BIOTICS RESEARCH CORPORATION:
AGREEMENT WITH AUTHORIZED RESELLERS
Biotics Research Corporation (“Biotics”) manufactures dietary and nutritional supplements for resale. To protect the integrity and reputation of Biotics, its products, professional customers, and patients who use Biotics-branded products, Biotics enters this Agreement with (Individual’s Name) and (Company Name) (each of which is referred to herein as “Reseller”), with an address at (Physical Address of Company) to define the standards which Reseller must meet to be and remain an Authorized Reseller as defined herein of Biotics products, and the practices with which Reseller must comply to be and remain an Authorized Reseller which is eligible to purchase Biotics products for resale to “Eligible Patients/Clients” as defined herein, effective as of the “Effective Date” as defined in Para. 17 herein.
1. Authorized Resellers. To remain an Authorized Reseller, Reseller must be a licensed, certified or degreed health care professional, or a student currently enrolled in programs to obtain such license, certification or degree, who personally evaluates and treats or makes nutritional recommendations to Eligible Patients/Clients. If Reseller was appointed by Biotics’ Authorized Distributor (“Distributor”), Reseller shall comply in all respects with the terms of such appointment, provided that such appointment is always subject to Reseller’s agreement to and compliance with the terms hereof.
2. Eligible Patients/Clients. Reseller shall sell Biotics products only to Eligible Patients/Clients, who are current patients or clients of Reseller, meaning individuals who have been personally evaluated or treated by Reseller within 12-months prior to any sale of Biotics products. Reseller shall directly sell Biotics products only to Eligible Patients/Clients who are the end-users, and shall not sell to anyone for resale; nor shall Reseller sell to an Eligible Patient/Client for use by someone other than the specific Eligible Patient/Client. Authorized Resellers shall maintain the following minimum files on all Eligible Patient/Client to whom Biotics products are sold: case history, personal one-on-one evaluations and/or observations (and whether evaluations and observations are in person, phone call or video conference), scheduled follow-ups, and Biotics supplements purchased. In the event that Biotics challenges Reseller’s compliance with this Para. 2, Reseller shall provide documentary proof within HIPAA regulations that Reseller’s sales are made to Eligible Patients/Clients only, and Reseller’s failure to do so shall be ground to terminate Reseller’s right to sell Biotics products.
3. Place of Resale. Reseller shall sell or ship Biotics products exclusively from Reseller’s offices (“Office/Facility”) where Reseller provides healthcare services at the address given to Biotics in Para. 10 herein, provided that Reseller may submit orders directly to Biotics or give authorization for Biotics or Distributor to ship Biotics products directly to an Eligible Patient/Client. Notwithstanding anything herein to the contrary, Reseller shall NOT sell or ship product to any customer in California, unless Reseller’s Office/Facility is in California (which sale would violate the California Safe Drinking Water and Toxic Enforcement Act of 1986 without the special warnings on the packaging required by California law). Reseller acknowledges that any such prohibited sales by Reseller may result in significant fines to Reseller under California law. Nor shall Reseller in the United States sell or ship to any customer outside of the United States.
4. Advertising and Pricing by Reseller in the Office/Facility. Reseller may advertise the sale of Biotics products in Reseller’s Office/Facility only with content that is legal, truthful, dignified, and upholds Biotics reputation for product quality. Reseller shall not cover up or change any content on Biotics product labels. Reseller may, by print or display advertising only within the Office/Facility, offer Biotics products for sale at any price, whether above or below Biotics’ Manufacturer Suggested Retail Price (“MSRP”).
