Effective Date: 11/02/2023
1. Terms and Acceptance
The following terms and conditions (the "Agreement") shall govern the purchase and resale of BodyBio, Inc. ("BodyBio") products ("Products") by the person or entity identified in the foregoing Authorization/Application ("Reseller").
Submission of the attached application (“Application") and/or purchase of BodyBio’s Products indicates Reseller's agreement to the exact terms and conditions of this Agreement. No additional terms or conditions proposed by Reseller will be accepted by BodyBio or become a part of this Agreement. This Agreement contains the entire agreement of the parties. Failure of either party to enforce any of its rights under this Agreement shall not constitute a waiver of such rights or any other rights. No amendment to this Agreement shall be binding unless approved in writing by BodyBio. BodyBio may approve or reject Reseller's Application for any or no reason, in its sole discretion. Neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein or in the Application.
2. Services
Reseller represents that it has the experience, equipment and means to provide to resell BodyBio’s Products and will resell the Products in accordance with this Agreement in a professional manner in accordance with all applicable law, rules, regulation, orders or directives (collectively, “Applicable Law”) and BodyBio’s policies.
Reseller will not sell BodyBio Products (i) using inappropriate or illegal advertisements or claims in violation of the Federal Trade Commission Act, the Federal Drug and Cosmetic Act, or the Dietary Supplement Health and Education Act or the regulations under any of those Acts, the CAM SPAM ACT, or any other federal and state consumer protection laws, regulations and guidelines, (ii) using advertising on sites containing/promoting illegal activities, or (iii) in violation of BodyBio’s intellectual property rights or any provision of this Agreement.
Reseller may not resell BodyBio Products through participating website(s) that contain any viruses, time bombs, Trojan horses, worms, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information, or could otherwise be considered malware, or spyware. Reseller agrees that it will not engage in “domain recovery” or “domain redirection” strategies where misspelled versions of BodyBio.com or derivatives are used to capture indirectly typed-in search queries that result in traffic routed through qualifying links. Reseller will not compose its website in an illegal manner designed to pull Internet traffic away from the BodyBio.com website. Reseller will not spend advertising dollars on the keywords BodyBio, or any other Product names owned by BodyBio that would interfere with BodyBio’s own marketing.
3. Compliance. Reseller agrees to the following:
(a) Reseller shall only use materials authorized and approved by BodyBio or which contain only statements about BodyBio’s Products that are identical to the statements made by BodyBio.
(b) Reseller will not remove, alter or replace BodyBio’s labels on its Products or repackage the Products in any manner.
(c) Reseller will observe and abide by all of BodyBio’s copyrights, trademarks, and the like and shall not reproduce any BodyBio materials, graphics, logos, etc. without prior approval.
(d) Reseller will comply with Company’s Adverse Event Reporting Policy described in paragraph 11 below.
(e) When promoting, discussing or recommending any BodyBio Product, Reseller will include the following disclaimers on any written materials (including, without limitation, ads, marketing materials, webinar or presentation materials, emails, texts and any social media post) and verbally recite the following disclaimer when speaking with any patient, interviewer, podcast host, telephone or webinar presentation:
The statements about this product have not been evaluated by the Food and Drug Administration. This means that the FDA has not reviewed or approved the Product for safety or efficacy.
This product is not intended to diagnose, treat, cure, or prevent any disease. This means that the Product cannot be used to diagnose, treat, cure, or prevent any medical condition.
(f) Reseller shall not:
(i) make or imply, whether written or verbal, false or misleading statement about any BodyBio Product;
(ii) publish or use any false or misleading advertisement (whether by direct statement or by implication) about a BodyBio Product;
(iii) make or imply, whether written or verbal, any Product claim without having adequate substantiation about the claim;
(iv) make or imply, whether written or verbal, any Product claim or statement that has not been pre-approved by BodyBio.
4. Privacy; Data Protection
Reseller is responsible for determining what laws, including data privacy laws, to which Reseller and its business are subject in all jurisdictions in which Reseller operates. Reseller shall ensure that all personally identifiable information is collected, protected, processed, stored, and destroyed in accordance with applicable Data Protection Laws. At no time will Reseller transmit any personally identifiable information of a person other any Reseller to BodyBio.
5. Payment Terms; Taxes
Payment shall be due and payable in full at the time of order. Reseller shall be responsible for paying all taxes due on each purchase or providing BodyBio with a valid resale certificate in each state in which resales of Products may be made.
Reseller is responsible for determining the applicability of tax laws depending on the location of its operations, the scope of its activity, and other applicable criteria. Reseller agrees to comply with all applicable tax laws, and Reseller agrees that it is solely responsible for any tax obligation arising from or in connection with the sale of any Products.
6. Delivery and Return of Products
(a) BodyBio will deliver Products by common carrier F.O.B. BodyBio's warehouse. Title and risk of loss shall transfer from BodyBio to Reseller upon delivery of the Product by BodyBio to a common carrier; provided that, until paid in full, BodyBio retains, and Reseller hereby grants BodyBio, a purchase money security interest in the Product. Reseller shall promptly perform all actions necessary for BodyBio to effect and perfect such security interest. BodyBio shall not be responsible for insuring any shipment during transit unless paid for in advance by Reseller.
