Designs for Sport Purchase Agreement

Designs for Sport Purchase Agreement

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, AS AN INDIVIDUAL PERSON, ARE THE ACCOUNT HOLDER, AND (C) YOU AS ACCOUNT HOLDER 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 person that seeks to establish a wholesale account (“Account”) to buy Designs for Sport® products (“Products”) and that is entering into this Agreement (“Customer”) and Designs for Health, Inc. (“DFH”). Customer and DFH are collectively referred to as the “Parties”.  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 https://www.designsforhealth.com/terms-of-sale-wholesale-accounts or such other URL as DFH may designate from time to time, which are incorporated herein by reference and form part of this Agreement. This Agreement and the Terms of Sale shall collectively be referred to as the “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.

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 https://www.designsforhealth.com/terms-of-sale-wholesale-accounts or such other URL as DFH may designate from time to time, which are incorporated herein by reference and form part of this Agreement. This Agreement and the Terms of Sale shall collectively be referred to as the “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. Customer’s Qualification. Customer 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 Customer have certain additional credentials to maintain an Account (“Credentials”). Customer shall immediately notify DFH of the loss of any Credentials submitted to DFH when Customer applied to open the Account. The sufficiency of a Customer’s credentials shall be determined by DFH in its sole and absolute discretion. Customer shall immediately notify DFH of the loss of any credential submitted to DFH when Customer applied to open the Account, or if the Customer whose credential was submitted is no longer employed by or affiliated with Customer. Customer shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with the Agreement

  2. Authorized Users. Only Customer and Customer-authorized agents may access and use the Account to purchase Products (collectively, “Authorized Users”). Customer shall not share Account access credentials or permit its use by any person except for Authorized Users. Customer is responsible for all orders placed through the Account, whether by Authorized Users or others, and for compliance by all such persons with the Agreement. Customer shall prevent unauthorized use of the Account and shall promptly notify DFH in writing if Customer knows or has reason to believe that Customer’s Account has been used by anyone other than an Authorized User. Customer agrees to provide reasonable assistance to DFH upon request to identify unauthorized users of the Account and to take corrective actions that DFH deems appropriate in its sole discretion.      

  3. Customer’s Responsibilities.

    1. Resale Restrictions.

      1. Territory.  If Customer is located in the U.S., Customer shall not list, offer for sale, sell, distribute, deliver, cause to be delivered or otherwise make available (collectively, “Sell” and each instance, a “Sale”) Products to addresses, entities, or individuals outside of the U.S. for Customer’s Account (“U.S. Products”).  If Customer is located in Canada, Customer shall not list, offer for sale, sell, distribute, deliver, cause to be delivered or otherwise make available (collectively, “Sell” and each instance, a “Sale”) Products to addresses, entities, or individuals outside of the Canada for Customer’s Account (“Canadian Products”).

      2. Resale Only to End Users.  Customer shall sell or provide Products only to end users of the Products that are under Customer’s care or who access Products through distribution channels or platforms authorized by this Agreement or otherwise by DFH in writing (“End Users”).   Customer shall not Sell Products to distributors, resellers, or any person Customer knows or reasonably should know intends to resell Products. If Customer Sells Products to any person in violation of this Section 3(a), Sales by such person shall be attributed to and treated as if made by Customer for purposes of calculating Liquidated Damages set forth in Section 5(c) below.

    2. Online Sales of Products.

      1. Online Sales Restrictions. Customer shall not, without the prior written consent of DFH, Sell any Products outside of the U.S. (or Canada as authorized), or directly or indirectly on any website, social media, online marketplace, forum, mobile application, platform or mobile application (including, but not limited to, as a third-party seller on marketplace websites such as Amazon, Walmart, and eBay), except for authorized websites or mobile applications made available to Customer by DFH. DFH may grant, withhold, or condition its consent to online sales by Customer in its sole discretion.

      2. Discount Codes. DFH may make available to Customer access codes, discount codes, or other credentials that Customer may choose to make available to End Users for their use to purchase Products on the Designs for Sport website or other authorized website or mobile application (“Discount Codes”). Customer may disclose Discount Codes to its End Users but shall not post any Discount Code on a website or social media platform or otherwise disclose them in any public-facing manner.

    3. In-Person Sales. Customer 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 Customer is in violation of this Section 3(c).

