Retailer Terms of Sale

1. SCOPE. If an authorized purchaser and/or reseller of the Products (as defined below) (“Purchaser”) has agreed via a separate signed retailer agreement with Therabody, Inc. or one of its affiliates (collectively, “Therabody”) to terms and conditions applicable to this sale and/or the provision of any Therabody branded products (the “Products”) from Therabody, then those terms and conditions (“Specific Terms and Conditions”) shall apply unless the parties agree in writing otherwise. For clarification, the term “Purchaser” includes, but is not limited to, businesses, individuals, and government, institutional and educational purchasers. In the event of a contradiction, the Specific Terms and Conditions shall prevail. If no Specific Terms and Conditions exist, then these Retailer Terms of Sale, together with the terms contained in, or otherwise incorporated by reference, the following: Therabody’s standard purchase order form, credit application form, new account form, and Purchase Requirements (as defined herein), each as amended by Therabody, in its sole discretion and without notice, from time to time, (collectively, these “Terms of Sale”), shall apply to all orders placed by Purchaser (“Order”), irrespective of whether Purchaser accepts these Terms of Sale by a written acknowledgement, by implication, or by acceptance of the Products hereunder. These Terms of Sale and all documents incorporated therein may not be modified by course of dealing or course of performance. Any oral communication between the parties or any response by Purchaser, whether oral or in writing, to modify or supplement these Terms of Sale shall be ineffective unless such response is in writing executed by Therabody. Except where the parties have entered into Specific Terms and Conditions or Therabody otherwise agrees in writing in accordance with the these Terms of Sale, Purchaser agrees that the terms and conditions of these Terms of Sale shall prevail, notwithstanding any contrary or additional terms in any purchase order submitted by Purchaser, EDI or other electronic communications, sales acknowledgement, confirmation or any other document of either party concerning the provision, purchase and/or resale of the Products. In particular, acceptance by Therabody of an Order sent by Purchaser shall not be deemed an acceptance of any conflicting or additional terms and conditions (including, but not limited to, prior versions of these Retailer Terms of Sale. Therabody specifically rejects any different or additional terms and conditions proposed by Purchaser, unless those terms and conditions are mutually agreed upon in writing by the parties.


2. APPOINTMENT; LIMITED LICENSE. Subject to the terms and conditions hereinafter set forth, and for so long as these Terms of Sale shall remain in effect, Therabody hereby appoints Purchaser as a non-exclusive reseller of the Products at the physical retail stores of Purchaser and/or the Purchaser’s website(s), each as set forth in the new account form and agreed to by Therabody in writing (each, a “Location”), and Purchaser hereby accepts such appointment. Purchaser acknowledges that all purchases are made for resale and, subject to Therabody’s express written approval, in-Location use only. It is expressly agreed that Therabody may: (i) appoint other retailers of the Products, including other retailers that may compete with Purchaser; and (ii) sell the Products to other third parties, including distributors and end-users. Subject to the terms and conditions of these Terms of Sale and for the term of these Terms of Sale, Therabody hereby grants to Purchaser a non-exclusive, non-transferable, revocable, royalty-free license to use the Therabody’s logos, copyrights, trademarks, and service marks, including Therabody’s name, logo and promotional materials (collectively, the “Therabody Marks”) in connection with the Products and to the extent necessary to market, promote and to assist with the sale of the Products in approved Locations, as applicable; provided, however, that Purchaser shall follow the instructions of Therabody as to the use or discontinuance of use of such Products and the applicable Therabody Marks and Therabody Materials (as defined below). Further, Purchaser shall not use the Therabody Marks in any of its advertising, communications, publications, or other work without the prior written permission of Therabody. Other than as expressly described herein, Therabody shall in no way be deemed to confer upon Purchaser any right, title, interest or license in any Therabody Marks, patents, designs, or other intellectual property rights Therabody may have covering, or relating to, the Products.  Therabody hereby reserves all such rights. Purchaser further warrants that it will not and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such intellectual property. Purchaser will not (a) do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of Therabody right, title, and interest in and to the Therabody Marks or other intellectual property of Therabody; (b) modify, adapt, alter, or create derivative works from the Products; (c) remove, alter, or obscure in any way any proprietary rights notices of Therabody on or within the Products; or (d) sell any product that Therabody in good faith alleges infringes any Therabody intellectual property. Purchaser agrees that any violation or threatened violation of this Section 2 will cause irreparable injury to Therabody and entitle Therabody to obtain injunctive relief in addition to any other legal remedies.