5. Advertising and Pricing by Reseller Outside of the Office/Facility. Reseller’s advertising of Biotics products in every medium, e.g., print advertising, television, radio, social media, website, which is disseminated outside of the Reseller’s Office/Facility must: (a) identify the Reseller (including the name of the individual health care professional and the Reseller’s legal business name if other than the person’s name) by full legal name (and must not use any other name to advertise or sell Biotics products) and by the physical address of the Reseller’s Office/Facility stated herein, (b) state that Reseller is authorized to sell Biotics products only to Eligible Patients/Clients who are existing patients/clients and patients/clients who have had an Office/Facility visit, video or phone consultation with the documentation required by Para. 2 herein, for evaluation and/or treatment with the Reseller at the Reseller’s Office/Facility within 12 months before any purchase, and (c) not display a price for Biotics products that is below the MSRP as required by the Biotics Minimum Advertised Prices Policy (“MAP Policy”), furnished to Reseller and posted on Biotics website, to which Reseller hereby agrees. However, at the point of purchase by an Eligible Patient/Client, e.g., when the Eligible Patient/Client selects a Biotics Product to purchase from Reseller on-line and clicks a box indicating readiness to purchase and request for display of purchase price in a shopping cart on a website, Reseller may at that point only display the sale price. Unless the on-line purchaser is an Eligible Patient/Client, which is Reseller’s duty to confirm and document before selling, Reseller may not sell Biotics products to such purchaser. Reseller shall not directly or indirectly advertise Biotics Products on the Internet other than on Reseller’s own password-protected website (passwords cannot be auto-generated), so that Reseller shall not offer Biotics Products on Amazon or any other Internet reseller, nor shall Reseller use banner or pop-up advertisements on any website other than Reseller’s own website, or sponsored searches (e.g. Google AdWords, Yahoo Search Marketing, Bing Search Marketing, Amazon, Walmart, eBay). Reseller’s website is disclosed in Para. 10 herein, and if Reseller shall use or have any other website, Reseller must give written notice to Biotics thereof prior to advertising any Biotics Products thereon.
6. Biotics Trademarks, Copyrights, and Patents. Biotics owns trademarks, copyrights, and patents in and related to Biotics products, labeling and packaging. Reseller is granted a revocable license only to use the trademarks and copyrights to sell Biotics products pursuant to the terms hereof. Reseller shall not assign to anyone any such license or permit anyone else to sell Biotics products, and any attempted assignment or grant of permission by Reseller is null and void. Any misuse of Biotics trademarks, copyrights, and/or patents is a breach of this Agreement and may also be infringement in violation of federal and state intellectual property laws.
7. Reseller’s Compliance. Biotics and its Distributor, if any, will monitor Reseller’s compliance with this Agreement. Biotics expects Reseller to comply fully with this Agreement and cooperate with Biotics and its Distributor in its implementation and compliance. Reseller shall not make any false or misleading representations regarding the Biotics Products, nor any representations or warranties regarding the Biotics Products that are not expressly stated in the Biotics’ labeled literature furnished to Reseller. On Biotics’ request, Reseller shall furnish written certification of compliance with the Agreement, of Reseller’s qualification as an Authorized Reseller under Para. 1, that sales of Biotics products are to Eligible Patients/Clients only for whom Reseller maintains at least the customer files described in Para. 2. Such cooperation includes providing information or documentation requested by Biotics or Distributor related to the Agreement. Reseller shall promptly inform Biotics in writing (a) if it ceases to qualify as an Authorized Reseller based on change of business, loss of professional license, or otherwise; (b) if Reseller has sold Biotics products to a customer that is not an Eligible Patient/Client; (c) if Reseller opens a new website with the details thereof; and/or (d) if Reseller knows of any complaint or adverse claim about any Biotics Products.
8. Biotics’ and Distributor’s Post-Termination Rights. FOR ANY VIOLATION OF THIS AGREEMENT BY RESELLER, BIOTICS AND DISTRIBUTOR EACH RESERVE THE RIGHT TO TERMINATE, WITH IMMEDIATE EFFECT ON WRITTEN NOTICE, THE RESELLER’S RIGHT TO PURCHASE BIOTICS PRODUCTS FOR RESALE AND RESELLER’S RIGHT TO SELL REMAINING BIOTICS PRODUCTS. Biotics and Distributor have the right to inspect Reseller’s Biotics inventory upon termination. In the event of Reseller termination, Biotics has a right of first refusal to repurchase all or part of Biotics products in the custody, control, or possession of Reseller at the Reseller’s price paid for the Biotics products less a 50% reclamation fee, exclusive of delivery, insurance, handling, and taxes paid; if Biotics declines to exercise its right to repurchase all or part of Reseller’s Biotics products within 30 days of termination, Distributor shall have the right in its sole discretion to repurchase all or part of the Reseller’s Biotics products on the same terms as Biotics, by giving notice within 45 days of Reseller’s termination.