    4. Advertising & Promotion of Products by Customer

      1. Website Advertising & Promotion Prohibited. No advertising or promotion of Products on websites owned or operated by Customer or on other websites is permitted, except as specifically authorized by DFH in advance in writing. Advertising that is prohibited includes, for example and without limitation, the placement of banner ads, pop-up ads, tactics to promote Products in search engine shopping feeds, search engine optimization tactics, and sponsored searches such as Google AdWords and Google Search Marketing. In the event DFH permits the advertising or promotion of Products by Customer on its website, Customer may only use images or other assets provided by DFH and only in accordance with DFH brand use guidelines, policies, and other instructions.

      2. Mobile App Advertising & Promotion. Customer shall not advertise or promote Products on mobile applications without the prior written authorization of DFH.

      3. Social Media Advertising & Promotion. Customer may promote Products through social media accounts owned or operated by Customer, provided that the posts are educational in nature and Customer otherwise complies with this Agreement. Customer is encouraged to interact with Designs for Sport’s posts in social media. However, Customer shall not engage in any paid advertising of Products on social media platforms, including without limitation by sponsoring posts or placing paid campaigns or other paid advertising activity or sweepstakes or giveaway promotions that mention or refer to DFH, its brands, or the Products.

      4. No Advertising or Promotion of Price. Customer’s advertising and promotion of Products online and through mobile apps, social media, and all other forms of mass communication media shall not discuss or otherwise include Product pricing, discounts, promo codes, free shipping, or any other offers affecting the price of Products.

    5. Use of DFH Materials. Customer shall not use DFH’s trademarks, copyrighted material, or other intellectual property (“DFH Materials”) without prior written permission from DFH. Without limiting the foregoing, in no event shall Customer copy or scrape images or other content from DFH web properties or otherwise from online sources. If DFH grants permission to use DFH Materials, Customer shall follow DFH’s brand use guidelines, policies, and other instructions concerning the DFH Materials. Interacting with DFH Materials posted in social media in accordance with platform terms does not violate this Section 3(e).

    6. Product Displays. Customer shall not offer Products for sale at any physical location except as authorized in this Section 3(f) or as otherwise approved in writing by DFH in its sole discretion.

      1. Licensed Pharmacists. Customers who are licensed pharmacists may display Products on their retail shelves. The prices advertised on the shelves must be no less than DFH’s suggested advertised retail prices, as set forth in DFH’s price lists, as amended by DFH from time to time in its sole discretion.

      2. Other Customers. Customers other than licensed pharmacists may display Products only at Customer’s place of business for sale to End Users under Customer’s care.

      3. Manner of Display. DFH, in its sole discretion from time to time, may revoke Customer’s authorization to display Products under this Section 3(f) or require Customer to comply with a minimum display height or other requirements determined by DFH.

    7. Product Claims. Customer shall not make any false or misleading representations regarding Products nor make any representations or warranties with respect to Products that are not contained within DFH’s patient or consumer literature describing Products.

    8. Adverse Events; Complaints.  Customer shall promptly report to DFH, by contacting DFH Customer Experience at (860) 623-6314 or support@designsforhealth.com, any adverse event or complaint about any Product or its use which is brought to Customer’s attention. Customer shall immediately report any serious adverse event to DFH so DFH may comply with FDA regulations concerning investigation and reporting of serious adverse events. Customer agrees to cooperate and provide reasonable assistance to DFH in the investigation of any adverse event or complaint.

    9. Restricted Products; Indemnification. Customer 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 Customer 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). Customer 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. Customer further acknowledges that Customer will be in a better position to know which Restricted Products, if any, it will sell in California. Accordingly, Customer agrees that it will not sell any Restricted Products to End Users in California unless Customer 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 Customer at a shipping address within the State of California will be pre-labeled with an appropriate warning under Prop 65 and Customer agrees not to remove or alter any such warnings on any such Product if sold in the State of California. If Customer sells Restricted Products in violation of the foregoing, Customer agrees to indemnify, defend, and hold DFH harmless for any claims, liability, or costs related to any sales made by Customer that do not comply with Prop 65, including reasonable attorneys’ fees and other court costs. Customer’s obligations under this subsection (i) shall survive termination of this Agreement.

    10. Changes to Channel and Advertising Restrictions. DFH reserves the right, in its sole discretion, without penalty or liability, to modify or remove the advertising, channel, and other restrictions in this Section 3 on prior notice to Customer. Customer shall comply with such restrictions.


