# Wholesale Retailer Agreement 

#### (*for reference only)*

*Updated 10/1/26*

This Wholesale Retailer Agreement (the "Agreement") is entered into as of the date signed by the retail distributor (the "Effective Date"), between the undersigned retail distributor ("Retailer"), and Modern Alternative Mama, LLC dba Earthley Wellness, an Ohio limited liability company ("Earthley") with its principal business location at 320 Outerbelt Street, Suite J, Columbus, OH 43213. Retailer and Earthley are sometimes individually referred to herein as a "Party" and collectively as the "Parties."

### 1. Appointment, Registration, Representation of Retailer.

(a) **Appointment**. Earthley hereby appoints Retailer as an authorized reseller of Earthley's products as listed on www.earthley.com (the "Products"). This appointment is non-exclusive and Earthley reserves the right to appoint other resellers and/or to sell the Products itself in any territory which may or may not overlap Retailer’s desired sales territory. Earthley reserves the right from time to time to make changes to the Products, their pricing, and/or to discontinue any of the Products.

(b) **Registration**. In order to accept appointment as an authorized retailer of the Products, Retailer must register as a “Wholesaler” on www.earthley.com (the “Website”). Retailer consents to its business information being listed as a Wholesaler on the Website or in other marketing materials produced by Earthley.

(c) **Representation by Retailer**. By signing this Agreement, Retailer represents that it is a bona fide reseller of the Products and Retailer will not purchase the Products for personal use. Earthley shall have the right, as it deems advisable in its sole discretion, to inspect the sales records of Retailer, no more than on an annual basis, in order to verify that Retailer is a bona fide reseller of the Products.

### 2. Purchases, Payment, Discount, Sales Tax.

(a)** Purchases of Products**. Retailer must purchase Products through their wholesale account, which is located at the bottom of the “My Account Dashboard” on the Website. Earthley reserves the unconditional right to reject any purchase placed on the Website. Earthley shall have no liability for any delay in filling or shipping any purchase made by Retailer.

(b)** Payment**. Payment for Products is due at the time Retailer’s order is placed on the Website.

(c) **Discount**. Earthley will apply the following discounts to the full retail price (excluding charges incidental to the purchase) purchased by Retailer:

(i) Forty Percent (40%) discount to orders totaling at least Eight Hundred Thirty-Three Dollars ($833.00) before the discount is applied; and

(ii) Thirty Percent (30%) discount to orders totaling between Three Hundred Fifty-Seven Dollars ($357.00) and Eight Hundred Thirty-Two Dollars and 99/100 ($832.99) before the discount is applied.

* Restrictions apply as follows: *

(iii) Products identified on https://www.earthley.com/wholesale-product-exclusion-list (which shall be amended at the discretion of Earthley and all effective changes will be reflected here) are exempt from any discount to Retailer and also do not count towards reaching any discount threshold; and

(iv) Retailer will not receive the discounts described above on already-discounted, sale or clearanced items.

Earthley shall at all times have the right to change the prices of its Products and the discount offered to Retailer for future wholesale orders. Prices do not include applicable shipping costs or applicable tax.

(d) **Sales Tax**. Retailer shall provide Earthley with a valid sales tax exemption certificate at the time of purchase, otherwise applicable sales tax will be collected.

### 3. Shipment Terms, Title and Risk of Loss, Acceptance.

(a) **Shipment**. All Products purchased by Retailer will be packaged in Earthley's standard containers, marked for shipment to Retailer at the address specified in Retailer’s online order. Retailer will be responsible for and pay all shipping charges. Earthley does not offer free shipping on wholesale orders. Earthley shall not be held liable to Retailer or any other party for any delay in shipment of any order. Earthley reserves the right to cancel or delay any shipment when Retailer has failed to perform any of its obligations under this Agreement.

(b) **Inspection and Acceptance**. Retailer shall have five (5) days from the date of arrival of the shipment of Products to the designated shipping location to inspect the Products and notify Earthley of any discrepancies including, but not limited to, any discrepancies in the quantity or quality of the Products. Unless a notice of a discrepancy is timely reported to Earthley, all shipments of Products will be deemed accepted by Retailer and there will be no refund owed to Retailer (including customers of Retailer) for any damaged or non-conforming Products.

### 4. Intellectual Property Rights.

During the term of this Agreement, Earthley grants to Retailer a non-transferable, non-exclusive, limited license to use Earthley's logos, trademarks, and trade names (collectively the "Earthley Marks"), in connection with the Retailer's marketing, advertisement and sale of the Products. Such license shall immediately terminate upon the expiration or termination of this Agreement. Retailer shall strictly comply with all standards of use for the Earthley Marks and must at all times display appropriate trademark and copyright notices as instructed by Earthley. Retailer acknowledges that the Earthley Marks and other intellectual property provided to Retailer by Earthley, if any, are the sole and exclusive property of Earthley. Retailer shall not acquire any right, title or interest under this Agreement in any patent, copyright, Earthley Marks or other intellectual property right of any kind of Earthley. During the term of this Agreement and thereafter, Retailer shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of the Earthley Marks, patents, copyrights or other intellectual property of Earthley or the goodwill associated therewith or that will tend to prejudice the reputation of Earthley or the Products.

