*These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure, or prevent any disease.
Effective Date: 08/26/2025
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. Online Sales
Reseller shall not advertise, list, offer for sale, sell or distribute any Product via the Internet, except through Reseller's wholly-owned website operated in Reseller’s legal name or registered fictitious in compliance BodyBio Online Sales Guidelines, attached as Exhibit A, as BodyBio may amend from time to time. 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, Walmart.com, Tik Tok 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 acknowledges that it is subject to BodyBio's minimum advertised pricing policy, as may be updated from time to time, available at www.bodybio.com/map. This section is for informational purposes only. BodyBio’s MAP Policy is not an agreement between BodyBio and Reseller. BodyBio does not seek and will not accept any promise of compliance with its MAP Policy from any Reseller or other party.
10. Product Care, Customer Service, and Other Quality Controls
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, including the BodyBio Product Care, Customer Service, and Other Quality Controls, attached as Exhibit B, as may be updated from time-to-time by 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 3.0 February 10, 2025
EXHIBIT A
BODYBIO ONLINE SALES GUIDELINES
EXHIBIT B
BODYBIO PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (“Agreement”) is made and entered into as of the 14th day of May, 2025 (the “Effective Date”), by and between: BODYBIO INC. (“Company”), a New Jersey corporation with its principal place of business located at 45 Reese Road, Millville, New Jersey, USA, 08332; and RETAIL STORE NAME (“Distributor”), with its principal place of business located at ADDRESS OF LOCATION.
WHEREAS, the Company is engaged in the business of manufacturing, selling and distributing nutritional products;
WHEREAS, Distributor exports, warehouses and distributes similar products of the kind manufactured by the Company; and
WHEREAS, Distributor represents that it has the facilities, personnel and marketing expertise to promote, distribute and sell products of the kind manufactured by Company into various markets as described herein and desires to purchase such products from Company for distribution and sale on and subject to the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
APPOINTMENT OF DISTRIBUTOR.
1.1 Upon the terms and conditions stated in this Agreement and Appendix C Terms & Conditions, Company appoints Distributor as the Company's nonexclusive distributor of the Products listed on Appendix A (the “Products”) to customer locations in the territory listed in Appendix B (the “Territory”) and solely for use in the market(s) listed in Appendix B (the “Market”) subject to the Existing Distributors described below and the terms of this agreement.
Company may from time to time amend and remove any Product that Company ceases to manufacture from Appendix A. The Parties may also agree to, in writing, to add Products to Appendix A.
At any time, the parties may mutually agree in writing to enlarge or to decrease the Territory or change the targeted end-use Market.
1.2 Distributor accepts the appointment as the distributor of the Products in the Territory. Distributor will use its best efforts to develop and to promote sales and distribution of the Products in the Territory for use in the Market. Distributor understands and agrees its performance under this Agreement will be judged primarily based on Distributor's promotion and sale of the Products in the Territory for use in the Market with quarterly reviews of the account, including but not limited to depletion reports.
1.3 Neither party is nor shall either party hold itself out as the agent of the other. The parties are entering into this Agreement as, and shall continue to be, independent contractors. The parties agree that no agency, partnership, franchise, joint venture, employment, or other association shall be deemed created by this Agreement. Neither party shall have authority to act for or make any representations or warranties on behalf of the other party or to act for or to bind the other in any way, except as expressly provided by this Agreement. Neither party will have the authority to sign the name of the other, or to represent that it is in any way responsible for any act or omission of the other.
ARTICLE II
TERM
The initial term of this Agreement will be for a period of twelve (12) months from the Effective Date (the “Initial Term”) unless earlier terminated pursuant to Article 8 of this agreement, but will automatically renew for successive one-year terms (each a “Renewal Term”) upon the expiration of the Initial Term or a Renewal Term unless either party provides written notice to the other party not less than sixty (60) days in advance of the end of the then-current Initial Term or Renewal Term of its intent not to renew this Agreement.
ARTICLE III
PRICES AND TERMS OF SALE
3.1 Company will sell all Products to Distributor, and Distributor will purchase Products from Company, at Company's published distributor price for the Territory as of the date each order is placed, which shall be communicated separately by the Company through a pricing letter and list distributor pricing. The parties may negotiate special prices from time to time in response to mutually agreeable special competitive conditions. These special price terms will be confirmed in writing by an authorized representative of the Company without the need for a more formal amendment to this Agreement. Company standard terms and conditions attached hereto as Appendix C shall apply to all sales of Products hereunder except to the extent, if any, that such terms conflict with the terms set forth in this Agreement.