Prop 65. Customer acknowledges that some 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 “Prop 65 Products” as used herein. Prop 65 Products shipped to Customer at an address outside the State of California may include the label statement “Not labeled for sale in California,” or a similar statement. A complete list of Prop 65 Products is available from DFH Customer Experience at (860) 623-6314 or support@designsforhealth.com. Customer also acknowledges that it would not be practicable for DFH to pre-label Prop 65 Products that are shipped to a non-California address with such warning given that Prop 65 Products so shipped would typically be sold to End Users outside California. Customer further acknowledges that Customer will be in a better position to know which Prop 65 Products, if any, it will Sell in California. Accordingly, Customer agrees that it will not Sell any Prop 65 Products to End Users in California unless Customer provides a warning, or warnings, including warnings on its website if authorized to Sell Products online, that comply with the requirements of Prop 65. Note that any Prop 65 Products sent to Customer at a shipping address within the State of California will be labeled by DFH with an appropriate warning under Prop 65 and Customer agrees not to remove or alter any such warnings on any Product if sold in the State of California. If Customer Sells Prop 65 Products in violation of the foregoing, Customer shall indemnify and hold DFH harmless for any claims, liabilities, or losses related to any Sales of Products by Customer that do not comply with Prop 65, including reasonable attorneys’ fees and other court costs.

  1. Care, Customer Service, and Other Quality Controls.  Customer shall comply with the attached DFH Quality Control Policy attached hereto as Schedule A, as DFH may amend from time to time.

  1. Term and Termination.

    1. Term. This Agreement starts on the Effective Date and continues for so long as the Customer’s Account is open (“Term”).

    2. Termination. This Agreement terminates automatically with no further action of the parties when Customer’s Account is closed (“Termination”). DFH may close Customer’s Account with or without cause and with or without notice at any time in its sole discretion. Customer may close its Account by contacting DFH Customer Experience at (860) 623-6314 or support@designsforhealth.com, or by other methods of contact that DFH makes available to its customers from time to time. 

    3. Events Upon Termination. Upon Termination: (i) DFH shall ship to Customer any Products in DFH’s inventory that have been paid for in full by Customer (if any), provided that the Customer has no other debts outstanding to DFH; (ii) DFH shall otherwise stop performing under the Agreement; (iii) Customer shall be prohibited from reselling Products unless DFH agrees otherwise in writing, (iv) all rights and licenses under this Agreement shall terminate; and (v) if Customer participates or has participated in the any rewards or commissions program, any commissions or rebates that have accrued that have not been paid out at the time of termination will be forfeited, regardless of the reason for termination.

    4. Termination for Breach.  DFH may terminate this Agreement immediately by written notice to Customer upon Customer’s breach of this Agreement, including, without limitation, Customer’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 Customer’s breach, in addition to the events set forth in Section 4(c) above, at DFH’s election: (i) all amounts Customer owes to DFH, if any, shall immediately become due and payable notwithstanding any payment terms or due dates to the contrary to which the Parties may have agreed; (ii) Customer 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 Customer. The repurchase price paid by DFH shall be the original price actually paid by Customer less a twenty (20%) percent restocking fee, provided that DFH shall not pay for any Products Customer received free of charge. DFH shall inform Customer 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 4(d) shall be in addition to, and not in lieu of, the consequences of termination set forth in subsection 4(c) above.

    5. Survival. The following Sections of this Agreement will survive the termination of this Agreement, in addition to any section in the Terms of Sale that by their terms survive termination: 1 (Customer’s Qualification), 2 (Authorized Users), 3 (Customer’s Responsibilities), 4 (Term and Termination), 5 (Remedies), 6 (Representations and Warranties), 7 (Business Entity Accounts),  and 8 (Miscellaneous Provisions).

  2. Remedies.

    1. Remedies Cumulative.  Any failure to comply with this Agreement is deemed a material breach and may result in Termination by DFH in its sole discretion.  DFH reserves all rights and remedies provided herein or available at law or in equity. Except as otherwise expressly set forth herein, all such rights and remedies 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.

    2. Injunctive Relief.  Customer 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 Customer of Section 3 of this Agreement (each such breach individually and all such breaches collectively, “LD Breach”).

      2. Customer and DFH each acknowledge and agree that:

        1. 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;

        2. 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;

        3. Liquidated Damages (defined below) are intended to compensate DFH for its monetary damages resulting from LD Breach;

        4. Liquidated Damages are intended to avoid controversy, delay, and expense in the event of LD Breach.

        5. 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.

        6. 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. 