### 5. Marketing Requirements.

Earthley complies with applicable laws regarding the advertisement and marketing of the Products, including without limitation, those enforced by the Federal Trade Commission (“FTC”) and the U.S. Food and Drug Administration (“FDA”). Accordingly, Retailer is obligated to follow all applicable laws with respect to its marketing of the Products, including those enforced by the FTC and FDA. In order to verify the Products are marketed in compliance with these laws, all media advertising, printed materials and electronic documents in which a Product and/or an Earthley Mark is used must follow one of these protocols:

(a) Be submitted to Earthley for review in advance and must not be distributed or used in any manner without the prior written approval of Earthley; or

(b) Use the specific language pre-authorized by Earthley and found in the Earthley Branding Guide.

### 6. Marketing and Sales Restrictions.

Retailer is prohibited from doing any of the following with respect to its marketing,  promotion or sales of the Products:

(a) Advertising, offering to sell or selling any Product on or via Amazon.com or Tik Tok;

(b) Running paid advertising on any pay-per-click internet search engine platforms, including without limitation, Google and Bing;

(c) Selling expired Products or selling to other Earthley Retailers for their commercial use;

(d) Posting content to a social media page operated by Earthley, including without limitation, Earthley’s Facebook and Instagram pages, that results in, or is likely to result in, a consumer purchasing the Products from Retailer instead of Earthley;

(e) Paying Google Shopping to rank the Products or the Products’ names;

(f) Directing Retailer’s customers to Earthley for Product refunds or advertising that purchasers of Product from Retailer will be eligible for refunds from Earthley;

(g) Advertising that a Product is offered at the lowest available price or similar language; or

(h) Conducting or advertising any liquidation of Product inventory.

### 7. CALIFORNIA PROP 65.

Retailer acknowledges that certain Products may require a warning under the California Safe Drinking Water and Toxic Enforcement Act of 1986, California Health & Safety Code § 25249.5 et seq., and its implementing regulations (“Prop 65”). For any Product Earthley identifies to Retailer as requiring a Prop 65 warning (“Prop 65 Product”), Retailer shall, in connection with its marketing, advertising, offering for sale, and sale of such Prop 65 Product to consumers in California:

(a) notify Earthley in the event Retailer does or expects to sell any Prop 65 Product to consumers located in California, whether such sales are online or in person;

(b) provide the Prop 65 warning specified or supplied by Earthley in a clear, conspicuous, and legally compliant manner at all points at which a warning is required by applicable law;

(c) ensure that any warning label, sign, notice, website warning, catalog warning, or other warning provided by Earthley with or for a Prop 65 Product is not removed, obscured, altered, modified, or omitted;

(d) display or otherwise provide all required warnings in connection with online, in-store, or other sales to California consumers, including any warning required to be provided before completion of the purchase;

(e) use the warning language and method of transmission specified by Earthley unless Retailer has received Earthley’s prior written approval to use alternative warning language or a different method of transmission; and

(f) promptly implement any updated warning language, labeling, or instructions provided by Earthley to address changes in Prop 65 requirements.

Retailer shall be responsible for ensuring its marketing, advertising, display, and sale of Prop 65 Products comply with Prop 65 to the extent such compliance is within Retailer’s control. Retailer shall promptly notify Earthley of any Prop 65 notice of violation, claim, demand, inquiry, or enforcement action received by Retailer relating to a Product and shall reasonably cooperate with Earthley in responding to the matter.

Retailer shall not be responsible under this Section for Earthley’s failure to identify a Product as requiring a Prop 65 warning or for the substantive accuracy or legal sufficiency of warning language expressly supplied by Earthley, provided that Retailer has displayed and transmitted the warning in accordance with Earthley’s written instructions.

### 8. Warranty.

EARTHLEY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Customers who purchase the Product directly from Retailer are not eligible for Earthley’s 30-day Guarantee refund policy.

### 9. Limitation of Liability.

IN NO EVENT SHALL EARTHLEY BE LIABLE UNDER THIS AGREEMENT TO THE RETAILER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

### 10. Product Recall.

In the event that either Party becomes aware of any actual or potential defect, quality issue, safety concern, or other circumstance that may necessitate a recall, market withdrawal, or other correction of the Product (collectively a "Recall Event"), such Party shall immediately notify the other Party in writing within forty-eight (48) hours after becoming aware of any Recall Event. Earthley will determine whether a voluntary recall shall be made following a Recall Event and/or communicate any mandatory recall that is required by applicable law or regulatory authorities. Retailer shall cooperate fully with Earthley and abide by its directions with respect to any voluntary or mandatory Recall Event, including without limitation, removing identified Product from its sales platform and following any Earthley communication directives to its customers. Retailer shall provide Earthley with copies of any documentation created by Retailer or in its possession that is associated with a Recall Event and/or subsequent recall.