(b) BodyBio will not ship to storage units, shipping stores, freight forwarders or co-working spaces/shared office spaces unless otherwise approved.
E-mail [email protected] for clarification.
(c) Products may be returned up to 60 days from the date you received it. After 60 days, Product returns will not be accepted. To return a Product, please follow the instruction in our US Return policy or UK Return policy as applicable.
7. Internet Resale Prohibited
Reseller shall not advertise, list, offer for sale, sell or distribute any Product via the Internet, except through Reseller's wholly-owned website. Without limiting the generality of the foregoing, Reseller shall not sell Product via any third-party websites, mobile applications, or online marketplaces including Amazon.com and Ebay.com, and shall not advertise Product on the Internet except on Reseller's own website. Reseller shall not advertise using banner or pop-up advertisements, or using sponsored searches (e.g., Google AdWords, Yahoo! Search Marketing, or Bing Search Marketing).
8. Reseller/Distributor Resale Prohibited
Reseller shall not sell Product to anyone who Reseller suspects, knows, or reasonably should know, intends to resell or re-distribute the Product. Reseller shall only sell the Product in bona fide retail transactions to end users of the Products.
9. Minimum Advertised Pricing
Reseller shall abide by BodyBio's minimum advertised pricing policy, as may be updated from time to time, available at www.bodybio.com/map.
10. Quality Control
Reseller shall comply with all of BodyBio's quality controls, protocols, and instructions with respect to the Product, in order to maintain the quality of the Product, as may be updated from time-to-time by BodyBio. Reseller shall not sell BodyBio’s Products except in their original packaging as received from BodyBio.
11. Adverse Event Reporting
An adverse event is any adverse health outcome associated with the use of a dietary supplement. A serious adverse event is an adverse event that results in death, life-threatening illness or injury, inpatient hospitalization, a persistent or significant disability or incapacity, or a congenital anomaly or birth defect.
Reporting of Adverse Events
If Reseller becomes aware of an Adverse Event associated with the use of a dietary supplement manufactured, marketed, or distributed by BodyBio, they must report the event to BodyBio within 48 hours of becoming aware of the Adverse Event.
The information that must be reported to BodyBio includes: the identity of the person to whom the Adverse Event occurred; the identity of the person who reported the Adverse Event; the name of the suspect dietary supplement(s); and a description of the Adverse Event.
BodyBio will investigate all reports of Adverse Events and will determine any corrective actions that need to be taken. Reseller must assist BodyBio in obtaining any information needed to investigate the Adverse Event and report the event to the FDA.
BodyBio will maintain records of all Adverse Events reported and investigated. Records of Adverse Events will be kept for a period of at least six years. All records must be accessible to the FDA for review.
12. Injunctive Relief
The parties agree that breach of Sections 3, 4, 5, 6, 7, 8, 9 and 10 ("Sections") will irreparably harm BodyBio's brand reputation and goodwill. Accordingly, BodyBio shall have the right to seek injunctive or other equitable relief to prevent a breach or threatened breach of those Sections, without the necessity of posting a bond or other security.
13. Liquidated Damages
Reseller acknowledges that Sections 3-10 are necessary and proper in order to protect BodyBio's brand reputation and goodwill, and to preserve authorized resellers (including Reseller's) ability to make a reasonable margin on Product sales. Reseller agrees that if it violates the Sections, BodyBio will be damaged in an amount that will be difficult or impossible to ascertain. Accordingly, Reseller agrees to pay liquidated damages to compensate BodyBio for damages resulting from Reseller's breach of the Sections (the “Liquidated Damages”). The parties have made advance provision for Liquidated Damages to avoid controversy, delay and expense in the event of any breach of the Sections. Liquidated Damages shall be an amount equal to $200.00 for each separate breach for each day of breach. Each breach with respect to a Product shall be considered a separate breach for the purposes of this Section. For example, if Reseller is in breach with respect to three different Product for a period of 10 days, Reseller will be deemed to have committed 30 breaches and be subject to Liquidated Damages of $6,000.00. The Liquidated Damages are estimated based on the various damages that BodyBio expects to suffer upon any breach of these Sections, including lost sales; infringement of BodyBio's trademarks and other intellectual property; irreparable harm to BodyBio's business, customer relationships, goodwill and quality control procedures; and costs of investigating breaches. Reseller agrees that the Liquidated Damages 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 of proving the amount of loss and otherwise providing an adequate remedy to BodyBio.
14. Representations
Reseller's representations made in the Application and this Agreement are true and correct. Reseller shall promptly advise BodyBio if those representations are no longer true and correct, provided, that such notice shall not diminish or eliminate Reseller’s liability for misrepresentations made prior thereto.
Reseller shall not make any representations or warranties about BodyBio’s Products that are not expressly provided by BodyBio or that are in violation of rules, regulations, orders and directives of the Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”).
