VHP Disclaimer
VHP Program Agreement
VHP Program Agreement BEFORE YOU CHOOSE TO “AGREE” AND PARTICIPATE IN OUR VHP PROGRAM, WE ASK THAT YOU CAREFULLY READ THIS AGREEMENT (THE “AGREEMENT”) WITH RESPECT TO THE VERY HEALTHY PERSON (VHP) PROGRAM (“VHP PROGRAM”). BY CHOOSING TO “AGREE”, YOU ARE HEREBY (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY TO BIND YOURSELF TO THE TERMS OF THIS AGREEMENT; AND (2) CONSENTING TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT REPRESENT THE FOREGOING, PLEASE "DECLINE" TO PARTICIPATE AND ENTER INTO THIS AGREEMENT, IN WHICH CASE YOU ARE NOT ELIGIBLE TO, AND WILL NOT, JOIN OR PARTICIPATE IN THE VHP PROGRAM. This Agreement is a binding legal contract between you and Dr. Chao Natural Foods Inc., a company formed in the State of California in the United States of America (“Dr. Chao”) and establishes how you may participate in the VHP Program and the terms and conditions of such Program. For the purposes of this Agreement, participants in the VHP Program are referred to as “you” or “your” and Dr. Chao is referred to as the “Company”, “we”, “us” or “our”. YOU ARE STRONGLY ENCOURAGED TO CAREFULLY READ THE CONTENTS OF THIS AGREEMENT IN ITS ENTIRETY AND YOU EXPLICITLY REPRESENT TO US THAT IN ACCEPTING THIS AGREEMENT AND JOINING THE VHP PROGRAM THAT YOU HAVE THOROUGHLY READ THIS AGREEMENT. IN ORDER TO AVOID ANY MISUNDERSTANDINGS OR CONFUSION, ANY QUESTIONS, COMMENTS OR CONCERNS REGARDING THE VHP PROGRAM OR THE AGREEMENT SHOULD BE DIRECTED TO THE COMPANY AS SOON AS POSSIBLE. The parties acknowledge the presence and sufficiency of the consideration for the Agreement hereunder. Furthermore, you hereby expressly agree and acknowledges that there is a real possibility that based on your own spending, the spending of other VHP Program members or otherwise, you may not actually earn any Cash Reward or Revenue-Sharing under the Agreement. Please note that the Company has the sole and absolute right to interpret and administer any and all rules and regulations associated with the VHP Program. Any failure to follow VHP Program rules or regulations, any abuse of VHP Program privileges, any conduct detrimental to the interests of the Company, or any fraud, misrepresentation of any information furnished to us or our affiliates by you, or anyone else acting on your behalf, may result in (without limitation) the termination of your participation in the VHP Program, the cancellation of accrued Cash Rebates, Revenue-Sharing, or all of the above. Restrictions Participation in the VHP Program is only open to those individuals that are: (a) 18 years of age or older; and (b) residents of the United States of America. IF YOU ARE EITHER UNDER THE AGE OF 18 OR ARE NOT A RESIDENT OF THE UNITED STATES OF AMERICA, PLEASE DO NOT PARTICIPATE IN THE VHP PROGRAM OR ACCEPT THIS AGREEMENT. THE VHP PROGRAM IS ALSO VOID WHERE PROHIBITED OR OTHERWISE RESTRICTED BY APPLICABLE LAW AND IS ALSO VOID FOR ANYONE THAT IS EITHER UNDER THE AGE OF 18 OR IS A NON-RESIDENT OF THE UNITED STATES OF AMERICA. The VHP Program is maintained for the benefit and participation of individual members only. Accrued Cash Rebates and Revenue-Sharing do not constitute property of the VHP member and are not transferable (i) upon death, (ii) as part of a domestic relations matter, or (iii) otherwise by operation of law. Eligibility You become eligible to participate in the VHP Program each Fiscal Year only after you have purchased an aggregate total of one hundred dollars ($100) or more of Purchase Value. For the purposes of determining eligibility, the Company’s products must be purchased through a bona fide online or offline retailer for Company’s products. For the purposes of determining eligibility for any Fiscal Year, all purchases of Company products made by you during that Fiscal Year may be aggregated together to determine if the $100 Purchase Value threshold has been reached (i.e. you may combine purchases from different retailers). IF YOU HAVE NOT PURCHASED AN AGGREGATE TOTAL OF $100 IN PURCHASE VALUE FOR ANY GIVEN FISCAL YEAR, YOU ARE NOT ELIGIBLE TO PARTICIPATE IN THE VHP PROGRAM FOR THAT FISCAL YEAR UNTIL SUCH TIME AS YOU HAVE $100 OF AGGREGATE PURCHASE VALUE FOR SUCH FISCAL YEAR. For the purposes