3.2 All orders by Distributor will be subject to acceptance by Company. Company may indicate its acceptance personally or by e-mail, telephone, or any other method acceptable to both parties. Company will not unreasonably delay acceptance or rejection of any order.
3.3 Company will ship Products to Distributor on the terms set forth in the distributor pricing letter periodically sent by Company to Distributor.
3.4 Unless otherwise confirmed in writing by Company and Distributor, Distributor will pay for all Products ordered from Company prior to shipment and in accordance with the payment terms in effect between Distributor and Company as of the date of delivery or shipment in United States Dollars.
3.5 Company warrants, as of the date of delivery or shipment, as specified in the delivery terms for each order, that all Products sold pursuant to this Agreement will conform to Company's published specifications (subject to all limitations stated in those specifications). Except as otherwise provided in this Paragraph, COMPANY MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NO WARRANTY OF MERCHANTABILITY, AND NO WARRANTY AS TO USE OR SALE OF THE PRODUCTS IN COMBINATION WITH OTHER MATERIALS OR ALONE. In the event of breach of the warranty herein, the parties will negotiate in good faith to resolve the breach by the most economical means.
3.6 Distributor agrees to comply with Company’s Authorized Seller Program policies, as may be in effect from time to time and as applicable to Distributor. Any Authorized Seller Program policies, as may be in effect from time to time and as applicable to Distributor, issued by Company shall be deemed to supplement the terms of this Agreement; however, to the extent that any term of this Agreement directly conflicts with any term of applicable Authorized Seller Program policies, the terms and provisions of this Agreement shall control.
ARTICLE IV
RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1 Distributor shall not sell or promote Products to customers located outside the Territory or for use outside the Markets without the prior written consent of the Company. Distributor will use its best efforts actively and diligently to promote the sale of the Products to customers solely in the Territory and in the Markets. In this regard, Distributor (a) will employ competent and experienced sales personnel and representatives; (b) will maintain and provide adequate warehouse facilities in the Territory and will maintain the insurance coverages set forth in Appendix D at all times during the term of this Agreement; (c) will maintain inventory of the Products sufficient to meet the known commercial demands for the Products for use in the Markets in the Territory; (d) will comply with all laws and regulations applicable to the sale, storage and transportation of the Products, including those relating to environmental protection and safety; and (e) will inform customers and potential customers about the nature and availability of the Products for use in the Markets in the Territory. Without in any way limiting the foregoing:
4.2 Distributor will confer and actively cooperate with Company to implement marketing, advertising, or other promotional programs. Distributor will only use marketing, advertising and promotional materials (collectively, “Materials”) provided by or preapproved in writing by Company. If Distributor desires to use any additional Materials, it will submit such Materials for approval to Company and will not use such submitted Materials unless and until they have been approved by Company in writing. Distributor will act in accordance with all applicable Food & Drug Administration (FDA) and Federal Trade Commission (FTC) requirements. Distributor will also ensure that all Materials are compliant with the applicable rules and regulations for each Territory in which they are published, promoted and sold.
Company will promptly review the Materials for: correctness of any scientific and technical information; proper use of Company's trademarks, trade name, and the names of the Products; information concerning the relationship of the parties that could mislead a third party; and any other factors that may impair Company's name and reputation or cause Company to be in violation of any laws within the Territory. Company will not unreasonably withhold or delay its approval of Distributor's Materials.
4.3 Confidentiality of Company Information. Distributor will take all reasonable steps to keep in confidence all Company Information that is disclosed in confidence and marked as “confidential” or if disclosed orally or otherwise is confirmed in writing as being confidential. Distributor will use such confidential information solely to fulfill the purpose of this Agreement.
The obligations of confidentiality imposed by this Agreement will not apply to any Company Information that:
The obligations of confidentiality and restricted use of the Company Information and the obligations of indemnification will continue for five (5) years after the expiration of the Term or other termination of this Agreement; provided, that Distributor shall continue to protect the confidentiality of any trade secrets of the Company for so long as the Company treats such information as a trade secrets. “Trade secrets” shall have the definition provided by the US Defend Trade Secrets Act of 2016.
4.4 Distributor will promptly report to Company or its designated representative all customer complaints concerning the use and application of Company's Products and will cooperate with Company in the appropriate handling of all complaints with the intent of achieving customer satisfaction.
4.5 Each party will conduct itself in a manner that will protect and promote the other's goodwill and reputation and will avoid any activity detrimental to the good will or reputation of the other. For a period of ten (10) years immediately following the termination of Company’s relationship with Distributor, for any reason or no reason, the parties hereto agree and represent that the parties shall not make any statement disparaging each other, or any manager, officer, director, employee, owner, agent, or other service provider for the parties hereto or its subsidiary(ies), or any product or service offered by either party.