3. PROHIBITED SALES. The sale of Products by Purchaser to other resellers is strictly prohibited. Therabody encourages authorized resellers to advertise the Products using their website(s), email lists and social media outlets, provided that Purchaser acknowledges and agrees that it shall not sell or actively promote any Products outside of the approved Locations. Purchaser shall not sell Products on or via any third-party marketplace or e-commerce websites, including, but not limited to, Amazon or E-Bay, and not sell any Products to operators of e-commerce websites for sale on such marketplace websites. If Therabody has, in its sole discretion, consented to any such prohibited sales by Purchaser, any such consent must be given and received in writing in advance of the prohibited sales and Therabody may revoke any such consent upon ten (10) days’ prior written notice to Purchaser. Purchaser understands that many of the restrictions in these Terms of Sale are necessary to assure that the Products are marketed and serviced by authorized Therabody dealers and/or retailers. If Purchaser breaches this Section 3, without prejudice to Therabody's other rights and remedies under these Terms of Sale, Purchaser shall pay Therabody, as liquidated damages, and not as a penalty, $1,200 per violation. The parties hereby agree that this liquidated damage provision is commercially reasonable and necessary in light of the anticipated or actual harm caused by a breach of this section, the difficulties of proof of loss and the inconvenience or infeasibility of otherwise obtaining an adequate remedy.


4. RESPONSIBILITY OF PURCHASER. Purchaser agrees that it will: (i) conduct its business in a manner that reflects favorably on the Products and the good name, goodwill and reputation of Therabody, in accordance with any guidelines issued by Therabody from time to time; (ii) comply with all Therabody procedures and processes as are communicated to it by Therabody from time to time, including, but not limited to, the Purchase Requirements; (iii) consult and cooperate with Therabody to establish and implement an effective marketing plan for the sale of the Products; (iv) provide its customers and/or guests, as applicable, with appropriate information regarding the Products and their safe and effective use; (v) maintain a neat and orderly retail operation at each Location with an adequate display of Products, as applicable; (vi) avoid deceptive, misleading, unfair and unethical practices, which are or might be detrimental to Therabody or the Products or in any case contrary to applicable laws, in particular advertising, data protection and competition laws; (vii) make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the Products that are inconsistent with the materials distributed by Therabody; (viii) establish and implement an effective standard operating procedure for the urgent recall of the Products from the market, in accordance with applicable laws and guidelines; (ix) not disparage Therabody, its officers or its owners, or take any action that impairs Therabody’s goodwill or negatively affects the value of Therabody’s business; (x) comply with all applicable laws, regulations and orders and maintain such licenses, authorizations, permits, and all other approvals as required from time to time to perform its obligations under or in connection with these Terms of Sale; and (xi) comply with the then-current Therabody, Inc. Authorized Retailer Policy for the United States and other policies related to the marketing and sale of the Products that may be issued by Therabody and/or amended by Therabody from time to time (“Company Policy(ies)”). Notwithstanding the foregoing, any Company Policy identified by Therabody as a unilateral policy (including any Company Policy related to minimum advertised or minimum resale price), shall not be included in this requirement. Therabody neither seeks nor will it accept any agreement by Purchaser to comply with any unilateral Company Policy. Purchaser shall hold Therabody harmless from any liability arising from the violation or incorrect application of the above listed obligations and representation.


