paid by Wholesaler when due to Company shall be subject to interest charges, from the date due until paid, at the rate of one half percent (1.5%) per month or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Company from Wholesaler, for any reason, become past due, Company may at its option and without further notice withhold further shipment of Company Products until all invoices have been paid in full.


2.5 Credit Terms.  Company may, but shall not be obligated to, grant credit terms to Wholesaler.  In the event Company does grant Wholesaler credit terms, Company reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Wholesaler, either generally or with respect to a particular Purchase Order.  Any changes to credit terms and/or any withholding or delay of shipment of Company Products by Company resulting from such changes or credit limitations will not be construed as a cancellation or breach of this Agreement by Company.  Wholesaler agrees to provide Company, upon request, with financial statements and other evidence of corporate and financial standing as Company may reasonably request from time to time during the term of this Agreement to evaluate Wholesaler’s credit risk.


2.6 Prices; Price Reductions.  Company will establish prices for Company Products and shall at all times have the right, which may be exercised in its sole discretion, to increase or decrease the prices of its Company Products.  Such increases or decreases shall be deemed effective upon notice to Wholesaler which shall apply to all Purchase Orders submitted after such notice has been provided and those Purchase Orders which have been already been submitted to but have not yet been accepted by the Company.  Unless expressly stated otherwise in writing, prices do not include, and Company shall not be responsible for, the cost of freight, insurance, or any required federal, state or local sales or other taxes, duties, export or custom charges, VAT charges, brokerage or other fees.


2.7 Minimum Resale Price. Company may establish minimum resale prices (“MRP”) or manufacturer’s suggested retail prices (“MSRP”) for Company Products and shall at all times have the right, which may be exercised in its sole discretion, to increase or decrease said prices. Wholesaler must comply with said MRP or MSRP once Company has published said prices on its website or given notice of said prices, or any increases or decreases of said prices, to Wholesaler pursuant to this Agreement.


2.8 Past Due Amounts.  If any amount due Company by Wholesaler, for any reason, becomes past due, Company may at its option and without further notice withhold further shipments or deliveries to Wholesaler until all invoices are paid in full.  If any indebtedness shall be more than ten (10) days past due, in addition to those additional remedies set forth in this Agreement, Company may at its election terminate this Agreement upon ten (10) days written notice to Wholesaler, and all sums owed by Wholesaler shall become immediately due and payable regardless of the payment terms set forth elsewhere in this Agreement.


2.9 Taxes.  Wholesaler shall be responsible for any national, state or local sales, use, value added or other tax, tariff, duty or assessment levied or imposed by the United States or any foreign governmental authority arising out of or related to any of the transactions contemplated by this Agreement, other than taxes based upon Company’s income.  Wholesaler must pay directly, or reimburse Company for the amount of such sales, use, value added or other tax, tariff, duty or assessment which Company is at any time obligated to pay or collect. 


2.10 Past Audit Claims.  If requested by Company, Wholesaler must provide full and complete records which fully support any discrepancies Wholesaler may claim exist between any amounts the Company claims are due from Wholesaler and the amounts Wholesaler claims are owed to or are due from Company.  Any claim of discrepancies raised by Wholesaler shall be waived by Wholesaler if such claim is not made within six (6) months from the date of invoice on which claim is based.




3.1 Shipment Terms.  Shipment of Company Products under this Agreement shall be F.O.B. Company’s warehouse or any such other related facility.  Company shall use commercially reasonable efforts to ship Company Products to Wholesaler on or before any requested receipt date designated in a Purchase Order.  The Parties agree, however, that shipment of any Company Products ordered from Company under this Agreement may be delayed for a period of time sufficient to allow Company to manufacture and assemble or otherwise acquire the Company Products for Wholesaler, and the Parties further agree that Company shall not be held liable to Wholesaler or any other party for any delay in shipment of any Purchase Order.  Any expense for any special packaging or any special delivery requested by Wholesaler shall be borne solely by Wholesaler.  


3.2 Title and Risk of Loss.  Title and risk of loss will pass F.O.B. Company’s shipping point. Wholesaler will be responsible for the payment of any and all freight, shipment, and insurance charges associated with shipment of the Company Products, even if the order is rejected upon delivery.


