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Bariatric Advantage Online™ Webpage– Agreement with Professional and License
THIS BARIATRIC ADVANTAGE ONLINE™ WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE (this “Agreement”) is effective as of the date of online acceptance by Professional (the “Effective Date”) by and between Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage”), and Professional (“Professional”).
RECITALS
A.Bariatric Advantage is a life sciences company that manufactures nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Bariatric Advantage’s own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).
B. Bariatric Advantage has developed software (the “Software”) for the operation of its website by which webpages are identified to individual healthcare professionalsin order to support the sale of Bariatric Advantage productsto such professionals’ clients.
C. Professional is interested in establishing a webpage on Bariatric Advantage’s website (the “Webpage”), through which Professional’s clients (“Clients”)will purchase Bariatric Advantage’s products.
D. Bariatric Advantage acknowledges that Professional’s name and logo are a valuable asset unique to Professional and that these assets have substantial value in the marketplace;Bariatric Advantage desires to use Professional’s name and logo on the Webpage, and Professional is willing to grant Bariatric Advantage the right to use Professional’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS.The terms set forth below shall be defined as follows:
1.1. “Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential” or which would be expected to be confidential by its nature, in the case of Bariatric Advantage, including, without limitation,all confidential or non-public intellectual property (including any computer code), Content (as described below), other content, documentation, business data, marketing plans or other similar information.In particular, “Confidential Information” of Bariatric Advantage includes the source code of the Software.
1.2. “Software” shall mean all software and any software tools, both in object code and source code form, now or hereafter owned or developed byBariatric Advantage and all software Bariatric Advantage licenses from a third party or otherwise has a right to use, for establishing and maintaining the Webpage.
1.3. “Webpage” shall mean the page established using Professional’s name and logo, on Bariatric Advantage’s own website, using the Software, and maintained and supported on the Bariatric Advantage server.
2. PURPOSE; LICENSE; CONTENT; SERVER; DEVELOPMENT SERVICES.
2.1. Purpose.The purpose of the Webpage shall include, without limitation, the dissemination of information, the display of Bariatric Advantage products for order and purchase, the presentation of advertising, and other purposes.
2.2. License.Professional hereby grants to Bariatric Advantage a non-exclusive, non-assignable license to use Professional’s name and logo for all uses necessary or appropriate to the operation of the Webpage, in accordance with the terms and conditions of this Agreement.
2.3. Content of the Webpage. The Webpage will be based upon Bariatric Advantage content.The Webpage will use the Software to implement product purchasing, data collection, and information tracking.
2.4. Server for the Webpage.The Software and the Webpage will reside upon a server provided by Bariatric Advantage.
2.5. Development Services.Bariatric Advantage will provide design, programming, development and other services relating to the Webpage.
3. WEBPAGE SUPPORT SERVICES.
Bariatric Advantage shall provide the following ongoing Webpage support to Professional.
3.1. Establishment of Webpage on Bariatric Advantage Server. Bariatric Advantage will establish the Webpage as part of Bariatric Advantage’s own website, which is on a server provided by Bariatric Advantage and under Bariatric Advantage’s control, support, and maintenance.
3.2. Content.Professional shall not supplement, modify or alter any content on the Webpage, except using functionality provided by Bariatric Advantage for the Webpage, unless any such change has been consented to in writing by Bariatric Advantage (email to be sufficient).Bariatric Advantage will provide password protected access for Professional.
3.3. Backup.Bariatric Advantage shall maintain a complete and current copy of Bariatric Advantage’s website on a separate server.In the event that service is interrupted to Bariatric Advantage’s website, the separate server will be activated using commercially reasonable means so that public access to the Webpage may continue uninterrupted or as close as possible under the circumstances.