5. PURCHASE AND DELIVERY. Purchaser may order Products from Therabody by submitting an Order pursuant to Therabody’s order system and policies, each as amended by Therabody, in its sole discretion and without notice, from time to time. Any Orders received from Purchaser by Therabody shall be deemed to have been authorized by Purchaser. Such Order(s) will include, at a minimum: (i) unit descriptions and quantities; (ii) shipping destination; and (iii) requested delivery date. All Orders shall be submitted in accordance with Therabody’s instructions and shall be subject to Therabody’s acceptance and these Terms of Sale will exclusively govern and control the provision of Products from Therabody, except as otherwise agreed to in writing by the parties. Therabody reserves the right to accept or decline any order, in whole or in part, for any lawful reason. Therabody shall accept an Order from Purchaser by counter-signing the Order or by delivering the applicable Products to Purchaser, whichever occurs first. Any additional or contradictory terms and conditions contained on Purchaser’s purchase order form will be of no effect, regardless of Therabody’s acknowledgment or acceptance of such Order.

   Therabody shall deliver the Products to Purchaser's address (or such other address specified by the Purchaser in the sales order form and approved by Therabody), at Purchaser’s cost unless expressly set forth otherwise on the accepted Order. Therabody shall, at its discretion, choose the most appropriate shipping method in such cases and will bear the risk of loss or damage, up to delivery or attempted delivery of the Products to Purchaser or a customer (as applicable). If Purchaser arranges freight, risk of loss shall pass to Purchaser upon Therabody’s tender of the Products for shipment. Title to the Products shall pass to Purchaser at the point of shipment, upon the earlier of (x) delivery of the Products to the carrier, or (y) execution of the bill of lading or other shipping document by the freight company, regardless of which Party arranges freight or pays for shipping. Therabody will use commercially reasonable efforts to ship the Products on or before the shipping date agreed upon by the parties. Delivery dates which might be specified in the Order, the Order confirmation, or in any other communication from Therabody (whether oral or in writing) are estimates only. Therabody may make partial shipments of Orders, to be separately invoiced and paid for when due. Any delay in delivery of any instalment will not relieve Purchaser of its obligation to accept the remaining deliveries and Therabody shall not be liable for any failure to ship complete orders or for any shipment delay. Purchaser’s receipt of Therabody’s purchase and order requirements, including those for logistics, routing, EDI, labeling, store-ready and e-commerce ready requirements and other requirements provided from time to time (collectively, “Purchase Requirements”) or Purchaser’s acceptance of these Terms of Sale shall constitute notice to Purchaser and Purchaser’s assent to these Terms of Sale as the terms governing all purchases made from Therabody. All administrative expenses and charges incurred by Therabody and caused by either Purchaser’s violation of the Purchase Requirements or any shipping, routing or invoicing instructions relating to the Order, will be charged to Purchaser. With the exception of Products returned pursuant to the terms of the Limited Product Warranty (as defined in Section 8) or pursuant to statutory rights, Purchaser and its customers shall have no right to return any Products to Therabody. Purchaser is responsible for all risks of loss or damage to the Products after Therabody’s delivery of such Products to Purchaser or upon the tender of the Products for shipment (as applicable), including any and all damage as a result of theft, abuse or neglect, regardless of whether such theft, abuse or neglect is caused by Purchaser, its employees or other third party. Therabody may, without liability or penalty, and without constituting a waiver of any of Therabody’s rights or remedies under these Terms of Sale, cancel any accepted Orders if Therabody determines that Purchaser is in violation of its payment obligations or has otherwise breached these Terms of Sale. All Order cancellations, if not prohibited above, must be approved by Therabody, and may be denied or subject to restocking fees and other charges.