3.3 Company’s Right to Delay, Cancel or Allocate.  Notwithstanding Company’s obligations in this Agreement, Company reserves the right to refuse, cancel or delay any shipment to Wholesaler when Wholesaler is delinquent in payments, when payment for a shipment has not been arranged to Company’s reasonable satisfaction, or when Wholesaler has failed to perform any of its obligations under this Agreement.  Should any Purchase Order for Company Products exceed Company’s available inventory, Company shall in its sole discretion determine how to allocate its available inventory without liability to Wholesaler on account of the method of allocation determined or its implementation.


3.4 Acceptance of Shipments.  Wholesaler shall have three (3) days from the date of arrival of the shipment of the Company Products to the shipping location designated by Wholesaler to inspect the Company Products and notify Company of any discrepancies with respect to shipments of Purchase Orders, including, but not limited to any discrepancies in the quantity or quality of the Company Products.  Notices of any discrepancies shall be in writing.  Unless a notice of a discrepancy is reported to Company as required in this Section 3.4, all shipments of Company Products will be deemed accepted by the Wholesaler.




4.1 Company makes no warranties or representations to Wholesaler or any other person with respect to the Company Products or any service provided to Wholesaler or any other person.






5.1 Company’s Intellectual Property.  Subject to the terms and conditions of this Agreement, during the term of this Agreement Company hereby grants to Wholesaler a revocable, non-transferable, non-exclusive, limited license to use Company’s logos, trademarks, and trade names (collectively the “Company Marks”), solely in connection with the marketing, advertisement and sale of the Company Products in the authorized Territory designated in Section 1 of the Agreement.  Such license shall immediately terminate upon the expiration or termination of this Agreement.  Wholesaler shall strictly comply with all standards of use for the Company Marks and must at all times display appropriate trademark and copyright notices as instructed by Company.  All media advertising, printed materials and electronic documents in which a Company Mark is used must be submitted to Company for review in advance and must not be distributed or used in any manner without the prior written approval of Company.  Wholesaler acknowledges and agrees that the Company Marks and other intellectual property provided to Wholesaler by Company, if any, are the sole and exclusive property of Company.  Wholesaler shall not acquire any right, title or interest under this Agreement in any patent, copyright, Company Mark or other intellectual property right of any kind of Company.  No implied license, patent, copyright or other intellectual property right of Company is granted under this Agreement or otherwise.  During the term of this Agreement and thereafter, Wholesaler shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of the Company Marks, patents, copyrights or other intellectual property of Company or the goodwill associated therewith or that will tend to prejudice the reputation of the Company or the sale of any Company Products.




6.1 Confidential Information.  The Wholesaler acknowledges and agrees that during the term of this Agreement, it may receive confidential information from the Company.  “Confidential Information” shall mean (i) information relating to the Company, and its affiliates, products or business including, but not limited to, the business plans, financial records, customers, suppliers, products, product samples, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, Product white paper, and know-how or other intellectual property, that may be at any time furnished, communicated or delivered by Company to Wholesaler, whether in oral, tangible, electronic or other form and (ii) all other non-public information provided by Company to the Wholesaler, but not limited, to financial, technical and business information, and all non-promotional materials furnished by the Company to Wholesaler. 


6.2 Exceptions.  The Wholesaler shall not have any obligations to preserve the confidential nature of any Confidential Information that (a) it can demonstrate by competent evidence was rightfully in the Wholesaler’s possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of the Wholesaler; (c) is rightfully received by the Wholesaler from a third party without a duty of confidentiality; (d) is independently developed by the Wholesaler without use of the Confidential Information; or (e) is disclosed by the Wholesaler with the Company’s prior written approval.  In the event the Wholesaler is requested in any legal action or proceeding to disclose any Confidential Information, the Wholesaler shall, unless prohibited by applicable law, give the Company prompt notice of such request, and shall reasonably assist the Company in its efforts to obtain an appropriate protective order.