of this Agreement, the following definitions shall apply: “Fiscal Year” shall be defined as November 1 to October 31 of any given year “Purchase Value” shall mean the net selling price of Company products after deductions for returns, commissions, discounts, coupons, promotions and other customary offsets. Purchase Value shall not include sales or excise taxes, fees and mark-ups. Original receipts are required for all parts of the VHP Program including to confirm eligibility, obtain Cash Rebates and Revenue-Sharing. Duplicated, photocopied or altered receipts sent to us will not be accepted or acknowledged. You are solely responsible for any delayed, postage due, illegible, mutilated, late, lost, incomplete, stolen or misdirected mail requests. Joining VHP Once you become eligible to participate in the VHP Program for a given Fiscal Year, you may join the VHP Program and become a member (“VHP Member”) for that Fiscal Year by mailing in a completed VHP Program Application along with your original receipt(s) from that Fiscal Year showing the date(s), Company products purchased and prices paid for such products. Please mail the requested information to our attention at: Dr. Chao Natural Foods, Inc., VHP Members Service, P.O. Box 1869, Claremont, CA 91711-1869. Status as a VHP Member is good during the course of a Fiscal Year (i.e. up to one (1) year if you join on the first day of that Fiscal Year) and expires at the end of the Fiscal Year. In most cases, when you qualify for VHP Program eligibility, you will likely be in the VHP Program for less than one year. Each year, you must re-qualify in order to gain eligibility for VHP Program membership. Once your properly completed membership application and supporting documents are received, VHP Program membership for the Fiscal Year will generally begin within seven (7) days and you will be issued a VHP Program membership (“VHP Membership”) that will be active during the course of such Fiscal Year. The VHP Membership for any Fiscal Year will expire at the end of that Fiscal Year. In order to qualify for the VHP Program in any subsequent Fiscal Years, you will have to again re-qualify for membership by reaching $100 Purchase Value of Company Products in the subsequent Fiscal Year and completing and sending to us a membership application along with supporting documents. Cash Rebate When you are a VHP Member, you are eligible to receive a cash rebate of five percent (5%) of all of your Purchase Value in a Fiscal Year, provided that you must submit an original receipt(s) showing the date(s), Company products purchased and prices that you paid for such products. Please mail the requested information to us at the address above in “Joining VHP”. As you make additional purchases of Company products during the Fiscal Year, please send your receipts to us as soon as possible and we will maintain an ongoing ledger balance of your potential year-end Cash Rebate. The Cash Rebate due (if any) to you for any Fiscal Year will be paid to you via a check (sent to the last address that we have on file for you) within thirty (30) days following the end of that Fiscal Year. You will not receive any portion of the Cash Rebate during the course of the Fiscal Year and only will receive a check after the Fiscal Year has ended. You must submit all receipts for which you are seeking a Cash Rebate to us by the last day of the Fiscal Year in which your purchase occurred. If a receipt is not sent to us by the last day of the Fiscal Year, then such receipt will not be honored for that Fiscal Year or any subsequent Fiscal Year. YOU MUST SUBMIT ANY REQUEST OR RECEIPT FOR A CASH REBATE DURING THE COURSE OF THE FISCAL YEAR IN WHICH THE APPLICABLE PURCHASE WAS MADE. ANY RECEIPTS OR REQUESTS FOR CASH REBATES SUBMITTED AFTER THE END OF THE FISCAL YEAR IN WHICH THE APPLICABLE PURCHASE WAS MADE WILL BE DEEDED INELIGIBLE FOR ANY CASH REBATE. Your Revenue Sharing portion for any Fiscal Year will be calculated as follows: YOUR REVENUE-SHARING SHALL EQUAL THE PRODUCT OF EACH OF THE FOLLOWING FOR SUCH FISCAL YEAR: (A) YOUR VHP REWARD POINTS PERCENTAGE; (B) THE VHP REVENUE POOL. IN OTHER WORDS, YOUR REVENUE-SHARING AMOUNT (IF ANY) WILL BE DERIVED FROM MULTIPLYING (A) and (B). Any