3.4. Privacy; Data Ownership and License.Professional acknowledges and agrees that, as between the parties, all data (including data that may or may not be considered “personal information”, “personal data”, or other similar term as defined by appliable privacy, cybersecurity, or data protection law) related to Client browsing, purchasing, and other activity on the Webpage (hereinafter, “Client Website Activity”) is owned by Bariatric Advantage, is subject to Bariatric Advantage’s privacy policy, and is Bariatric AdvantageConfidential Information. For the term of this Agreement, Bariatric Advantage hereby grants Professional a limited, non-transferrable, right and license to use portions of Client Website Activity related to Client purchase transactions on theWebpage (hereinafter, “Client Transaction Activity”). Bariatric Advantage will use commercially reasonable efforts to provide Professional access to Client Transaction Activity twenty-four (24) hours per day, seven (7) days per week, and Bariatric Advantage will provide Professional with passcodes and technical assistance as may be necessary for permitting such access. If and to the extent that Professional is a Covered Entity (as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, “HIPAA”), the parties agree to the attached Business Associate Agreement (the “BAA”) set forth in Exhibit A for the Client Transaction Activity and other services set forth in the BAA (solely to the extent such data constitute Protected Health Information under HIPAA) and any other processing of ePHI (as defined by HIPAA) as separately agreed to between the parties.The parties agree that, to the extent Professional is a Covered Entity and Bariatric Advantage receives or creates Protected Health Information(as defined by HIPAA) as part of the services under this Agreement, such Protected Health Information shall be owned by Professional notwithstanding anything to the contrary in this Agreement.
4. INVENTORY SERVICES.
4.1. Shopping Cart Features.Bariatric Advantage will use its online shopping cart application which will be customized for the Webpage to manage the shopping experience of visitors to the Webpage.
4.2. Product Selection for the Webpage.Professional is responsible for determining applicable nutritional protocols, for selecting the productsto make available on the Webpage, and for instructing Professional’s Clientson specific products to support the needs of suchClients. Bariatric Advantage maintains an on-line catalog of products from which Professional may select.
4.3. Ordering from the Webpage.Completed orders will be communicated from the Webpage directly to Bariatric Advantage’s distribution center. Products will be shipped from the distribution center to the Client using shipping documents and shipping labels that include Bariatric Advantage’s return address.
4.4. Inventory Levels.Throughout the Term of this Agreement, Bariatric Advantage shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Bariatric Advantage distribution center to meet Clients’ demand for the products listed on the Webpage.Bariatric Advantage will establish inventory levels to reflect the actual sales performance of each product SKU.
4.5.1. Shipping charges (from the Bariatric Advantage distribution center) will be paid by the Client.Bariatric Advantage will determine and charge the appropriate shipping/handling charge per outgoing order.
4.5.2. Bariatric Advantage will be responsible for undeliverable or damaged shipments from Bariatric Advantage to Clients, and Bariatric Advantage will handle such damaged shipments according to its then-current policy regarding such shipments.
4.5.3. Bariatric Advantage will specify the satisfaction guarantee policy to which products will be subject.
4.5.4. Bariatric Advantage will be responsible for product recalls.
4.6. Product Pricing.Bariatric Advantage will recommend a suggested retail price (SRP) for each product SKU offered on the Webpage.
5. PRICING; REPORTING; PAYMENT; CREDIT AND COLLECTIONS.
Soley if and to the extent that Professional is the re-seller of Bariatric Advantage products through Professional’s Webpage, this Section 5 shall apply. For the avoidance of doubt, if Professional simply recommends Bariatric Advantage products which Professional’s Clients then purchase directly from Bariatric Advantage, this Section 5 does not apply to Professional.
5.1. Products. The price from Bariatric Advantage to Professional for products purchased by Clients from the Webpage shall be Bariatric Advantage’s then-current professionals’ price for such products.
5.2. Reporting. Professional will have access to sales reports.Within twenty (20) calendar days after the close of each calendar quarter, Bariatric Advantage will provide Professional with an accounting of sales made from the Webpage.
