Wholesale Sales Agreement Between You and Designs for Health, Inc.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I AGREE” BUTTON BELOW (“EFFECTIVE DATE”). BY CLICKING ON THE “I AGREE” BUTTON BELOW YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ACCOUNT HOLDER AND, IF ENTERING INTO THIS AGREEMENT FOR AN ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ESTABLISH A WHOLESALE ACCOUNT WITH DESIGNS FOR HEALTH TO PURCHASE PRODUCTS.
This Purchase Agreement is a Wholesale Sales Agreement (“Agreement”) and is a binding contract between the individual or entity 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”). 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. As used herein, “Terms” means the combination of the Terms of Sale, and this Agreement.
- Purchaser’s Qualification. Purchaser or, if Purchaser is an entity, at least one employee of 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 and/or its employees, contractors, or other associates must have certain additional credentials in order to maintain an Account. Purchaser shall immediately notify DFH of the loss of any credential of one of its employees, contractors, or other associates submitted to DFH when Purchaser applied to open the Account, or if the employee, contractor, or other associate whose credential was submitted is no longer employed by Purchaser. The sufficiency of a Purchaser’s credentials shall be determined by DFH in its sole and absolute discretion.
- 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 Terms. 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.
- Purchaser’s Responsibilities.
- 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”).
- 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 3(c) below.
- 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.
- 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 Amazon.com, Ebay.com, and Google Shopping.
- 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.
- No Online Or Remote Advertisements Below MSRP
- 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.
- 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.
- 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.
- 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.
- Online Advertising Restrictions.
- No Website Advertising. Except as set forth herein, Purchaser shall 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 Customer only, and with DFH’s prior written authorization, Customer may use images or other assets provided by DFH to advertise or otherwise promote DFH’s brands provided such images and assets are used in accordance with DFH brand use guidelines, policies or other instructions.
- No Mobile App Advertising. Purchaser shall not advertise or otherwise promote Products on mobile applications without the prior written authorization of DFH.
- 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.
- 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. Domestic Sales Only. Purchaser shall not sell any Product outside the United States.
- Use of DFH Copyrights, Trademarks, and Intellectual Property. Purchaser shall not use DFH’s trademarks, copyrighted material, or other intellectual property without permission. 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.
- 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.
- 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.
- 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.
- Adverse Events; Complaints. Purchaser shall promptly report to DFH, by calling DFH Purchaser 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.
- Restricted Products; Indemnification. Purchaser acknowledges that some U.S. Products (“Restricted 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”). 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 Purchaser 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 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 (h) shall survive termination of this Agreement.
- Authority to Perform Under the Terms. Purchaser shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with the Terms.
- 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 standard of care.
- 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. Purchaser shall comply with such restrictions.
- Term; Termination. This Agreement starts on the Effective Date and continues for so long as Purchaser’s Account is open (“Term”). This Agreement terminates when Purchaser’s Account is closed (“Termination”). DFH may close Purchaser’s Account at any time, with or without cause, with or without notice, in its sole discretion. Purchaser may close its Account by communicating such intent to DFH Customer Experience at (860) 623-6314, email@example.com, or such other contact method as DFH may determine from time to time.
- Consequence of Termination. Upon Termination: (i) DFH shall ship to Purchaser any Products in DFH’s inventory that have been paid for in full by Purchaser, provided that Purchaser has no other debts outstanding to DFH; (ii) DFH shall otherwise stop performing any services under the Agreement; (iii) Purchaser shall be prohibited from reselling Products unless DFH agrees otherwise in writing, and (iv) all rights and licenses under this Agreement shall terminate.
- Termination Due to Breach. DFH may terminate this Agreement immediately by written notice to Purchaser upon Purchaser’s breach of this Agreement, including, without limitation, Purchaser’s 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 Purchaser’s breach, at DFH’s election: (i) all amounts Purchaser owes to DFH, if any, shall immediately become due and payable notwithstanding any payment terms or due dates to the contrary to which the Purchaser and DFH (the “Parties”) may have agreed; (ii) Purchaser 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 Purchaser. The repurchase price paid by DFH shall be the original price actually paid by Purchaser less a twenty-five (25%) percent restocking fee, provided that DFH shall not pay for any Products Purchaser received free of charge. DFH shall inform Purchaser in its notice of termination whether it 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 5(f) shall be in addition to, and not in lieu of, the consequences of termination set forth in subsection 5(e) above.