      3. Obligation to Pay Liquidated Damages. In the event of LD Breach by Customer, its owners, employees, agents, or subcontractors, Customer shall pay to DFH liquidated damages in an amount equal to US$100.00 or the equivalent amount based on the current exchange rate 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 Customer Sells three (3) Products to a reseller in breach of the prohibition on Sales to resellers in Section 3 above, then that is considered thirty (30) LD Breaches subject to Liquidated Damages of $3,000.00.

      4. Payment of Liquidated Damages is due upon written demand. DFH may, but is not required to, invoice Customer for any Liquidated Damages and may retain Liquidated Damages from any payment otherwise due to Customer. Payment or assessment of Liquidated Damages does not release Customer from any obligations under this Agreement.

      5. Liquidated Damages constitute DFH's sole and exclusive monetary remedy for damages for LD Breaches by Customer, 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.

  3. Representations and Warranties. Customer represents, warrants, and covenants that:

    1. any protocols, dosage, prescribing and/or usage instructions for Products provided by Customer to End Users, including without limitation to combine intake of Products with other Products or other dietary supplements or drug products, are safe and present no health or safety hazard to such End Users;

    2. Customer and its authorized representatives will Sell, recommend, promote, prescribe, and/or administer Products strictly in accordance with applicable laws and regulations, and in accordance with the applicable medical or other healthcare standard of care; and

    3. Customer and its authorized representatives violate no law, rule, or regulation by executing this Agreement, opening an Account, buying and reselling Product, participating in any Designs for Sport rewards program, or accepting any commission or other benefit from DFH.

  4. Business Entity Accounts

    1.  Formation of Triparty Agreement; Joint and Several Liability. If:

      1. Customer (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), “Customer’s Contention,” and such business entity thereunder, the “Business Entity”); and

      2. the Business Entity is not a party to a “Designs for Sport Purchase Agreement” with DFH governing the purchase or sale of Products; and

      3. DFH fulfills or causes the fulfillment of Product orders placed through the Account or otherwise engages with the Account, with or without objecting to Customer’s Contention,

Then, by placing orders for Products: (x) such Business Entity, as of the Effective Date, joins the Customer as a party to this Agreement; (y) the Business Entity and the Customer shall be jointly and severally liable for Customer’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 Customer or the Business Entity. For the avoidance of doubt, notice from DFH to Customer 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 Customer, regardless of to whom the notice is addressed or directed.

  1. 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.

  1. 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. Business Associate Agreement.  DFH may provide services to Customer that would cause DFH to be a Business Associate under the Health Insurance Portability and Accountability Act of 1996, as amended, and Health Information Technology for Economic and Clinical Health (HITECH) Act privacy and security provisions of the Stimulus Act, as amended, and their implementing regulations (collectively, “HIPAA”). In the event DFH provides such services or DFH otherwise is deemed a Business Associate under HIPAA, the Business Associate Agreement applies, and the Parties hereby agree to its terms.

    3. Modifications; Waiver; Entire Agreement.  DFH shall have the right, in DFH’s sole discretion, to modify this Agreement from time to time, and the modified terms shall become effective on posting and acceptance by Customer. Otherwise, this Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of each party. DFH may restrict Customer’s access to purchase Products, to other benefits of being a Customer, or to other features of the Account unless Customer 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 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.  This Agreement shall also prevail over all future agreements between the parties titled “Designs for Sport Purchase Agreement” or covering substantially the same subject matter that are in browsewrap, clickwrap, or scrollwrap format (collectively, "Future DFS Purchase Agreements"). For the avoidance of doubt, future agreements that Customer signs on paper, or e-signs via e-signature platform such as DocuSign are not Future DFS Purchase Agreements and this Agreement does not prevail over such agreements.

    4. 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 8(d), “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.

    5. Jurisdiction; Venue. 

      1. U.S. Disputes. As to disputes arising from or related to Customer’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 Customer 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 Customer’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 Customer 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 Customer 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.

    6. 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.

    7. Notices.  Customer agrees that DFH may give it notices required by the Agreement (each a “Notice”) or otherwise respond to Customer at the address and/or email address DFH has on file for Customer’s Account or in any other manner reasonably elected by DFH. All Notices from Customer to DFH must be in writing and addressed to: (i) legal@designsforhealth.com; or (ii) “Designs for Health, Inc., 31 Lupi Court, Suite 110, Palm Coast, FL 32137, Attn: Legal Department”; or (iii) any other address DFH otherwise designates in writing. Customer shall deliver all Notices by email, personal delivery, or nationally recognized overnight courier. Unless Notice from Customer 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 8(g). Notice received after 5:30 p.m. on any business day will be deemed received the following business day.