Designs for Sport Purchase Agreement

Designs for Sport Purchase Agreement

Wholesale Sales Agreement Between You and Designs for Health, Inc.



This Purchase Agreement is a Wholesale Sales Agreement (“Agreement”) and is a binding contract between the individual person that seeks to establish a wholesale account (“Account”) to buy Designs for Sport® products (“Products”) and that is entering into this Agreement (“Purchaser”) and Designs for Health, Inc. (“DFH”). For the avoidance of doubt, this Agreement does not authorize the resale of, or otherwise govern, Designs for Health®-branded products.

In addition to this Agreement, all sales of Products are also subject to and governed by the Terms of Sale – Wholesale Accounts (“Terms of Sale”), available at or such other URL as DFH may designate from time to time, which are incorporated herein by reference and form part of this Agreement. To the extent the terms of this Agreement conflict with the Terms of Sale, the provisions of this Agreement shall prevail, in both cases where this Agreement is expressly identified as superseding the Terms of Sale and where not expressly identified but so conflicting. 

  1. Purchaser’s Qualification. Purchaser must have satisfactorily completed a course presented by DFH in order to establish and maintain an Account. From time to time, DFH may require that Purchaser have certain additional credentials to maintain an Account (“Credentials”). Purchaser shall immediately notify DFH of the loss of any Credentials submitted to DFH when Purchaser applied to open the Account. The sufficiency of a Purchaser’s Credentials shall be determined by DFH in its sole and absolute discretion.
  2. Authorized Users. Only Purchaser and Purchaser-authorized agents (collectively, “Authorized Users”) are eligible to access and use the Account to purchase Products. Purchaser agrees that it shall not share the Account or permit its use by any person except for Authorized Users. Purchaser is responsible for all orders placed on the Account, whether by Authorized Users or others, and for compliance by all such persons with the Agreement. Purchaser will use reasonable commercial efforts to prevent unauthorized use of the Account and will promptly notify DFH, in writing, if Purchaser knows or suspects that its Account has been used by anyone other than Authorized Users. Purchaser agrees to provide reasonable assistance as DFH may request in identifying unauthorized users of the Account who purchase Products and in taking corrective actions that DFH may deem appropriate in its sole discretion.
  3. Purchaser’s Responsibilities.
    1. Territory.  Purchaser shall not deliver, or cause to be delivered, to any street address, entity, or person outside of the U.S., any Products that DFH delivered to the U.S. for Purchaser’s Account (“U.S. Products”). Purchaser shall not deliver, or cause to be delivered, to any street address, entity, or person outside of Canada, any Products that DFH delivered to Canada for Purchaser’s Account (“Canadian Products”). 
    2. Resale Only to End Users.  Purchaser shall sell or provide Products only to end users of the Products (“End Users”), and shall not sell or otherwise provide Products to distributors, resellers, or any person Purchaser knows or reasonably should know intends to resell the Products, unless DFH gives prior written authorization.   If Purchaser supplies or otherwise allows access to Products to a distributor or Purchaser in violation of the foregoing, sales by such Purchaser or distributor shall be treated as if made by Purchaser for purposes of calculating Liquidated Damages set forth in Section 5(c) below. 
    3. Resale Channel Restrictions.  Without the prior written consent of DFH, which DFH may grant, withhold, or condition in its sole discretion, Purchaser may not list, offer for sale, sell, resell, or distribute Products except through the channels set forth in Section 3(c)(i) and 3(c)(ii) below. 
      1. Online Sales. Purchaser shall not list, offer for sale, sell, or distribute Products via any website or mobile application, except via Shopping Cart(s) that DFH authorizes in writing prior to Purchaser listing, offering for sale, selling, or distributing any Products on such Shopping Carts. “Shopping Cart” means Purchaser’s Shopify account or Purchaser’s account with such other ecommerce platform(s) as DFH may authorize in writing from time to time. DFH reserves the right to condition or withhold any authorization under this Section 3(c)(i) for any reason or no reason, in DFH’s sole discretion, without penalty or other liability. This restriction entails, without limitation, a prohibition on sales through,, and Google Shopping. 