6.3 Use of Confidential Information; Standard of Care.  The Wholesaler shall maintain the Confidential Information in confidence and disclose the Confidential Information only to its employees who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are under binding confidentiality obligations no less restrictive as this Agreement.  The Wholesaler shall remain responsible for breaches of this Agreement arising from the acts of its employees.  The Wholesaler shall protect Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information.  The Wholesaler agrees not to use the Company’s Confidential Information for its own purpose or for the benefit of any third party, without the prior written approval of the Company.  In the event Wholesaler becomes aware of any improper use or disclosure of Confidential Information, it shall immediately notify the Company and shall take all available measures to prevent any further misuse or improper disclosure of the Confidential Information.  The Wholesaler shall promptly return or certify destruction of all copies of Confidential Information upon request by the Company at any time or upon the expiration or earlier termination of this Agreement.


6.4 Equitable Relief.  The Wholesaler hereby agrees and acknowledges that any breach or threatened breach of this Agreement regarding the treatment of the Confidential Information will result in irreparable harm to the Company for which there may be no adequate remedy at law.  In addition to other remedies provided by law or at equity, in such event the Company shall be entitled to injunction relief, without the necessity of posting a bond and without having to establish any actual damages, to prevent any breach or further breach of this Agreement by the Wholesaler.




7.1 Wholesaler’s Indemnity Obligations to Company.  Wholesaler hereby agrees to defend, indemnify and hold harmless Company, its affiliates and their respective officers directors, employees and agents from and against any and all Claims (i) arising out of the acts or omissions of Wholesaler, its employees, agents or representatives with respect to its performance of this Agreement, (ii) arising out of the alteration or modification of the Company Products or Company Marks by Wholesaler or its employees, agents or representatives or the use of the Company Products or Company Marks in combination with any other products or marks, or (iii) alleging that the Wholesaler’s Marks infringe or otherwise violate the intellectual property rights of a third party.  Company shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at Company’s expense.










9.1 Termination for Breach.  Either Party may terminate this Agreement at any time in the event of a material breach by the other Party that remains uncured after (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach, thirty (30) days following written notice thereof.  Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party.  Termination shall be in addition to any other remedies that may be available to the non-breaching Party.



9.2 Obligations upon Termination.  Upon termination of this Agreement, Wholesaler shall cease to be an authorized Wholesaler of the Company Products and (i) all amounts of indebtedness owing by Wholesaler to Company shall become immediately due and payable, notwithstanding prior terms of sale, (ii) all unshipped orders may be cancelled by Company without liability, and (iii) Wholesaler shall resell and deliver to Company upon demand by Company, free and clear of all liens and encumbrances, such Company Products as Company may elect to repurchase from Wholesaler (in the original factory packaging).  Within thirty (30) days of termination of this Agreement, Wholesaler shall remove and not thereafter use any sign, display, or other advertising or marketing means containing Company Marks.  In addition, Wholesaler shall immediately destroy all advertising matter and other printed materials in its possession or under its control containing the Company Marks.




10.1 Compliance with Laws; Notification.  Wholesaler represents, warrants and covenants that it shall comply with all applicable international, nation, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the Export Control Act, as may be amended from time to time, in performing its duties hereunder and in any of its dealings with respect to the Company Products.  Wholesaler shall promptly notify Company in the event Wholesaler knows or has reason to believe that any act or refrainment from acting required by or contemplated by this Agreement violates any applicable law, rule or regulation (whether criminal or non-criminal) or if it becomes aware that any Company Products contain a defect which could create a substantial product hazard or an unreasonable risk of serious injury or death.


10.2 Compliance with U.S. Export Laws.  Wholesaler acknowledges and understands that the Company Products may be subject to restrictions upon export from the United States and upon resale after export.  Wholesaler therefore represents and warrants that it shall comply fully with all relevant regulations of the U.S. Department of Commerce, with the U.S. Export Administration Act, and with any other import and/or export control laws or regulations of the United States or the Territory. If requested by Company, Wholesaler must execute and deliver to Company a letter of written assurance concerning technical data and U.S. Export Administration Regulations.  If Company is aware that any of the Company Products are subject to such export laws, it shall so advise Wholesaler.