5.3. Payment. Upon Bariatric Advantage’s request, Professional will open Professional’s own individual account with a payment processing service of Bariatric Advantage’s choice (the “Processing Service”, e.g., CyberSource, Adyen, PayQuicker, WePay, or Bariatric Advantage itself). Clients will purchase products through the Webpage using the Processing Service. Clients will make payments for products by an approved method of payment, which shall include providing the Client’s credit card information to the Processing Service. The Processing Service shall deduct any applicable transaction fees and, on behalf of Professional, the Processing Service shall facilitate (i) Professional’s cost of goods sold (“Professional’s COGS”)for the products purchased by Clients through the Webpagebeing retained by Bariatric Advantag eand (ii) the difference between the Client’s purchase price (less any applicable transaction fees) and Professional’s COGS being remitted to Professional.
5.3.1. Bank fees, credit card transaction fees, and Processing Service transaction fees, if applicable, are included in the price paid by the Client.
5.4. Credit and Collections. Professional shall be responsible for credits and collections relating to products purchased through Professional’sProcessing Service account.
5.5 Sales Taxes.In all jurisdictions that permit or require a marketplace facilitator, marketplace provider, or other similar person to collect and remit sales, use, transaction privilege, gross receipts, excise or similar transaction taxes (collectively, “Sales Taxes”), Bariatric Advantage will collect and remit Sales Taxes to the appropriate taxing authority.Professional agrees to provide Bariatric Advantage with all information or documentation to support such treatment, including its Sales Tax registration numbers.
In all other jurisdictions or where Bariatric Advantage is not acting as a marketplace facilitator or other similar person, Professional shall be responsible to collect and remit Sales Taxes to the appropriate taxing authority. In such non-marketplace facilitator jurisdictions or where Bariatric Advantage is not acting as a marketplace facilitator or other similar person,Professional agrees that Professional will indemnify Bariatric Advantage for all Sales Tax, interest, and penalties asserted or assessed against Bariatric Advantage by a taxing authority with respect to Professional’s sales, as well as for reasonable costs to defend against such assertions or assessments.
In all jurisdictions, Professional agrees that Professional will indemnify and hold harmless Bariatric Advantage from all losses related to assessments, false claims, qui tam, and class action lawsuits with respect to Professional’s sales that may arise in such jurisdictions and that relate to the correct taxability of an item or the correct tax rate
6. CLIENT SUPPORT.
6.1 Professional Responsibility. Professional shall be responsible for educating Clients regarding the benefits of particular products that may be used by the Client. Professional, to the extent applicable, will be responsible for tracking protocol compliance on the part of Clients. Professional will be responsible for obtaining all necessary rights and permissions to permit processing of personal information as contemplated under this Agreement, including by making all necessary disclosures and obtaining applicable consents or authorizations in compliance with applicable law.
6.2 Bariatric Advantage Responsibility. Bariatric Advantage shall be responsible for providing customer service for Clients ordering products from the Webpage, as said service relates to informing Clients of product specifications, shipment status, return authorizations, product promotions, and similar matters.
7. TERM AND TERMINATION.
7.1. Term. This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.
7.2. Termination for Cause. Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Professional, the breach of an applicable Bariatric Advantage policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.
7.3. Termination without Cause. Either party may terminate this Agreement, at any time, without cause, by giving at least thirty (30) days’ prior written notice to the other party.
7.4. Effect of Termination.
7.4.1 Removal of Name and logo. Upon the termination of this Agreement for any reason, Bariatric Advantage shall promptly remove Professional’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Professional’s name and logo from Bariatric Advantage’s website.
7.4.2 Termination of Licenses. Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.
7.4.3 Survival .Sections10, ,11, ,12, and 13 shall survive any termination or expiration of this Agreement.
8. BARIATRIC ADVANTAGE’S WARRANTIES.
8.1. Work Product Warranties.Bariatric Advantage represents and warrants to Professional that the Software, the Webpage, and Bariatric Advantage-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.
8.2. Support and Maintenance Warranties. Bariatric Advantage further represents and warrants to Professional that, at all times during which Bariatric Advantage provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:
8.2.1. Availability of the Webpage.The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).
8.2.2. Bandwidth of Bariatric Advantage’s Website.The Bariatric Advantage website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.The goal shall be to prevent unreasonable user delays from accessing the Webpage, subject to Internet-related delays that are not within Bariatric Advantage’s control.