Revenue-Sharing due (if any) to you for a Fiscal Year will be paid to you via a check (sent to the last address that we have on file for you) within thirty (30) days following the end of that Fiscal Year. You will not receive any portion of the Revenue-Sharing during the course of the Fiscal Year and only will receive a check after the Fiscal Year has ended. The term “VHP Revenue Pool” shall mean ten percent (10%) of the Annual Net Sales for the Company. The term “Annual Net Sales” shall mean for a whole Fiscal Year the total and aggregate Purchase Value for all Company products (regardless of whether purchased by VHP Members or non-VHP Members) as confirmed by an independent certified public accountant. The term “VHP Reward Points Percentage” as applied to any Fiscal Year for any VHP Member shall mean the quotient of: (a) such VHP Member’s Reward Points for such Fiscal Year; and (b) the aggregated total of all VHP Members’ Reward Points as earned by all VHP Members for such Fiscal Year. In other words, for each VHP Member, the VHP Reward Points Percentage shall be a fraction derived by dividing (a) by (b). For purposes of illustration only, if VHP Member John Smith makes only two purchases during the Fiscal Year ending October 31, 2010 (the first purchase having a Purchase Value of $100 being made on June 1, 2010 and the second purchase having a Purchase Value of $200 being made on July 1, 2010), then the VHP Member’s Reward Points for such Fiscal Year shall be 39,900, which is the sum of the products (i) 100 multiplied by 153 and (ii) 200 multiplied by 123. Using the same method of calculation for each and every VHP Member, if the aggregated total of all VHP Members’ Reward Points as earned by all VHP Members for such Fiscal Year equals 200,000, then the VHP Member John Smith’s VHP Reward Points Percentage shall be 19.95%, which is derived from dividing 39,000 by 200,000 and thereby obtaining the percentage of 19.95. The term “Reward Points” for any VHP Member shall mean, during any Fiscal Year, the aggregated sum of the following (in respect of all purchases of Company products during such Fiscal Year): for each purchase of Company products during the Fiscal Year: the Purchase Value for any Company product purchased during the Fiscal Year multiplied by the number of days between the date of such purchase and the last day of that Fiscal Year (for purposes of this calculation, both the first day and last day of the time period shall be included). YOU ARE HEREBY INFORMED, AND YOU EXPRESSLY ACKNOWLEDGE, THAT YOU UNDERSTAND THAT THE AMOUNT OF REVENUE-SHARING WHICH YOU MAY RECEIVE DURING ANY FISCAL YEAR IN WHICH YOU ARE A VHP MEMBER IS EXTREMELY UNPREDICTABLE AND FULLY VARIABLE AND VERY DEPENDENT ON A VARIETY OF CHANGING FACTORS, INCLUDING (WITHOUT LIMITATION) THE ANNUAL NET SALES AND YOUR INDIVIDUAL PURCHASE VALUE(S), THE AGGREGATED TOTAL OF ALL VHP MEMBER REWARD POINTS EARNED DURING THE FISCAL YEAR AND THE VHP REWARDS POINTS PERCENTAGE AS CALCULATED AT THE END OF ANY FISCAL YEAR. Revenue-Sharing is not an investment opportunity or any other security. There is no guarantee as to the amount (if any) of Revenue-Sharing in any Fiscal Year. VHP Rules Disclaimer THE VHP PROGRAM IS OPERATED “AS IS,” WITH ANY AND ALL FAULTS THAT MAY LIE THEREIN, AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH RESPECT TO THE VHP PROGRAM, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT: THE VHP PROGRAM WILL MEET YOUR REQUIREMENTS, YOU WILL OBTAIN THE BENEFITS YOU SEEK FROM THE VHP PROGRAM OR YOU WILL RECEIVE THE REWARDS THAT YOU ANTICIPATE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SPECIFICALLY, COMPANY EXPRESSLY DISCLAIMS ANY GUARANTEE, COMMITMENT OR IMPLIED PROMISE THAT YOU WILL NECESSARILY RECEIVE ANY CASH REBATES OR REVENUE-SHARING OF ANY KIND AT ANY TIME. Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WHATSOEVER SHALL COMPANY BE RESPONSBILE OR IN ANY WAY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER PECUNIARY LOSS ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, THE TERMINATION OR CANCELLATION OF THE AGREEMENT OR VHP PROGRAM, OR ANY USE OR INABILITY TO USE THE VHP PROGRAM AND DERIVE BENEFITS THEREFROM, INCLUDING, WITHOUT LIMITATION, LOSS OF CASH REBATES OR REVENUE-SHARING, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. In no event shall Company’s total liability to you for all damages exceed the amount of $10.00, except as may be required by applicable law, AND THEN ONLY WITH THE MAXIMUM LEGALLY PERMITTED LIMITATION OF LIABILITY APPLIED THEREUPON. Release and Hold Harmless TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, YOU HEREBY AGREE TO HOLD HARMLESS AND RELEASE COMPANY AND ITS AFFILIATE ENTITIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND AGENTS, FROM AND AGAINST ANY AND ALL LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) RELATING TO THIS AGREEMENT, THE VHP PROGRAM OR ANY ACTS OR OMISSIONS RELATED THERETO. Sole Remedy To the maximum extent allowed pursuant to applicable law, if you are dissatisfied for any reason with the VHP Program or the terms and conditions of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the VHP Program and terminate this Agreement as described below. Indemnification You hereby agree to indemnify us, including our officers, directors, employees, shareholders, affiliates, representatives, agents, consultants and advisors, against any and all losses, claims, damages, liabilities, taxes, fees and expenses (including, without limitation, attorneys’ fees and costs of litigation), penalties, actions, proceedings or judgments that arise out of or relate, directly or indirectly, to: (a) your use or inability to use the VHP Program and derive the benefits that you seek from the VHP Program; (b) your breach of any of the terms or conditions of this Agreement; (c) your infringement of the intellectual property, trade secret or other rights of another person or entity; and (d) your negligence, recklessness, bad faith, fraud, willful misconduct or violation of any law, administrative regulation or governmental rule. Taxes To the extent that any tax liability accrues to you in connection with, or as a result of, the VHP Program or this Agreement, you understand and hereby agree that filing and paying any such taxes is your sole responsibility and the Company is in no way responsible for any tax obligations that may accrue to you from the matters discussed herein. The Company shall not be obligated to pay or reimburse you for any taxes related to the VHP Program or this Agreement. Termination This Agreement is effective until terminated by you or the Company. We may terminate this Agreement or the VHP Program at any time immediately with or without notice to you and for any reason or no reason at all. In addition, this Agreement and your participation in the VHP Program will automatically terminate if you fail to comply with any of the terms of this Agreement, such termination being automatic and immediately effective as of the date of such failure to comply. Furthermore, this Agreement and the VHP Program shall automatically and immediately terminate upon the institution of bankruptcy or state law insolvency proceedings by or against Company. If this Agreement is terminated (regardless of how or why terminated), you must immediately discontinue any and all use of the VHP Program and destroy, delete, or uninstall all copies of the VHP Program documents in your possession whether on your computer or on any media or otherwise. If this Agreement is terminated by you or us, to the maximum extent permitted by applicable law, you will forfeit your rights to any Cash Reward or Revenue-Sharing. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TERMINATION OF THIS AGREEMENT FOR ANY REASON WILL RESULT IN PERMANENT FORFEITURE OF ALL ACCRUED/PENDING AND FUTURE CASH REBATES AND REVENUE-SHARING. THE COMPANY WILL OWE YOU NO PAYMENT OF ANY KIND WHATSOEVER (WHETHER FOR PAST, CURRENT OR FUTURE CASH REBATES, REVENUE-SHARING OR OTHERWISE) UPON ANY TERMINATION OF THIS AGREEMENT AND YOUR PARTICIPATION IN THE VHP PROGRAM. Force Majeure Company shall not be responsible for any failure to perform or delay in performing any of its obligations under this Agreement to the extent that such failure or delay results from causes outside the reasonable control of Company. Such causes shall include, without limitation, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, civil commotion, or the like. Miscellaneous