4.6 Company reserves the right to review Distributor's sales and marketing performance of the BodyBio brand at any time. The parties recognize that it is possible to define objectively only a portion of what sales and marketing performance is satisfactory or unsatisfactory. One such measure of satisfactory performance, but not the only measure, will be Distributor's sales volumes sold in the Territory, but Company reserves the right to assess Distributor's performance against such additional criteria as Company may determine from time to time (including, without being limited to, truth in advertising, reputation in the market, compliance with federal, state and local laws, level of customer service, customer complaints, refunds, technical knowledge, and marketing strategy). If Company determines, in good faith, that Distributor's sales and marketing performance is unsatisfactory, Company will give Distributor sixty (60) days to improve its performance, with needed improvements being stated in writing. If Distributor's performance does not improve to Company's satisfaction by the end of the sixty (60) days, then Company may terminate this Agreement without liability upon written notice to Distributor.
4.7 Distributor shall familiarize itself and its employees with Company’s published information related to the safe handling, transportation, disposal and use of the Products, including product brochures, product bulletins, and other information. Company shall have the right, but not the obligation, to audit the operations and procedures of Distributor to determine whether Distributor is handling the Products in a correct manner. If Company determines Distributor’s current operating procedures are unsafe Company may cease further delivery of Product or require Distributor to change or improve its procedures. If Distributor fails to make the requested changes within thirty (30) days, Company shall have the right to terminate this Agreement with immediate effect and without liability to Company.
ARTICLE V
INDEMNIFICATION
5.1 Distributor will indemnify and hold Company harmless from and against any and all claims that arise from or are in any manner related to (i) the breach of any provision of this Agreement by Distributor, its employees or agents, (ii) the negligence or intentional misconduct of Distributor or its employees or agents in distributing the Products and performing its obligations under this Agreement., or (iii) a violation of applicable law, rule, regulation or order applicable to the Products for which Distributor was responsible or by Distributor or its employees or agents.
5.2 Company will indemnify and hold Distributor harmless from and against any and all third party liability claims that arise from or are in any manner related to (i) a breach of the warranty provided in Section 3.5 of this Agreement, (ii) the negligence or intentional misconduct of Company or its employees or agents in performing its obligations under this Agreement, or (iii) a violation of any law, rule, regulation or order applicable to the Products for which the Company was responsible or by the Company or its employees or agents.
5.3 The parties' respective obligations to indemnify and to hold harmless will extend to reasonable attorneys' fees, expert witnesses' fees, court costs and other reasonable litigation expenses incurred in defending against or resolving any claim for which the other party is to be indemnified. Further, the parties' respective obligations to indemnify and hold harmless will extend to the parties and their affiliates and all directors, officers, agents and employees of any of these entities. THE PARTIES' RESPECTIVE OBLIGATIONS OF INDEMNIFICATION WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXTEND TO INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.
ARTICLE VI
TRADEMARKS; INTELLECTUAL PROPERTY
6.1 Company owns the patents, trademarks, trade names, trade dress, packages and designs associated with the Products (collectively the “Intellectual Property”), and Distributor recognizes Company's rights in, and to, the Intellectual Property. Distributor will be granted a limited license to use the Intellectual Property only in connection with the sale and advertisement of the Products and only in a form and manner that is satisfactory to Company and consistent with the Company’s Intellectual Property use policies.
6.2 Distributor will inform Company without delay of any infringement of the Intellectual Property that comes to Distributor's attention and of all claims threatened or filed against Distributor due to Distributor's use of the Intellectual Property. Company, in its sole discretion, may, but will not be required to, take appropriate measures to suppress any such infringement. Distributor will cooperate with Company in the event Company decides to take any enforcement action against infringers or to defend Distributor against infringement claims.
6.3 During and after the term of this Agreement, except as required by law for Distributor to perform its obligations under this Agreement or except as otherwise agreed by the parties in writing, Distributor will not directly or indirectly register or attempt to register in its own name with any governmental authority any of the Intellectual Property or any trademark, trade name, label or package design confusingly similar to the Intellectual Property, without the Company’s prior written consent which is may withhold in its sole discretion.
6.4 Upon termination of this Agreement, Distributor will immediately stop using all the Intellectual Property, Distributor will abandon or terminate any of the registration of Intellectual Property Distributor may have had to register in its own name for purposes of this Agreement, and Distributor will claim no right whatsoever in, and to, the Intellectual Property.