      2. In-Person Sales. Purchaser may sell Products at physical locations the commercial purpose of which is, in whole or in part, to play or practice sports or exercise, or stores located in or adjacent to such locations, if and only if such sales or offers to sell are made to individuals who use or intend to use such locations other than merely as passive observers of such sports or exercise. The latter category includes, without limitation, athletes and trainers at the following locations: gyms; pro shops; courts, courses, or clubs for golf, tennis, basketball, racquetball, or badminton, as the case may be; sports stadiums; sports fields; hockey or skating rinks; bowling alleys; pool halls; swimming pools (other than merely recreational public pools); shooting ranges; racetracks; rings or dojos for boxing or other martial arts; and athletic events venues and training facilities. DFH reserves the right to determine, in its sole discretion, whether Purchaser is in violation of this Section. 
      3. No Online Or Remote Advertisements Below MSRP
        1. No Resale Price Restrictions. There is no restriction on the prices at which Purchaser may resell the Products. However, as set forth in subsections (ii) through (iv) below, there may be restrictions on the minimum prices at which Purchaser may advertise Products for sale.
        2. Online or Remote Sales; Restriction on Advertised Price. Other than at physical locations where Products are sold, or offered for sale, on an in-person basis, Purchaser shall not advertise Products for sale below DFH’s suggested retail price for online sales (MSRP). For the avoidance of doubt, the foregoing restriction applies, without limitation, to online storefronts. DFH, in its sole discretion, shall determine, and reserves the right to change from time to time, the MSRP.
        3. In-person Sales. For sales made in person and not online or otherwise remotely, there is no restriction on the price at which Purchaser may advertise Products.
        4. Price Includes Discounts and Promotions. For purposes of subsections (ii) and (iii) above, the advertised price is the price after the application of promotions, discounts, promo codes, free shipping or any other offers of Purchaser affecting the price of the Products.
      4. Online Advertising Restrictions.
        1. No Website Advertising. Except as set forth herein, Purchaser shall not advertise the Products on websites, including without limitation banner advertisements, pop-up advertisements, search engine shopping feeds, and/or sponsored searches (e.g., Google AdWords, Yahoo! Search Marketing, and Bing Search Marketing). On websites owned or operated by Purchaser only, and with DFH’s prior written authorization, Purchaser may use images or other assets provided by DFH to advertise or otherwise promote the Designs for Sport brand provided such images and assets are used in accordance with DFH brand use guidelines, policies or other instructions.
        2. No Mobile App Advertising. Purchaser shall not advertise or otherwise promote Products on mobile applications without the prior written authorization of DFH.
        3. Social Media Promotion. Purchaser may promote the Products through social media accounts owned or operated by Purchaser, provided that the posts are primarily educational in nature and Purchaser otherwise complies with this Agreement, including without limitation, minimum advertised price restrictions. In no event shall Purchaser sponsor posts that mention the Products or engage in any social media promotion, advertising campaign, or activity, including but not limited to search engine optimization, sponsored posts containing Products, or giveaways.
        4. No Price Promotion. Purchaser shall not advertise Product pricing, promotions, discounts, promo codes, free shipping or any other offers affecting the price of the Products on any website, including in mobile apps or social media. This Agreement does not establish an actual retail price for Products. 
      5. Use of DFH Copyrights, Trademarks, and Intellectual Property. Purchaser shall not use DFH’s trademarks, copyrighted material, or other intellectual property without prior written permission from DFH.  Without limiting the foregoing, in no event shall Purchaser copy or scrape images or other content from DFH web properties or otherwise from online sources. If DFH grants such permission, Purchaser shall follow DFH’s brand use guidelines, policies, or other instructions DFH may give to Purchaser from time to time regarding the use of DFH’s trademarks and copyrighted material. Interacting with DFH’s trademarks and copyrighted material on social media in accordance with platform terms does not violate this Section 3(f).
      6. Product Displays.  Purchaser shall follow DFH’s instructions regarding how, and whether, Purchaser may display Products in Purchaser’s place of business for End Users to view and purchase. 
      7. No Off-Label Claims.  Purchaser shall not make any false or misleading representations regarding the Products nor make any representations or warranties with respect to the Products that are not contained within or consistent with DFH’s patient/consumer literature describing the Products.