6. PAYMENT AND PRICES. Therabody shall sell the Products to Purchaser at Therabody’s prices set forth in an accepted Order, or as agreed separately in writing by Therabody, which prices are subject to change at any time upon notice to Purchaser. Full payment for the Products shall be made by Purchaser to the Therabody entity set forth in the purchase order without deduction or set-off (statutory or otherwise) and in clear funds in the currency set forth therein, or as agreed separately. At Therabody’s option, shipments may be made on such credit terms as Therabody decides to extend to Purchaser following its review of Purchaser’s credit application, which credit terms shall be payment by ACH or lock box, as directed, net thirty (30) days, unless otherwise approved by Therabody and communicated to Purchaser in writing. Where no credit has been granted to Purchaser or where such credit has been withdrawn, each in Therabody’s absolute discretion, payment will be required in full in cleared funds by credit card or cash advance prior to shipment, as directed. Therabody may, in its sole discretion, change the terms of payment applicable to Purchaser upon notice to Purchaser, which may include, but is not limited to, requesting security of a deferred payment by credit card or other deposits, and charging additional processing fees. If Purchaser fails to pay any amounts in accordance with the terms and conditions hereof, Therabody shall have the right, in addition to any of its other rights or remedies, to suspend any obligations to Purchaser without liability to Purchaser until such amounts are paid in full. Purchaser shall pay Therabody a service charge of one and one-half percent (1.5%) per month (or if such interest is impermissible under applicable law, the maximum allowed under applicable law)) on any past due amounts, and shall reimburse Therabody for its costs (including attorneys’ fees) incurred in collecting any past due amounts. Purchaser agrees to provide Therabody with complete and accurate billing and contact information and agrees to keep it up to date. Purchaser hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Purchaser, its subsidiaries, and affiliates. Therabody reserves the right to assign its receivables to a collections agency as necessary to enforce its rights. Prices shall be exclusive of shipping unless specifically agreed to by Therabody. Purchaser shall pay for, and shall hold Therabody harmless from, all insurance costs. In addition, all prices are exclusive of, and Purchaser is solely responsible for, all taxes with respect to, or measured by, the sale, shipment, use or price of the Products (including interest and penalties thereon). Purchaser shall not, and acknowledges that it will have no right, under these Terms of Sale, any Order, any other agreement, document or law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Therabody, whether under these Terms of Sale or otherwise, against any other amount owed (or to become due and owing) to it by Therabody, whether relating to Therabody’s breach or non-performance under these Terms of Sale, any Order, or any other agreement between Therabody and Purchaser. Therabody shall have the right to discount its Products at any time at its sole discretion.


7. TERM AND TERMINATION. These Terms of Sale shall commence on the date of the first Order placed by Purchaser and continue for an indefinite period of time in accordance with and subject to the below. Either party may at any time terminate these Terms of Sale without cause with a thirty (30) day written notice sent to the other party. Either party may terminate these Terms of Sale at any time in the event of any material breach of these Terms of Sale by the other party, including Purchaser’s failure to pay any sums owing hereunder when due, which is not cured within ten (10) business days after written notice of the same. These Terms of Sale shall terminate automatically without notice to either party hereto if Therabody or Purchaser shall become insolvent, be adjudicated bankrupt, make a general assignment for the benefit of creditors, or take the benefit of any insolvency, reorganization or other relief act or similar law, or if a receiver or trustee be appointed for its property. Therabody may terminate these Terms of Sale at any time by giving notice to Purchaser if any consent, license or authorization held by Purchaser is revoked or modified such that Purchaser is no longer able to comply with its obligations under these Terms of Sale or receive any benefit to which it is entitled. No termination of these Terms of Sale will relieve Purchaser of its obligation to make any payments owing to Therabody. In the event that, following the expiration or termination of these Terms of Sale, Purchaser places one or more Orders and Therabody accepts such Orders, then any such Orders shall be governed by these Terms of Sale notwithstanding the earlier expiration or termination of these Terms of Sale. Subject to Purchaser’s right to sell off granted herein, upon the termination or expiration of these Terms of Sale, (i) all outstanding invoices shall immediately become due and payable; (ii) all rights and licenses granted to either party hereunder will expire, unless expressly designated as surviving; (iii) Purchaser will immediately stop soliciting and accepting orders for the Products; and (iv) each party will promptly return to the other party (or destroy, and upon request provide a certificate of destruction signed by a company officer) all Confidential Information of the other party (if any) in such party’s possession. To the maximum extent allowed by applicable law, Purchaser waives any right it may have to receive any compensation or damages upon any termination of these Terms of Sale which occurs in accordance with its terms. Within thirty (30) days after expiration or termination of these Terms of Sale for any reason, in whole or with respect to any specific Products, Therabody, at its sole option, may repurchase from Purchaser at fair market value price and depending on age of the Product, any and all Products which, in Therabody’s opinion, are commercially usable or saleable that Purchaser has on hand. If Therabody does not elect to repurchase the Products as provided above and termination is not due to the fault of Purchaser, then (notwithstanding the provisions herein) Purchaser shall be given up to sixty (60) days to sell off any remaining inventory of the Products, except as expressly authorized by Therabody in writing. Recognizing that excessive or indiscriminate disposals of excess inventory of the Products may adversely affect the importance and prestige associated with the Therabody brand and Therabody Marks, any sale of the Products during the sell-off period shall be sold only at such places as may be approved in advance and in writing by Therabody.