11.1 Wholesaler represents and warrants to the Company that (i) Wholesaler is authorized to do business in each jurisdiction in which it conducts its business; (ii) its appointment as an authorized Wholesaler and its sale of Company Products under this Agreement does not violate any existing obligations or contracts of the Wholesaler; (iii) it has the full legal right, power, and authority to enter into and perform this Agreement; (iv) If Wholesaler is not a natural person, the individuals signing this Agreement on its behalf are authorized to execute this Agreement and that no further proof of authorization shall be required; (v) Wholesaler is in possession, and shall at all times be in possession of valid Sales Tax Permits issued by all applicable jurisdictions in which Wholesaler does business; and (vi) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.




12.1 No Agency or Partnership.  Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents.  Neither Company nor Wholesaler has the authority to bind the other, to incur any liability or otherwise act on behalf of the other.  Wholesaler shall be solely responsible for payment of its employees’ and personnel’s salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits. 


12.2 Assignment.  Neither this Agreement, nor any right or interest herein, may be assigned by Wholesaler, in whole or in part, without the express written consent of the Company, which consent shall be at Company’s sole discretion.  Company may assign this Agreement to any affiliated company without Wholesaler’s consent, or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of the Company’s assets.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and legal representatives.  There are no third-party beneficiaries to this Agreement. 


12.3 Notices.  Except as otherwise provided herein, any notice or demand which, by the provisions hereof, is required or which may be given to or served upon the parties hereto shall be in writing and, if by email, telegram, telecopy or telex, shall be deemed to have been validly served, given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be deemed to have been validly served, given or delivered upon actual delivery and, if mailed, shall be deemed to have been validly served, given or delivered three (3) business days after deposit in the United States mail, as registered or certified mail, with proper postage prepaid and addressed to the party or parties to be notified at the addresses set forth on the signature page of this Agreement (or such other address(es) as a party may designate for itself by like notice). If to the Company, notices and demands shall be delivered to the attention of the Secretary of the Company or other designated officer or director of the Company.


12.4 Force Majeure.  Neither Party shall liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing Party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.  Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence.


12.5 Governing Law; Venue.  This Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflicts of law of such state, and shall be binding upon the parties hereto in the United States and worldwide.  The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  Any claims or legal actions by one Party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in New York County, New York State.  Both parties hereby submit to the jurisdiction and venue of any such court.  THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. 


12.6 Attorney’s Fees.  If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.


12.7 Collection Expense.  If Company incurs any costs, expenses, or fees, including attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due from the Wholesaler under this Agreement, Wholesaler agrees to reimburse Company for all such costs, expenses and fees.


12.8 Cumulative Remedies.  Except as otherwise provided for in this Agreement, the rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.


12.9 Survival.  The provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement, including without limitation sections 4 (warranty), 6 (confidentiality), 7 (indemnification), 8 (limitation of liability), 10 (compliance with laws) and 12 (general terms) shall so survive.


12.10 Severability.  If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.


12.11. Construction.  The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.  This Agreement shall not be construed more strongly for or against any of the parties hereto, regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof.


12.12. Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. 


12.13. Waiver.  The failure of either Party to enforce any provision of this Agreement, except with respect to waiver as provided in Section 2.9 of this Agreement, shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision in the Agreement thereafter.  No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party.   

12.14 Entire Agreement; Modification.  This Agreement is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written, oral, electronic or otherwise, relating to the subject matter of this Agreement.  This Agreement may be modified only by a written amendment signed by authorized representatives of both Parties. 


Exhibit A: Prohibited Businesses


“Prohibited Businesses” includes, but is not limited to:


  •, Inc., and other Amazon marketplaces (“Amazon”)
  • eBay Inc. (“eBay”)
  • Walmart Inc. (“Walmart”)
  • Target Corporation (“Target”)
  • Whole foods Market Inc. (“Whole Foods”)
  • Thrive Market, Inc. (“Thrive Market”)
  •, Inc. (“Jet”)
  •, Inc. (“JD”)
  • Alibaba Group Holding Limited (“Taobao”; “”)



IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the date first above written.



For and on Behalf of So Nourished, Inc.

TITLE: President

PRINT NAME: Rami Abrams


SIGNATURE: _______________________________________



For and on Behalf of  


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Document name: So Nourished Wholesale Agreement
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April 19, 2019 3:21 pm EDTSo Nourished Wholesale Agreement Uploaded by Rami Abrams - [email protected] IP