(a) The costs associated with a recall shall be allocated as follows:

(i) If the recall is necessitated by Earthley’s negligence, failure to comply with specifications, applicable laws, or the terms of this Agreement, Earthley shall bear the costs associated with the recall;

(ii) If the recall is necessitated by Retailer’s negligence, improper instructions to the consumer, or failure to comply with the terms of this Agreement, Retailer shall bear all costs associated with the recall; and

(iii) If the recall is necessitated by causes not attributable to either Party's fault, or by regulatory changes occurring after the Product was manufactured, the Parties shall share the costs of the recall equally.

(b) Recall costs shall include, without limitation: (i) notification expenses; (ii) shipping and handling of returned Product; (iii) replacement, repair, or refund of the recalled Product; and (iv) destruction of recalled Product if necessary. Neither Party shall be responsible to the other for labor costs associated with administering a recall.

### 11. Retailer’s Indemnification.

Retailer shall indemnify, defend and hold harmless Earthley, its officers, employees, owners, directors, contractors and affiliates, against all damages, claims, liabilities and losses including without limitation reasonable attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, to the extent they arise out of: a) Retailer’s, or any of its agents’, breach of this Agreement; or b) Retailer’s, or any of its agents’, violation of any applicable law, ordinance, rule or regulation, including without limitation Retailer’s failure to transmit and/or display the California Prop 65 warning in accordance with any instructions provided by Earthley to Retailer. Earthley shall have the right to defend itself, and in such case, Retailer shall promptly reimburse Earthley for all of Earthley’s associated costs and expenses.

### 12. Term, Termination.

(a) **Term**. This Agreement shall commence on the Effective Date and shall continue in full force and effect for two (2) years (the "Initial Term") unless terminated earlier as provided in this Agreement, and shall automatically be extended for additional one-year periods unless either Party provides written notice to terminate at least thirty (30) days prior to the expiration of the Initial Term or any renewal term.

(b) **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 fifteen (15) days following written notice thereof. Termination shall be in addition to any other remedies that may be available to the non-breaching party.

(c) **Termination for Convenience**. Earthley may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice.

(d) **Obligations Upon Termination.** Upon termination of this Agreement, Retailer shall cease to be an authorized Retailer of the Products, and (1) all unshipped orders may be cancelled by Earthley without liability, and (2) Retailer shall remove and not thereafter use any sign, display, or other advertising or marketing means containing Earthley Marks, except for those in-store materials directly necessary for the resale of the Products which may be remaining in Retailer's possession after termination, which materials Retailer may continue to utilize until all remaining Products have been sold, or ninety (90) days thereafter, whichever occurs first, after which Retailer shall cease the use of all Earthley Marks. Earthley reserves the right to require Retailer to immediately cease and desist the sale of all Products and/or a specific Product, in the event of a termination for Retailer’s breach of the Agreement.

### 13. Confidentiality.

During the term of this Agreement and for three (3) years following its termination or expiration, Retailer shall keep the terms of this Agreement, to include without limitation, its pricing structure for the Products, strictly confidential. Retailer may disclose such information in response to a lawfully issued subpoena or other court order, provided that it shall give prompt written notice to Earthley of such request or court order prior to any disclosure and allow Earthley the opportunity to meaningfully defend against disclosure at its option.

### 14. Agreement to Arbitrate Disputes.

Any controversy or claim arising out of or relating to this Agreement or the Parties’ dealings shall be settled by arbitration in the county of Franklin, state of Ohio, in accordance with the then-governing rules of the American Arbitration Association. Notwithstanding the foregoing, either Party may seek temporary, preliminary, or emergency injunctive relief from a court of competent jurisdiction to protect its rights pending appointment of the arbitrator(s), without waiving the right to arbitration. Judgment upon the award rendered may be entered and enforced in any court of competent jurisdiction.

### 15. Governing Law and Venue.

This Agreement shall be governed by the laws of the State of Ohio, 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. 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 the county of Franklin, state of Ohio. Both Parties hereby submit to the jurisdiction and venue of any such court.

### 16. Assignment.

Retailer may not assign the terms, conditions and/or performance of this Agreement to any other party without the prior written consent of Earthley.

### 17. Signatures.

Retailer’s acknowledgment and acceptance of this Agreement by any electronic means including, without limitation, typing its name on a Website pop-up designed for this purpose or other methods of e-signature, shall be deemed to be effective execution of the Agreement and may be used by the Parties in lieu of original signature pages for any and all purposes.

### 18. Entire Agreement, Modification, Waiver, Severability and Survival.

This Agreement is the entire agreement between the Parties with respect to the subject matter and may only be modified by a written amendment signed by both Parties, unless otherwise provided herein. 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. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction or by controlling law to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect. Notwithstanding the expiration or termination of this Agreement for any reason, those provisions of this Agreement that by their nature are intended to survive expiration or termination shall remain in full force and effect.