8. WARRANTIES; LIMITED PRODUCT WARRANTY; WARRANTY DISCLAIMER.Each party hereby represents and warrants: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the full right, power, and authority to enter into these Terms of Sale; and (iii) that these Terms of Sale, which becomes binding upon Therabody’s acceptance of an Order, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. Purchaser represents and covenants: (x) it shall remain in compliance in all respects with all applicable laws and regulations relating to the sale of the Products and the performance of its other obligations hereunder; (y) it shall not alter or modify in any manner whatsoever the Products sold or shipped to Purchaser hereunder, except as permitted herein; and (z) Purchaser shall not make any alterations to any of the packaging or labeling of the Products (except as expressly authorized by Therabody in writing), or make any disease claims, health claims, or structure/function claims about the Products, that would violate or be prohibited by applicable law in Purchaser’s marketing, advertising, distribution, sale, or any written or verbal communication related to the Products. Except as otherwise expressly provided in a separate, signed, written agreement between Purchaser and Therabody, or as expressly provided herein, Therabody solely warrants to the Purchaser that the Products shall materially conform to Therabody’s published specifications for such Products at the time of manufacture (the “Limited Product Warranty”). The Limited Product Warranty provided herein is valid from the original date of delivery of such Products by Purchaser for the periods specified for each Therabody Product on the Therabody website. The Limited Product Warranty is also valid only when the Products are used by properly trained individuals and not otherwise subject to abuse, misuse, neglect, negligence, improper testing, improper handling, improper operation, or use contrary to the instructions issued by Therabody with the Products. It is Purchaser’s responsibility to determine if a Therabody Product is suitable for a specific purpose and to apply the necessary safety precautions. Purchaser’s exclusive remedies under this Limited Product Warranty are, at Therabody’s option, repair or replacement of the Product that failed to conform to the warranty above, or at Therabody’s option, a credit for the amount paid to Therabody for any non-conforming Product. In case of delivery of a damaged or defective Products under the Limited Product Warranty, Purchaser shall notify Therabody within five (5) business days from delivery of that Product and Purchaser will be responsible for return of the Products to Therabody for repair or replacement pursuant to a return merchandise authorization (“RMA”) issued by Therabody and in accordance with Therabody’s return procedures (subject to receipt by Therabody of satisfactory evidence of such damage or defect). Therabody's liability in respect of damaged or defective Products shall be limited to the remedies specified in this Section 8. For the avoidance of doubt, any Products returned to Therabody not pursuant to an RMA shall be returned to Purchaser at Purchaser’s cost. The foregoing states Purchaser’s sole and exclusive remedy, and Therabody’s entire liability, for breach of warranty of purchased Products under these Terms of Sale.
   

   EXCEPT AS SET FORTH ABOVE, THE PRODUCTS, THERABODY MARKS, INTELLECTUAL PROPERTY AND/OR ANY THERABODY TRAINING INFORMATION, TECHNICAL ADVICE, DOCUMENTATION AND INFORMATION, MARKETING MATERIALS AND/OR DIGITAL ASSETS (THE “THERABODY MATERIALS”) ARE PROVIDED STRICTLY “AS IS”, AND THERABODY MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE PRODUCTS, THERABODY MARKS, INTELLECTUAL PROPERTY AND/OR THERABODY MATERIALS. IN PARTICULAR, ANY AND ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. THERABODY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, THERABODY DOES NOT ENSURE CONTINUED AVAILABILITY OF THE PRODUCTS, THERABODY MARKS, INTELLECTUAL PROPERTY OR THERABODY MATERIALS. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS OF SALE IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION OTHER THAN THOSE SET FORTH ABOVE IN THIS SECTION 8.