ARTICLE VII
FORCE MAJEURE
No liability shall result from delay in performance or non-performance that is directly or indirectly caused by Act of God; fire, explosion, or flood; war or act of terrorism; act of or authorization by any government; pandemic; accident; labor trouble or shortage; process contamination, equipment failure; inability to obtain from usual sources of supply fuel, power, material, equipment or transportation; commercial impracticability; failure of computer systems to operate properly or alteration, destruction or loss of electronic records or data; or any other circumstances beyond the control of the party affected (collectively, “Force Majeure”).
Company shall have no obligation to provide supplies of the Products specified herein to enable Distributor to perform this Agreement. If for any reason Company is unable to supply the total demands for the Products, then without liability for any failure to perform under this Agreement, Company may allocate its available supply among its distributors, other customers and divisions of Company and may alter shipment dates to any of these persons, all on whatever basis Company in good faith deems fair and reasonable.
ARTICLE VIII
TERMINATION OF AGREEMENT
8.1 Either party may terminate this Agreement at any time immediately upon written notice to the other party upon the occurrence of any of the following:
8.2 Either party may terminate this Agreement for cause if the other party is in breach of any obligation under this Agreement and such breach is not cured within thirty (30) days’ notice from the non-breaching party specifying the alleged breach.
8.3 Either party may terminate this Agreement without cause upon sixty (60) days written notice to the other. If Company terminates this Agreement without cause, Distributor will have sixty (60) additional days from the date of termination to sell any Product held in inventory by Distributor provided such sales are in compliance with the requirements set forth in this Agreement.
8.4 Except as otherwise provided in this Agreement, termination of this Agreement will be without prejudice to and will not constitute a release or waiver of any claims or rights that either party may have against the other.
8.5 Upon the termination of this Agreement for any reason, Distributor will transfer to the Company or its designee all government and industry association approvals and registrations obtained by Distributor for the sale of the Products throughout the Territory at no cost to the Company and Distributor will stop representing itself as authorized to deal in Company's Products, and all pending orders by Distributor will be automatically canceled unless otherwise agreed to in writing by Company. Distributor waives any right to damages or compensatory payments arising from termination by the Company in accordance with the terms of this Agreement.
8.6 To the maximum extent feasible and as soon as practicable following termination of this Agreement, Distributor will remove all printed material relating to the Products from its sales manuals, websites, social media sites, and will discontinue use of any display materials containing any references to Company's Products on or about Distributor's premises. Distributor will promptly return to Company all Information and Materials then in Distributor's possession, without keeping any copies or making any further use of that information.
ARTICLE IX
GENERAL TERMS
9.1 The parties will try in good faith to resolve all disputes and claims arising under this Agreement. If the parties cannot amicably settle their differences, the parties will submit all unresolved differences to arbitration. Arbitration will be held in the State of New Jersey, USA by a single arbitrator selected in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator will be final and binding on all parties, and judgment upon any arbitrator's decision may be entered in any court having competent jurisdiction over like matters.
9.2 Neither party may assign this Agreement, or any right granted by this Agreement without the prior written consent of the other party.
9.3 All notices, invoices, writings, agreements in writing and communications under this Agreement will be deemed to have been sufficiently given if delivered in person or by electronic mail with confirmation of receipt or if sent by mail or an express courier of international repute prepaid to the address first set forth above or to other addresses that the parties may designate from time to time in a proper notice. If delivered in person, the effective date of the notice or request will be date of delivery. If sent by mail or express courier, the effective date of the notice or request will be the date of mailing or transmission. If sent by electronic mail, the effective date shall be the date of transmission, provided, however, that receipt of any such electronic mail must be confirmed by the other side within 48 hours; if receipt is not confirmed, notice shall be effected only through one of the other methods authorized under this section 9.3.
All notices shall be given as follows:
If to the Company:
BODYBIO INC.
Attention:
45 Reese Rd, Millville, NJ 08332
Telephone: (856) 825-8338
Electronic mail: [email protected]
If to the Distributor:
Attention: Point of Contact
Telephone:
Electronic mail:
9.4 This Agreement supersedes all prior Agreements between the parties on this subject, whether oral or written and presents the entire agreement of the parties with respect to the distribution of Products in the Territory. Neither party has made or authorized anyone to make, and neither party has relied upon or authorized anyone to rely upon, any representations, understandings, terms, conditions, or agreements on this subject that are not stated in this document. If any governmental authority with jurisdiction in such matters renders any clause, sentence, paragraph or part of this Agreement invalid or unenforceable under a judgment, law, statute or regulation, the remainder of this Agreement will remain in full force and effect.