- 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 (Jurisdiction; Venue), and 8 (Miscellaneous Provisions).
- General. Any failure to comply with this Agreement or the Terms 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 Terms 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 between the Parties or otherwise.
- 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.
- Liquidated Damages. Purchaser acknowledges that the terms of this Agreement are necessary and proper in order to protect DFH’s brand reputation and goodwill as a professional line of sports nutrition products. The Parties acknowledge and agree that if Purchaser fails to strictly comply with the terms of this Agreement, DFH will be damaged and that the amount of damage to DFH will be difficult or impossible to determine. Therefore, Purchaser agrees that if it breaches its obligations under Section 3 of this Agreement, then Purchaser will pay DFH liquidated damages (“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 breach for each day that any breach continues. Each breach with respect to each Product shall be considered a separate breach for the purposes of this Section. For example, if three Products are involved over a period of 10 days, then that would be considered 30 breaches subject to Liquidated Damages of $3,000.00. Liquidated Damages are intended to compensate DFH for its monetary damages resulting from Purchaser’s breach of its obligations under Section 3 of this Agreement. The parties further intend to make advance provision for Liquidated Damages in order to avoid controversy, delay and expense in the event of any breach of Purchaser’s obligations under Section 3 hereof. DFH may, but shall not be required, to invoice Purchaser for any Liquidated Damages assessment and may retain Liquidated Damages from any payment otherwise due to Purchaser. Payment or assessment of Liquidated Damages will not release Purchaser from any obligations under this Agreement. The Liquidated Damages are being estimated based on the various damages that DFH expects to suffer upon any breach of Section 3 of the Agreement, 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. The Liquidated Damages will constitute DFH's sole and exclusive monetary remedy for damages suffered as a result of Purchaser’s breaches or deemed breaches of Section 3 of this Agreement or those of any of its owners, employees, agents or subcontractors. DFH has the right to recover, in addition to Liquidated Damages, any additional damages suffered as a result of Purchaser’s breach of any of its other obligations pursuant to the Terms or this Agreement other than those set forth in Section 3 of this Agreement. Nothing in this Section will preclude DFH from terminating this Agreement based on Purchaser’s breach at any time after an infraction, or from seeking monetary or other damages if Purchaser fails to perform its obligations in a manner that conforms in all respects to the requirements of this Agreement. Purchaser expressly acknowledges and agrees that the Liquidated Damages described in this Section are not a penalty and are reasonably estimated in light of the anticipated or actual harm that would be caused by a breach and 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 Purchaser's breach of Section 3 of this Agreement. Nothing in this Section shall limit or restrict DFH’s right to injunctive relief with respect to any breach by Purchaser of Section 3 hereof.
- 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.
- Modifications; Waiver; Entire Agreement. DFH shall have the right, in DFH’s sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting and acceptance by Purchaser. Otherwise, the Terms may not be altered, amended or modified, except by a written document signed by an authorized representative of each Party. DFH may restrict Purchaser’s access to purchase Products unless Purchaser agrees to the latest version of this Agreement. Failure by either party to enforce any of the terms and conditions of the Terms 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 Terms. The Terms, together with all other agreements, schedules, or exhibits incorporated by reference into the Terms, or attached to the Terms, constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes any prior oral or written agreements between the Parties on the same subject matter.
- Miscellaneous Provisions.
- 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.
- Jurisdiction; Venue.
- 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 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.
- 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.
- 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.
Notices. You agree that DFH may give you notices required by the Terms (each a “Notice”) or otherwise respond to you at the address and/or email address DFH has on file for you or in any other manner reasonably elected by DFH. All Notices from you to DFH must be in writing addressed to: (i) firstname.lastname@example.org; (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 you shall be delivered by email, personal delivery, or nationally recognized overnight courier. Unless Notice from you 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.