   
   
9. INDEMNITY AND LIMITATION OF LIABILITY.Each party (“Indemnitor”) hereby agrees to defend, indemnify, and hold the other party, and their affiliates and their respective officers, directors, agents, representatives and employees (collectively “Indemnitee(s)”), harmless against all costs, expenses, and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against any of the Indemnitees based on: (i) breach of any representation or warranty set forth herein; (ii) any fraud, negligence or willful misconduct by the Indemnitor (including their officers, directors, agents, representatives and employees); or (iii) agreements to indemnify otherwise stated herein. Each Indemnitor’s obligations under this Section 9 shall be subject to (x) the Indemnitee providing the Indemnitor with prompt written notice of any action, claim or proceeding to which this section may apply; (y) cooperating with the Indemnitor (at the Indemnitor’s expense) in the defense and settlement of any such action, claim or proceeding; and (z) granting the Indemnitor sole control over the defense or settlement of any such action, claim or proceeding. Notwithstanding the foregoing, any settlement that would impose a material affirmative obligation on, or materially diminish the rights of, an Indemnitee will require the prior written consent of such party, such consent not to be unreasonably withheld or delayed, and an Indemnitee shall have the right to be represented by counsel of its own choice at its own expense.

   Each party (“Indemnitor”) hereby agrees to defend, indemnify, and hold the other party, and their affiliates and their respective officers, directors, agents, representatives and employees (collectively “Indemnitee(s)”), harmless against all costs, expenses, and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against any of the Indemnitees based on: (i) breach of any representation or warranty set forth herein; (ii) any fraud, negligence or willful misconduct by the Indemnitor (including their officers, directors, agents, representatives and employees); or (iii) agreements to indemnify otherwise stated herein. Each Indemnitor’s obligations under this Section 9 shall be subject to (x) the Indemnitee providing the Indemnitor with prompt written notice of any action, claim or proceeding to which this section may apply; (y) cooperating with the Indemnitor (at the Indemnitor’s expense) in the defense and settlement of any such action, claim or proceeding; and (z) granting the Indemnitor sole control over the defense or settlement of any such action, claim or proceeding. Notwithstanding the foregoing, any settlement that would impose a material affirmative obligation on, or materially diminish the rights of, an Indemnitee will require the prior written consent of such party, such consent not to be unreasonably withheld or delayed, and an Indemnitee shall have the right to be represented by counsel of its own choice at its own expense.



10. CONFIDENTIAL INFORMATION.As used herein, “Confidential Information” includes, but is not limited to, any and all information given to or acquired by Purchaser in the course of these Terms of Sale relating to Therabody; its business strategy, customers, pricing, information about future product releases, marketing plans, new products and their design; know-how or trade secrets which is obviously confidential in nature or has been identified as confidential; and the Products. Purchaser shall not divulge any Confidential Information to third parties for three (3) years from the date such Confidential Information is disclosed or if longer, three (3) years after termination of the Agreement. Upon termination of these Terms of Sale shall return to Therabody all Confidential Information in written form, provided that the Purchaser’s obligations hereunder shall survive and continue in effect with respect to any Confidential Information that is a trade secret under applicable law until such time that the information is no longer a trade secret. The obligations under these Terms of Sale will be effective retroactively to the date Confidential Information was first made available to Purchaser. This obligation of confidentiality shall not apply to any information which is or later becomes public knowledge through no fault of Purchaser, or which is subsequently acquired by Purchaser from sources under no obligations of secrecy, or which is reasonably required to be disclosed by any law or court order and shall survive after termination of these Terms of Sale.