15. Independent Contractors
BodyBio's relationship with Reseller is that of an independent contractor. Nothing contained in this Agreement shall be construed to place the parties or their personnel in the relationship of employer and employee, partners, principal and agent, joint venturers or as an insurer or a representative of the other party to this Agreement. Reseller shall not have the authority to bind or obligate BodyBio nor shall Reseller hold itself out as having such authority.
16. Intellectual Property
All trademarks, trade dress, copyright and goodwill as they relate to the Products, as well as the packaging, image, merchandising and advertising materials related to the Products shall remain the sole and exclusive property of BodyBio and no rights thereto are granted to Reseller by virtue of this Agreement. Reseller shall have a personal, non-exclusive, non-assignable, non-sublicensable, non-transferable, revocable (by BodyBio at will) limited license to use BodyBio’s trademarks, trade dress, copyrights, packaging, image, merchandising and advertising materials related to the Products to resell the Products in accordance with this Agreement.
17. No Evaluation of Published Statements
Reseller acknowledges that no published statements about BodyBio’s Products have been evaluated by the FDA or any other government agency. None of BodyBio’s products are intended to diagnose, treat, cure, mitigate or prevent any disease and Reseller enters this Agreement with the understanding that BodyBio’s Products are not offered and will not be sold for such purposes.
The health information provided by BodyBio to Reseller is provided as an information resource only, and is not to be used or relied on for any diagnostic or treatment purposes. This information is not intended to be patient education, does not create any patient-physician relationship, and should not be used as a substitute for professional diagnosis and treatment.
Reseller will not represent, state, imply or suggest to any person that BodyBio’s Products have been evaluated by the FDA or other government agency or that BodyBio’s Products diagnose, treat, cure, mitigate or prevent any disease.
18. Disclaimer of Warranties
PROVIDED THE PRODUCT IS ONLY SOLD IN ACCORDANCE WITH THIS AGREEMENT. BODYBIO WARRANTS THAT THE PRODUCT WILL CONFORM TO THE cGMP REQUIREMENTS LISTED IN SECTION 8 OF NSF/ANSI 173. OTHERWISE, BODYBIO’S PRODUCTS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER STATUTORY OR COMMON LAW WARRANTY.
19. Limitation of Liability
EXCEPT FOR RESELLER’S VIOLATIONS OF SECTIONS 3-9, AND RESELLER’S INDEMNIFICATION OBLIGATIONS IN SECTION 20, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM OR RELATING TO ANY BODYBIO PRODUCTS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BODYBIO'S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNT PAID BY RESELLER OR ITS CUSTOMER FOR THE PRODUCT GIVING RISE TO THE ALLEGED LIABILITY.
20. Termination; Suspension; Survival
This Agreement may be terminated by either party at any time, with or without reason, by giving the other party written notice of such termination. In lieu of termination, BodyBio may elect to suspend Reseller for breach until Reseller has cured such breaches to BodyBio's satisfaction. Upon termination or suspension of this Agreement, Reseller shall not be entitled to order additional Products from BodyBio and the limited license to sell BodyBio’s Products and use its intellectual property shall immediately cease. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
21. Indemnification
Reseller agrees to indemnify and hold harmless BodyBio, its affiliates and their respective officers, directors, members, shareholders, employees and/or agents (collectively, “BodyBio Indemnitees”) from any claims of any kind whatsoever, including attorney fees and related expenses, in any manner caused by, arising from, incident to, or growing out of the negligence, malfeasance of Reseller, violation of this Agreement or any actual or alleged violation of Applicable Law by Reseller.
BodyBio may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification. BodyBio may participate in the defense of all claims as to which it does not assume defense and control, and Reseller will not settle any such claim without BodyBio's prior written consent.
22. No Reverse Engineering
Reseller agrees that it shall not reverse engineer, duplicate or copy the Products, nor have any Products reverse engineered, duplicated or copied by any third party for Reseller’s or any third party’s benefit.
23. Governing Law; Disputes
The laws of New Jersey, without giving effect to its principles of conflicts of law, govern any dispute arising in connection with this Agreement. Any proceeding arising out of this Agreement may be brought only in the state or federal courts of New Jersey, and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Reseller shall pay BodyBio's legal fees in connection with enforcing this Agreement.
24. Notices
All notices hereunder shall be in writing and shall be deemed to have been-given when hand delivered or mailed by registered or certified mail, to the address set forth on the Application, or to such addresses as the parties shall designate.
25. Assignment
Reseller's rights and/or obligations under this Agreement may not be transferred or assigned in any manner, to any other person or entity, without the written consent of BodyBio, which may be granted or withheld in its sole discretion.
26. Force Majeure
BodyBio will not be liable to Reseller by reason of any failure or delay in the performance of its obligations hereunder on account of shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, earthquakes, interruptions in telecommunications services or internet facilities, epidemics, pandemics or any other cause which is beyond the reasonable control of BodyBio.
Version 2.0 11/3/2023
