Designs for Health, Inc. • Wholesaler Ordering Conditions
By checking the box below, I, the person named above, for myself and on behalf of the company named above (if any), being duly authorized, agree to the following terms as a condition to establishing and/or maintaining an account with Designs for Health, Inc. (“DFH”):
1. REQUIREMENTS FOR WHOLESALE PRICING.
I understand, acknowledge and agree that: (i) DFH products (“Products”) are offered at wholesale prices only to qualified health care professionals and entities having one or more employees identified by DFH as qualified healthcare practitioners; (ii) the determination of whether any person is a qualified healthcare practitioner that qualifies for wholesale pricing shall be at DFH’s sole discretion; and (iii) I will submit to DFH and maintain on file with DFH at all times a copy of my (or my employee’s) current practitioner’s license, professional degree certificate, diploma or other appropriate credentials.
2. RESTRICTED DISTRIBUTION.
I agree to sell Products only to individual patients under my care. I will not to sell Products outside Canada, directly or indirectly. I further agree not to buy Products on behalf of nutritional supplement retailers without a written authorization of DFH and that if I sell Products to such retailers in violation of this agreement, then any sales by any such retailers shall be attributed to me for purposes of determining liquidated damages set forth in Section 5.
A. Online Discounting Prohibited
I agree that I will not sell, offer to sell, or claim or suggest that I will sell, Products at a discount from DFH’s suggested retail price on any website, in any social media (e.g., Facebook and Twitter), or in any Internet advertising, including banner advertisements, pop-up advertisements and sponsored searches (e.g., Google AdWords, Yahoo! Search Marketing, and Bing Search Marketing).
B. Websites Must Identify QHP
I agree that, if I sell Products on the Internet, I will: (i) provide DFH with the URL of any website through which I sell Products; and (ii) conspicuously state on any website through which I sell Products (i.e., the home page, “About Us” page or “Contact Us” page), the name, address and phone number of the qualified healthcare professional who’s credentials are on file with DFH page.
C. Unauthorized Representations and Warranties
I agree 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 literature describing the Products.
D. Adverse Event Reporting.
I agree to promptly notify DFH of any complaint or adverse claim about any Product or its use of which I becomes aware and to provide reasonable assistance in the investigation of any such complaint or claim.
4. TERM; TERMINATION.
Unless sooner terminated as provided herein, this Agreement shall commence on the Effective Date and continue in full force and effect for a period of one (1) year (“Term”) and shall automatically renew for additional terms of one (1) year unless written notice is provided by the terminating party to the other party prior to the anniversary of the Effective Date.
Either party may voluntarily terminate this Agreement upon written notice, whether due to a breach of this Agreement or otherwise.
C. Termination Due to Breach.
If this Agreement is terminated by DFH due to my breach of this Agreement, at DFH’s election, DFH may repurchase all Products I have on hand within fourteen (14) days of notice of termination, with the cost of shipping paid by me. The repurchase price paid by DFH shall be the original price actually paid by me less a 20% restocking fee. DFH shall inform me in its notice of termination whether it elects to repurchase any Product and shall pay for the repurchase within 30 days of receipt of the Product.
Any failure to comply with this Agreement shall be a material breach and will entitle DFH to terminate this Agreement and my 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.
B. Injunctive Relief.
I acknowledge that a breach of this Agreement may 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.
C. Liquidated Damages.
I acknowledge 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 nutraceutical products. I acknowledge and agree that if I fail 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, I agree to pay the amount of liquidated damages set forth below in subsection (d) of this Section 6 (the “Liquidated Damages”). Liquidated Damages are intended to compensate DFH for its monetary damages resulting from my breach of my obligations under Section 3 of this Agreement. I understand that making advance provision for Liquidated Damages is intended to avoid controversy, delay and expense in the event I breach any of the obligations under Section 3 hereof. DFH may, but shall not be required, to invoice me for any Liquidated Damages assessment and may retain Liquidated Damages from any payment otherwise due me. Payment or assessment of Liquidated Damages will not release me from any obligations under this Agreement.
If I breach my obligations under Sections 3 or 4 of this Agreement, then I will pay DFH Liquidated Damages in an amount equal to $200.00 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. The Liquidated Damages are being estimated based on the various damages that DFH would expect 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 my breach of Section 3 of this Agreement or that of any of my owners, employees, agents or subcontractors. Nothing in this Section will preclude DFH from terminating this Agreement based on my breach at any time after an infraction, or from seeking monetary or other damages if I fail to perform my obligations in a manner that conforms in all respects to the requirements of this Agreement. I acknowledge and agree 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 my breach of Section 3 of this Agreement.
6. ELECTRONIC COMMUNICATIONS CONSENT.
I authorize DFH to send electronic communications to me regarding DFH products, services, events and other important information and announcements. I may opt out from receiving further electronic communications at any time.
7. LIMITATION ON LIABILITY.
EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER DFH NOR I WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. DFH’S LIABILITY FOR MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCT TO BE PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED THE PRICE OF THE PRODUCTS AT ISSUE. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE LEGAL THEORY OF LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY WHATSOEVER.
8. ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior agreement with respect thereto.