9. Amendments. Biotics may issue amendments of this Agreement from time to time. Failure of Reseller to agree to the terms of such amendments shall entitle Biotics and/or Distributor promptly to terminate the Reseller’s right to purchase further Biotics products for resale.
10. Notices. All notices related to this Agreement shall be in writing, and shall be sent by certified mail return receipt, fax, courier, or email, addressed as follows, and shall be deemed received on the earlier of (a) three days after transmittal, or (b) date of actual receipt:
Reseller shall keep Biotics and Distributor advised of any change in the Reseller’s name, ownership, status of individual’s professional license, address, telephone, fax number, email address, and website, by giving notice in the manner aforesaid.
11. GOVERNING LAW; DISPUTES. THIS AGREEMENT SHALL BE GOVERNED BY TEXAS LAW, EXCLUDING ITS CONFLICTS OF LAW RULES. ALL DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING THE VALIDITY OF THIS AGREEMENT, SHALL BE SUBMITTED EXCLUSIVELY TO FINAL, BINDING ARBITRATION IN HOUSTON, TEXAS BEFORE AN ARBITRATOR WHO IS APPOINTED BY AND WHO SHALL CONDUCT THE ARBITRATION PURSUANT TO THE COMMERCIAL RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). The Arbitrator shall render a reasoned written Award and shall award reasonable attorneys’ fees and costs (including all AAA and Arbitrator fees and costs) to the prevailing party. Reseller may not submit a dispute on behalf of or as part of a class of claimants and shall submit a claim only on behalf of itself. Nonetheless, Biotics and/or Distributor shall be entitled to injunctive relief in aid of arbitration, and/or equitable relief independently of an arbitration, in the state or federal courts of Ft. Bend County, Texas, including an injunction against Reseller (including temporary restraining order, preliminary and permanent injunction) or decree of specific performance by Reseller, to enforce Reseller’s compliance with this Agreement. The state and federal courts of Ft. Bend County, Texas shall be the exclusive jurisdiction and venue for all judicial proceedings arising from or related to this Agreement, to which jurisdiction (subject matter and personal) and venue Biotics, Reseller and Distributor irrevocably consent, waiving all defenses and objections thereto.
12. Term. This Agreement does not set a term for Reseller’s authorization to purchase Biotics products for resale to Eligible Patients/Clients. Accordingly, this Agreement is terminable at the will of any Party upon written notice, without cause, provided that no termination shall release or discharge Reseller from liability for payment for Biotics products purchased and shipped prior to termination, or from liability for damages caused by Reseller’s breach of this Agreement or other legal violations by Reseller.
13. Remedies for Reseller’s Breach; Indemnification. In addition to all legal and equitable remedies available to Biotics and/or Distributor, including but not limited to all rights and remedies under applicable State and Federal law, which are cumulative, and the right of Biotics and/or Distributor to recover its reasonable attorneys’ fees and costs, Biotics and/or Distributor shall have the following remedies for Reseller’s breach of this Agreement:
(a) Injunction. Reseller acknowledges that breach of the obligations of this Agreement other than the obligation to pay for Biotics Products purchased threatens immediate, irreparable harm to Biotics’ reputation and goodwill, and that Biotics has no adequate remedy at law to redress such harm. Biotics and/or Distributor is entitled to a temporary restraining order, temporary and permanent injunction, specific performance, and other equitable relief to prevent or enjoin a breach or threatened breach of this Agreement without bond, and as to a temporary restraining order without prior notice.