9.5 Except as otherwise stated in this Agreement, the terms and conditions of this document will prevail over any conflicting provisions in any purchase order, acknowledgment of purchase order or invoice issued pursuant to this Agreement.
9.6 Any waiver by either party of a breach of any term or condition of this Agreement will not act as a waiver of any subsequent breach of the same or a waiver of any other term or condition of this Agreement.
9.7 All remedies are cumulative, and for any breach either party may obtain all relief available at law and in equity.
9.8 This Agreement will be construed without regard to which party wrote it. The headings in this Agreement are for convenience only and will not be construed to affect the meaning of the Agreement or the intent of the parties. This Agreement will be governed by the laws of the State of New Jersey without regard to conflicts of law provisions. The United Nations Convention on the International Sales of Goods shall not apply to this Agreement or to the sale of Products hereunder. The federal and state courts located in the State of New Jersey shall have the exclusive jurisdiction to enforce any decisions of an arbitrator acting pursuant to Section 9.3 of this Agreement and hearing any disputes arising out of or related to this Agreement, and each Party accept service of process as set forth in Section 9.3 above.
9.9 This Agreement may be amended only by a writing signed by both parties.
9.10 Each party represents that the person signing this Agreement on its behalf is properly authorized to do so.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Distribution Agreement as of the dates indicated below.
APPENDIX A
PRODUCTS & PRICING
|
ITEM # |
DESCRIPTION |
RRP Retail Wholesale |
|
|
Minerals |
|||
|
EC16 |
Elyte (16 oz.) |
$30.99 |
$15.50 |
|
EC4 |
Elyte (4 oz.) |
$9.99 |
$5.00 |
|
RM4 |
ReMineralize (4oz liquid) |
$39.99 |
$20.00 |
|
BodyBio PC |
|||
|
PC300 |
BodyBio PC (300 softgels) |
$199.99 |
$100.00 |
|
PC100 |
BodyBio PC (100 capsules) |
$85.99 |
$43.00 |
|
PC60 |
BodyBio PC (60 softgels) |
$60.99 |
$30.50 |
|
PC16 |
BodyBio PC (16 oz. liquid) |
$199.99 |
$100.00 |
|
PC8 |
BodyBio PC (8 oz. liquid) |
$110.99 |
$55.50 |
|
PC4 |
BodyBio PC (4 oz. liquid) |
$60.99 |
$30.50 |
|
Essential Fatty Acids |
|||
|
BO180 |
BodyBio Balance Oil (180 softgels) |
$41.99 |
$21.00 |
|
BO60 |
BodyBio Balance Oil (60 softgels) |
$19.99 |
$10.00 |
|
BO16 |
BodyBio Balance Oil (16 oz. liquid) |
$36.99 |
$18.50 |
|
EPO180 |
Evening Primrose Oil (180 softgels) |
$69.99 |
$35.00 |
|
EPO8 |
Evening Primrose Oil (8 oz. liquid) |
$52.99 |
$26.50 |
|
SPM60 |
Fish Oil+ (60 softgels) |
$64.99 |
$32.50 |
|
Gut Health |
|||
|
BUCM250 |
Calcium/Magnesium Butyrate (250 capsules) |
$75.99 |
$38.00 |
|
BUCM100 |
Calcium/Magnesium Butyrate (100 capsules) |
$36.99 |
$18.50 |
|
BUS100 |
Sodium Butyrate (100 capsules) |
$36.99 |
$18.50 |
|
BUS60 |
Sodium Butyrate (60 capsules) |
$26.99 |
$13.50 |
|
Other |
|||
|
TU60 |
TUDCA (60 capsules) |
$59.99 |
$30.00 |
|
BVH90 |
Vitamin B+ (90 capsules) |
$35.99 |
$18.00 |
|
CALM60 |
BodyBio Calm (60 capsules) |
$54.99 |
$27.50 |
|
LVC60 |
Liposomal Vitamin C (60 capsules) |
$39.99 |
$20.00 |
|
LG60 |
Liposomal Glutathione (60 capsules) |
$70.99 |
$35.50 |
APPENDIX B
TERRITORY AND MARKET
Territory: United States
Market: Direct to consumer. Distributor shall not sell or transfer Products to any person or entity Distributor knows or has reason to know intends to resell the Products. Distributor shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use.
APPENDIX C
DISTRIBUTOR TERMS & CONDITIONS
The following terms and conditions shall also govern the purchase and resale of BodyBio, Inc. (“BodyBio”) products (“Product”) by Distributor.