      8. No Government Contracts. Without express written approval from DFH, Purchaser shall not resell Products to any federal, state, local, or foreign government, or its political subdivisions or agencies, any quasi-governmental authority, or any arbitrator, court, or tribunal with legal jurisdiction over disputes. 
      9. Adverse Events; Complaints.  Purchaser shall promptly report to DFH, by calling DFH Customer Experience at (860) 623-6314, any adverse event or complaint about any Product or its use of which Purchaser becomes aware. Purchaser shall immediately report any serious adverse event to DFH so DFH may comply with FDA regulations concerning investigation and reporting of such serious adverse events. Purchaser agrees to cooperate and provide reasonable assistance to DFH in the investigation of any adverse event or complaint.
      10. Restricted Products; Indemnification. Purchaser acknowledges that some U.S. Products, if sold in California, would require a warning under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, and its implementing regulations (“Prop 65”). Such Products are “Restricted Products” as used herein. Restricted Products shipped to Purchaser at an address outside the State of California may be marked with the words “Not labeled for sale in California,” or words of similar import. A complete list of Restricted Products is available from DFH Customer Experience (860-623-6314). Purchaser also acknowledges that it would not be practicable for DFH to pre-label Restricted Products that are shipped to a non-California address with such warning given that Restricted Products so shipped would typically be sold to End Users outside California. Purchaser further acknowledges that Purchaser will be in a better position to know which Restricted Products, if any, it will sell in California. Accordingly, Purchaser agrees that it will not sell any Restricted Products to End Users in California unless Purchaser provides a warning, or warnings, including warnings on its website if authorized to sell Products online, that comply with the requirements of the Prop 65. Note that any Restricted Products sent to Purchaser at a shipping address within the State of California will be pre-labeled with an appropriate warning under Prop 65 and Purchaser agrees not to remove or alter any such warnings on any such Product if sold in the State of California. If Purchaser sells Restricted Products in violation of the foregoing, Purchaser agrees to indemnify, defend, and hold DFH harmless for any claims, liability, or costs related to any sales made by Purchaser that do not comply with Prop 65, including reasonable attorneys’ fees and other court costs. Purchaser’s obligations under this subsection (k) shall survive termination of this Agreement.
      11. Authority to Perform Under the Agreement. Purchaser shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with the Agreement.
      12. Standard of Care. Purchaser agrees to sell and administer the Products strictly in accordance with all applicable laws and regulatory requirements, and in accordance with the applicable medical or other healthcare standard of care. 
      13. Changes to Channel and Advertising Restrictions. DFH reserves the right, in its sole discretion, without penalty or liability, to modify, remove, and/or add to the advertising, channel, and other restrictions in this Section 3 on prior notice to Purchaser. Purchaser shall comply with such restrictions.
    4. Term and Termination.
      1. Term; Termination. This Agreement starts on the Effective Date and continues for so long as the Account is open (“Term”). DFH, at any time, with or without cause, with or without notice, in its sole discretion, may close the Account and terminate the Agreement as to Purchaser, or, if Section 7 applies, as to (i) Purchaser, (ii) the Business Entity (as defined in Section 7), or (iii) both. The party or parties as to whom the Account closed, individually and collectively, shall be the “Terminated Party,” and the Account closure shall be referred to as “Termination,” regardless of whether there are one or more Terminated Parties. Termination may be requested by communicating such intent to DFH Customer Experience at (860) 623-6314,, or such other contact method as DFH may determine from time to time.
      2. Consequence of Termination. Upon Termination: (i) DFH shall ship any Products in DFH’s inventory that have been paid for in full, provided that the Account has no other debts outstanding to DFH; (ii) DFH shall otherwise stop performing any services to the Terminated Party under the Agreement; (iii) the Terminated Party shall be prohibited from reselling Products unless DFH agrees otherwise in writing, and (iv) all of the Terminated Party’s rights and licenses under this Agreement shall terminate.