This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of law principles. Any controversy or claim arising out of or relating to this Agreement or the VHP Program, or any breach thereof, shall be settled by confidential binding arbitration in Los Angeles County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. You consent to the exclusive jurisdiction of the courts of the State of California and agree that the venue will lie exclusively in Los Angeles County, California in all disputes and controversies of any kind or nature arising out of or relating to this Agreement or the VHP Program. In the event of any dispute or controversy arising hereunder, the prevailing party in such action shall be entitled to recover its reasonable costs and expenses, including (without limitation) attorneys’ fees and expenses. The parties agree that the arbitrator(s) shall have the power to award all costs of the arbitration, including reasonable attorneys’ fees and expenses, to the prevailing party in any dispute. ALL DISPUTES, CONTROVERSIES, CLAIMS OR CAUSES OF ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE VHP PROGRAM SHALL BE RESOLVED VIA BINDING ARBITRATION. YOU HEREBY WAIVE ANY RIGHT THAT YOU MAY HAVE, NOW OR IN THE FUTURE, TO A JURY TRIAL. Furthermore, no arbitration arising out of or relating to this Agreement shall be consolidated with any other arbitration and there shall be no right or authority for any claims to be arbitrated on a class action basis with other VHP Program participants, VHP Members (current or former) or any other persons similarly situated. This Agreement is the complete and entire agreement between you and Company and replaces any prior or contemporaneous agreements or understandings between you and Company. We may modify this Agreement from time to time in our sole and absolute discretion with or without notice to you and for any reason or no reason at all. No other amendments, modifications or waivers of any provision of this Agreement, or any rights or obligations of either party under this Agreement, will be effective, except pursuant to a written modification thereof signed by both of the parties. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. If any term or provision of this Agreement is held to be invalid, void, or unenforceable, then the remainder of this Agreement will not be affected, impaired, or invalidated, and each such term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. This Agreement does not, and is not intended to, nor may it be deemed to, confer any rights or remedies upon any person other than the parties hereto. The failure by us at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, will not constitute a waiver of such provision, right or remedy or in any way affect the validity and enforceability of this Agreement. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed0 as a waiver on any future occasion or against any other person. This Agreement will be binding upon and inure to the benefit of our respective successors and assigns. Only we may assign and delegate our rights and obligations under this Agreement, with or without notice to you and for any reason or no reason at all. However, you may not assign any of your rights or delegate any of your duties under this Agreement, whether voluntarily or involuntarily, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment of rights or delegation of performance in violation of this Paragraph is void. This Agreement may be executed via facsimile or electronic means and in counterparts, each of which shall be deemed an original, but which together shall constitute one contract. Notices All notices or other communications shall be in writing and shall be deemed to have been given (A) if by mail, three (3) calendar days after being addressed to the address below and deposited in the United States mail, postage prepaid, certified or registered mail, or (B) if sent by overnight express mail, when delivered. Notice may also be given by electronic mail or facsimile and shall be deemed given when received. Any notice to Company shall be given as follows: Address: P.O. Box 1869, Claremont, CA 91711-1869 Electronic Mail: info@drchaofoods.com Facsimile: 909-621-6666 Website: www.drchaofoods.com |