(b) Liquidated Damages. Reseller acknowledges that breach of the obligations of this Agreement other than the obligation to pay for Biotics Products purchased will cause Biotics monetary damages that are difficult or impossible to quantify with specificity. Reseller agrees to pay Biotics as a reasonable estimate of actual monetary damages from such breach(es) liquidated damages in an amount equal to $250.00 for each separate breach for each day that any breach continues. For example, if Reseller breaches this Agreement by selling to one customer who is not an Eligible Customer 3 different Biotics Products for 10 days, liquidated damages shall be $7,500; and if Reseller offers to sell 50 Biotics Products on amazon.com for a period of 30 days, the liquidated damages shall be at minimum $375,000. The parties agree that the liquidated damages provided herein is not a penalty but is a reasonable estimate of damages that are difficult or impossible to ascertain in view of the damages anticipated by Reseller’s breach(es). Liquidated damages shall be Biotics exclusive monetary remedy for Reseller’s breach(es) of Paragraph 2, 3, 4 or 5 herein, provided that Biotics shall also be entitled to recover its reasonable attorneys’ fees and costs incurred in enforcing its rights hereunder, as well as all equitable relief to which it may be entitled and to terminate Reseller as an Authorized Reseller. For breach of any other provisions of this Agreement or any statutory or common law rights and obligations, Reseller shall not be limited to the damages formula herein, but shall be liable for all damages of Biotics.
(c) Indemnification. Reseller shall indemnify, defend, and hold harmless Biotics, Distributor and each of their respective directors, officers, employees, independent contractors, sales representatives, agents and insurers from and against any and all claims, losses, damages, whether for personal injury, property damage or otherwise, and all expenses incurred in connection therewith (including but not limited to attorneys’ fees and costs) and liabilities of any kind, whether in contract, tort, strict liability, or otherwise, and whether arising by contract, statute or common law, brought by or resulting from claims of third parties which are based on or arise out of (i) any alleged act or omission by Reseller or its directors, officers, managers, owners, employees, agents, contractors, and/or subcontractors, or (ii) any violation of applicable law by Reseller or its directors, officers, managers, owners, employees, agents, contractors, and/or subcontractors.
(d) Termination. Pursuant to Para. 8, Biotics and/or Distributor shall be entitled to terminate Reseller as an Authorized Reseller for any Reseller breach, in addition to other remedies.
14. Reseller’s Remedies for Biotics’ or Distributor’s Breach. Biotics and/or Distributor’s sole duty to Reseller is to supply conforming Biotics products pursuant to purchase orders which have been accepted by them. Reseller’s sole and exclusive remedy for any breach by Biotics and/or Distributor shall be, in the sole discretion of Biotics and/or Distributor, replacement of nonconforming Biotics products or refund of the purchase price paid for such Biotics products. In no event shall Biotics or Distributor be liable to Reseller for consequential damages (including but not limited to lost profits), fines and penalties, incidental damages, or indirect damages.
15. Parties’ Relationship. The relationship of Biotics and Reseller, and of Distributor and Reseller, is that of seller and purchaser of goods who are independent contractors, and not of agency, partnership, joint venture, employment, franchisor-franchisee, or any fiduciary relationship. No party hereto has any right or authority to assume or create any obligation on behalf of or in the name of another party hereto or to bind the other party to any obligation with any third party.
(a) Entire Agreement; Controlling Agreement. This is the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous oral and written agreements and understandings related to the subject matter hereof. In event of any conflict between this Agreement and Reseller’s agreement with Distributor, this Agreement controls.
(b) Waiver. The failure of Biotics at any time to require performance by Reseller of any provision herein or to enforce any rights or remedies herein shall not operate as a waiver of the right of Biotics to insist on strict performance of the same or other provisions or to enforce any rights or remedies hereunder.
(c) Severability. If any provision of this Agreement is held invalid or enforceable, it shall be deemed severed herefrom, and the remaining terms hereof shall be given full force and effect.
(d) Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. Each signatory represents and warrants his/her authority to bind the party for whom signing and further represents that he/she has read and understood the Agreement, has had the opportunity to consult with an attorney before signing and has done so or chosen not to do so, and that he/she has entered this Agreement voluntarily and knowingly. Electronic signatures are as valid as original signatures for all purposes under this Agreement. Delivery by fax or by e-mail of a signed copy of the Agreement shall be as effective as a signed original.
17. Effective Date. This Agreement is effective as of the date signed by the last party to sign, which is (“Effective Date”).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of the Effective Date.