      3. Termination Due to Breach.  DFH may terminate this Agreement immediately by written notice upon breach of this Agreement, including, without limitation, failure to comply with Section 3 of this Agreement or to maintain the qualifications provided in Section 1 above. If this Agreement is terminated by DFH due to breach, at DFH’s election: (i) all amounts the Account owes to DFH, if any, shall immediately become due and payable notwithstanding any payment terms or due dates to the contrary to which the DFH may have agreed; (ii) the Terminated Party will permit DFH to repurchase all Products it has on hand within fourteen (14) days of notice of termination, with the cost of shipment paid by the Terminated Party. The repurchase price paid by DFH shall be the original price actually paid to DFH less a twenty-five (25%) percent restocking fee, provided that DFH shall not pay for any Products received free of charge. DFH shall inform the Terminated Party in its notice of termination whether DFH elects to repurchase any Products and shall pay for the repurchase within thirty (30) days of receipt of the Products. The consequences of termination set forth in this subsection 4(c) shall be in addition to, and not in lieu of, the consequences of termination set forth in subsection 4(b) above.
      4. Survival. The following Sections of the Agreement will survive the termination or earlier expiration of this Agreement: 1 (Purchaser’s Qualification), 2 (Authorized Users), 3 (Purchaser’s Responsibilities), 4(b) and 4(c) (regarding Term and Termination), 5 (Remedies), 6 (Representations and Warranties), 7 (Business Entity Accounts), and 8 (Miscellaneous Provisions). 
    5. Remedies.
      1. General.  Any failure to comply with this Agreement or the Terms of Sale shall be a material breach and will result in termination of this Agreement and of Purchaser’s right to purchase Products. Further, DFH shall be entitled to pursue any and all other remedies provided herein or available at law or in equity. Except as otherwise provided, all rights and remedies provided to, or reserved for, DFH in the Agreement or Terms of Sale are cumulative and not exclusive, and the exercise by DFH of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available to DFH at law, in equity, by statute, in any other agreement or otherwise. 
      2. Injunctive Relief.  Purchaser acknowledges that its breach of this Agreement will irreparably harm DFH’s brand reputation and goodwill as a professional line of nutraceutical products, and that the harm caused may not be susceptible to measurement of money damages alone. Accordingly, DFH will have the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach of this Agreement, without the necessity of posting a bond or other security. 
      3. Liquidated Damages
        1. This Section 5(c) applies to each and every breach by Purchaser of Section 3 of this Agreement (each such breach individually and all such breaches collectively, “LD Breach”).
        2. Purchaser and DFH each acknowledge and agree that:
        3. The terms of this Agreement are necessary and proper in order to protect DFH’s brand reputation and goodwill as a professional line of nutraceutical products;
        4. In the event of LD Breach, DFH will be damaged and that the amount of damage to DFH will be difficult or impossible to determine;
        5. Liquidated Damages (defined below) are intended to compensate DFH for its monetary damages resulting from LD Breach;
        6. Liquidated Damages are intended to avoid controversy, delay, and expense in the event of LD Breach.
        7. Liquidated Damages are estimates based on the various damages that DFH expects to suffer due to LD Breach, including but not limited to lost sales and lost business, the infringement of DFH’s trademarks and other intellectual property, the irreparable harm to DFH’s business, customer relationships, goodwill and quality control procedures, and the costs of investigating any breaches. 
        8. Liquidated Damages are not a penalty and are reasonable estimates of anticipated or actual harm that would be caused by LD Breach, the difficulty or impossibility of proving the amount of loss, and the difficulty or impossibility of otherwise providing an adequate remedy to DFH as a result of LD Breach.  
        9. Obligation to Pay Liquidated Damages. In the event of LD Breach by Purchaser, its owners, employees, agents, or subcontractors, Purchaser shall pay to DFH liquidated damages in an amount equal to US$100.00 or, at DFH’s sole discretion, the equivalent amount in Canadian dollars, for each separate LD Breach for each day that any LD Breach occurs (“Liquidated Damages”). Each LD Breach with respect to each Product is considered a separate LD Breach for the purposes of calculating Liquidated Damages. For example, if each day for 10 days Purchaser Sells three (3) Products to a reseller in breach of the prohibition on Sales to resellers in Section 3(b) above, then that is considered thirty (30) LD Breaches subject to Liquidated Damages of $3,000.00. 