11. FORCE MAJEURE. If performance of these Terms of Sale, or any obligation hereunder (other than the obligation to pay) is prevented, restricted, or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party (including, without limitation, export or import restrictions or an inability to obtain export or import licenses; pandemic or epidemic; strike or combination of workmen or other labor disturbances (excluding a party’s own workforce); any other cause whether or not of a similar nature) (“Force Majeure”), the party so affected, upon giving prompt notice to the non-affected party, will be excused from such performance to the extent of such prevention, restriction, or interference. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Agreement by written notice to the other party except for any delays caused by global supply chain issues where the period is extended to 120 days. Force Majeure shall not excuse Purchaser’s failure to pay for delivered Products.


12. GENERAL TERMS. These Terms of Sale can be modified only in writing signed by an authorized representative of the party against which such modification is asserted. Purchaser agrees that a third-party sales representative of Therabody is not authorized to modify these Terms of Sale. Therabody and Purchaser agree to maintain appropriate insurance (including, any insurance coverage required by law) to cover their respective risks and obligations with respect to manufacture, sale and use of the Products with coverage amounts commensurate with levels in their respective markets. By placing an Order, Purchaser agrees and understands that Therabody may store, process, and use data collected from an Order form or phone/email Order for the purposes of processing the Order. Therabody may also share such data globally within the Therabody group of companies. All Therabody companies shall protect Purchaser’s information in accordance with the Therabody Privacy Policy. These Terms of Sale will be governed in all respects by the laws of the State of California without regard to principles of conflicts of law. Any dispute concerning the subject matter of these Terms of Sale, or the breach, termination or validity thereof (a “Dispute”) will be settled exclusively in accordance with the procedures set forth herein. The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. The parties will have one (1) month from the date of notice to attempt to settle the Dispute. If, and to the extent that, any Dispute has not been settled in accordance with the foregoing, the Dispute shall, upon the filing of the request for arbitration by either party, be referred to and finally determined by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce. The arbitral tribunal shall consist of one (1) arbitrator. The place of arbitration shall be Los Angeles, California unless otherwise agreed to in writing between the parties. The language to be used in the arbitral proceedings shall be English. The arbitration award shall be final and binding, and judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the above provisions relating to arbitration above, nothing in these Terms of Sale shall prevent either party from applying to a court for interim or equitable relief where the circumstances dictate that a party needs immediate protection to prevent damage to its intellectual property rights, goodwill, Confidential Information or otherwise. To the extent a claim is filed by Therabody in accordance with this paragraph, Purchaser hereby submits itself to the exclusive jurisdiction and venue of the courts of the County of Los Angeles and/or Federal Courts of the United States for purposes of any such action, waives any and all defenses relating to jurisdiction and venue (including, but not limited to, forum nonconvienens) and agrees that any service of process may be effected by delivery of the summons and complaint to the addresses set out in the notices section above. Purchaser waives any right to assert any claims against Therabody as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OF SALE CONTEMPLATED HEREBY. The relationship between the parties is that of independent contractors. Nothing contained in these Terms of Sale shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Any notice or other communication required or permitted hereunder shall be hand-delivered or mailed via express carrier, postage prepaid to the recipient party at its address as first above written or as changed by notice given hereunder and shall be deemed given upon the earlier of receipt or three (3) days after mailed. In addition, Purchaser shall send a copy of all notices by email to legal@therabody.com and such other email address(es) as notified by Therabody to Purchaser from time to time. Failure to enforce any provision of these Terms of Sale by either party shall not be construed as a waiver of that provision. If any provision of these Terms of Sale is deemed invalid, illegal, or incapable of being enforced under any applicable rule of law or public policy, the remainder of these Terms of Sale shall be valid and otherwise enforceable to the fullest extent permitted by law. Purchaser shall not assign any Order, or any interest therein, without the prior consent of Therabody. Any actual or attempted assignment without Therabody’s written consent shall entitle Therabody to cancel such Order upon notice to Purchaser. These Terms of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, representatives, successors and permitted assigns. All provisions regarding indemnification, intellectual property ownership, warranty, liability, and limits thereon, and confidentiality shall survive the termination of these Terms of Sale.