        10. Payment of Liquidated Damages is due upon written demand. DFH may, but is not required to, invoice Purchaser for any Liquidated Damages and may retain Liquidated Damages from any payment otherwise due to Purchaser. Payment or assessment of Liquidated Damages does not release Purchaser from any obligations under this Agreement.
        11. Liquidated Damages constitute DFH's sole and exclusive monetary remedy for damages for LD Breaches by Purchaser, any of its owners, employees, agents, or subcontractors. DFH has the right to recover, in addition to Liquidated Damages, any damages suffered by DFH as a result of breaches of the Agreement other than LD Breaches. Nothing in this Section 5(c) limits or restricts DFH’s right to injunctive relief with respect to any LD Breach.
      4. Representations and Warranties. Purchaser represents, warrants, and covenants that: (i) any protocols, dosage, prescribing and/or usage instructions for the Products provided by Purchaser to End Users or consumers, including without limitation to combine intake of the Products with other Products or other dietary supplements or drug products are safe and present no health or safety hazard to such End Users or consumers; and (ii) Purchaser does not provide medical treatment, advice, or otherwise make individual recommendations to consumers to use the Products in the prevention, treatment, or management of any disease or health-related condition.
    6. Business Entity Accounts
      1. Formation of Triparty Agreement; Joint and Several Liability. If:
      2. Purchaser (that is, the individual person who clicks the “I Agree” button below), despite warranting above that he or she enters into this Agreement as an individual person: (u) maintains that he or she entered into this Agreement on behalf of a business entity rather than as an individual person; (v) purports to place orders of Products or otherwise transact or engage with DFH on behalf of a business entity rather than as an individual person, or (w) contends that the Account is in the name of a business entity (such contention under subparts (u), (v), or (w), “Purchaser’s Contention,” and such business entity thereunder, the “Business Entity”); and 
      3. the Business Entity and DFH are not parties to an agreement titled “Designs for Sport Purchase Agreement” or covering substantially the same subject matter and governing the purchase and sale of Products; and 
      4. DFH fulfills or causes the fulfillment of Product orders placed through the Account or otherwise engages with the Account, with or without objecting to Purchaser’s Contention, 

        then, by placing orders for Products: (x) such Business Entity, as of the Effective Date, joins the Purchaser as a party to this Agreement; (y) the Business Entity and the Purchaser shall be jointly and severally liable for Purchaser’s obligations hereunder, including but not limited to liability for liquidated damages under Section 5(c); and (z) DFH, at its sole option and discretion, may discharge its obligations under this Agreement by rendering performance to either the Purchaser or the Business Entity, regardless of whether the contract identifies Purchaser or the Business Entity as the party to whom performance is due. For the avoidance of doubt, notice from DFH to Purchaser shall satisfy any requirement to provide notice to the Business Entity, and notice from DFH to the Business Entity shall satisfy any requirement to provide notice to the Purchaser, regardless of to whom the notice is addressed or directed.

      5. Business Entity’s Credentials. If the Business Entity is a party to this Agreement by operation of Section 7(a) above, then at least one employee or contractor affiliated with the Business Entity must have Credentials that meet DFH’s requirements under Section 1, and the Business Entity shall immediately notify DFH when it ceases to be affiliated with an employee or contractor who has the required Credentials.
    7. Miscellaneous Provisions
      1. California Consumer Privacy Act. To the extent applicable, the parties agree to comply with the California Consumer Privacy Act of 2018, as amended, and any regulations promulgated thereunder (“CCPA”). In the event that DFH processes personal information as part of fulfilling orders directly to End Users (“Customer PI”) under this Agreement, DFH agrees that it will not (i) sell the Customer PI or (ii) retain, use or disclose the Customer PI for any purposes that would cause DFH to lose its status as a service provider. As used in this Section 8(a), “personal information,” “sell,” and “service provider” have the meaning given to them in the CCPA.
      2. Modifications; Waiver; Entire Agreement.  DFH shall have the right, in DFH’s sole discretion, to modify this Agreement from time to time, and those modified terms become effective on posting and acceptance by Purchaser. Otherwise, this Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of all parties to the Agreement. DFH may restrict access to purchase Products unless Purchaser agrees to the latest version of this Agreement. Failure by a party to enforce any of the terms and conditions of this Agreement shall not constitute or be deemed to be a waiver of such terms or conditions, or of the right thereafter to enforce all terms and conditions of the Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter covered herein and supersedes any prior or contemporaneous oral or written agreements between the parties on the same subject matter, except to the extent the parties enter or have entered into a written signed agreement that expressly states it shall prevail in all or any respect over any future agreements that may be formed between or among the parties titled “Designs for Sport Purchase Agreement” or covering substantially the same subject matter.
      3. Performance by DFH’s Affiliates. DFH may perform and exercise its rights under this Agreement on its own behalf or through any other person or other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, DFH (collectively, “Affiliates”). DFH shall be responsible for any acts or omissions of its Affiliates that would constitute a breach of any of the applicable terms and conditions of this Agreement if such acts or omissions were acts or omissions of DFH. In this Section, “control” means the power to direct or cause the direction of the management and policies of a person or other entity, whether through the ownership of voting securities, by contract, or otherwise. 
    8. Jurisdiction; Venue.  
      1. U.S. Disputes. As to disputes arising from or related to Purchaser’s business operations in the U.S., including, without limitation, disputes arising from or related to U.S. Products (as defined in Section 3(a)) or the purchase, listing, advertising, offering for sale, sale, or distribution thereof (such disputes, “U.S. Disputes”), this  Agreement shall be governed in all respects by the substantive laws of the United States of America and the State of Florida without regard to conflict of law principles. The sole and exclusive venue and jurisdiction for U.S. Disputes arising from this Agreement shall be in the U.S. District Court for the Middle District of Florida sitting in Jacksonville, FL USA, or the state courts of Florida located in Flagler County, Florida, and DFH and Purchaser hereby submit to the jurisdiction of such courts for U.S. Disputes; provided, however, that equitable relief with respect to U.S. Disputes may be sought in any court having proper jurisdiction. 
      2. Canadian Disputes. As to disputes arising from or related to Purchaser’s business operations in Canada, including, without limitation, disputes arising from or related to Canadian Products (as defined in Section 3(a)) or the purchase, listing, advertising, offering for sale, sale, or distribution thereof (such disputes, “Canadian Disputes”), this Agreement shall be governed in all respects by the substantive laws of the Province of Ontario and the laws of Canada without regard to conflict of law principles. DFH and Purchaser agree that the sole and exclusive venue and jurisdiction for Canadian Disputes arising from this Agreement shall be in the courts located in the Province of Ontario, and DFH and Purchaser hereby submit to the jurisdiction of such courts for Canadian Disputes; provided, however, that equitable relief with respect to Canadian Disputes may be sought in any court having proper jurisdiction. 
      3. Attorney Fees.  If any claim, suit, or action is instituted to enforce the provisions of this Agreement or otherwise with respect to the subject matter hereof, the prevailing party will be entitled to recover its costs and reasonable attorney fees incurred in the preparation, prosecution, or defense of such claim, suit, or action, including such costs and fees on appeal and related to the collection of any judgment.
    9. Notices.  DFH may give Purchaser notices required by the Agreement (each a “Notice”), or otherwise communicate or respond to Purchaser, at the address and/or email address DFH has on file for Purchaser or Purchaser’s Account or in any other manner reasonably elected by DFH. All Notices from Purchaser or the Business Entity (as defined in Section 7, if applicable) to DFH must be in writing addressed to: (i); (ii) or “Designs for Health, Inc., 14 Commerce Blvd., Palm Coast, FL 32164, Attn: Legal Department; or (iii) any other address DFH designates in writing under this Section. All Notices from Purchaser or the Business Entity shall be delivered by email, personal delivery, or nationally recognized overnight courier. Unless Notice from Purchaser or the Business Entity is by email, it must be return receipt requested and postage prepaid. Except as otherwise provided in the Terms, a Notice is effective only if the Party giving the Notice has complied with the requirements of this Section. Notice received after 5:30 p.m. on any business day will be deemed received the following business day.