8.2.3. Security of Bariatric Advantage’s Website.Bariatric Advantage shall use commercially reasonable efforts to attempt to prevent unauthorized access to the Webpage and any databases or other sensitive material generated from or used in conjunction with the Webpage, provided, however, that Professional understands and acknowledges that Bariatric Advantage shall not be held responsible for the effects of malicious hacking or other concerted criminal or illegal activities on the part of third parties in relation hereto.
9. PROFESSIONAL’S WARRANTIES.
Professional represents and warrants that Professional will not use any advertising material with respect to the products available on the Webpage that: (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.
10. OWNERSHIP.
10.1.Ownership of the Website. Professional acknowledges and agrees that Bariatric Advantage owns the Software and all of the computer code on, and relating to,Bariatric Advantage’s website.Professional shall have no rights in or to the Software, other than the rights expressly set forth in this Agreement.
10.2.Ownership of Content.All content contributed by Bariatric Advantage and, as between the parties, all ClientWebsite Activity and Client Transaction Activity, shall be owned by Bariatric Advantage.Professional acknowledges and agrees that any content used on the Webpage and all ClientWebsite Activity and Client Transaction Activityshall at all times remain the property of Bariatric Advantage (or its licensor).Professional shall have no rights in such content or such ClientWebsite Activity or such Client Transaction Activity, other than the limited right to use for the purposes expressly set forth in this Agreement or as otherwise limited by this Agreement. Notwithstanding the foregoing, the parties agree that, to the extent Professional is a Covered Entity and Bariatric Advantage receives or creates Protected Health Information (as defined by HIPAA) as part of the services under this Agreement, such Protected Health Information shall be owned by Professional.
11. INDEMNIFICATION.
11.1.Bariatric Advantage Indemnification.Bariatric Advantage shall defend and hold harmless Professional against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Bariatric Advantage (including, without limitation, any breach of its obligations under Section 8), (b) arising from the negligent acts or omissions or the willful misconduct of Bariatric Advantage or (c) alleging product liability or other Claim relating to the integrity of a Bariatric Advantage product.Bariatric Advantage shall indemnify Professional for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Professional in defending against any such Claim.
11.2.Professional Indemnification. Professional shall defend and hold harmless Bariatric Advantage against any Claim (a) arising from any breach of this Agreement by Professional(including, without limitation, any breach of its obligations under Section 9) or (b) arising from the negligent acts or omissions or the willful misconduct of Professional.Professional shall indemnify Bariatric Advantage for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Bariatric Advantage in defending against any such Claim.
11.3.Mechanics of Indemnification.The indemnified party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
12. CONFIDENTIAL INFORMATION.
Each party shall hold the Confidential Information of the other party in confidence and shall maintain the confidentiality of the other party’s Confidential Information with the same degree of care such party uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. Neither party shall (i) disclose the other party’s Confidential Information to third parties, at any time, without the prior written consent of the other party, or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.Such restrictions shall not apply to information that (a) is already known by the recipient prior to the other party’s disclosure of such information hereunder, as established by documentary evidence; (b) becomes, through no breach of this Agreement by the recipient, publicly known; (c) is received by the recipient from a third party that was not subject to any legal or contractual restriction on disclosure of such information or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.
13. LIMITATION ON LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS OR BUSINESS OPPORTUNITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. EXCLUSIVITY; NON-COMPETITION.
Professional acknowledges that Bariatric Advantage is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Bariatric Advantage has developed, and will continue to develop, webpages for other parties whom Professional may consider competitive to Professional’s business.Professional agrees that Bariatric Advantage shall continue to be free to develop webpages for other clients. Bariatric Advantage shall not share with its other clients any identifiable data pertaining to Professional’s use of the Webpage.
15. COMPLIANCE WITH LAWS.
Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.
16. GENERAL PROVISIONS.
16.1.Governing Law; Venue.This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles.In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in the County of Orange, State of California.
16.2.Severability; No Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
16.3.Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.Personnel supplied by Bariatric Advantage shall work exclusively for Bariatric Advantage and shall not, for any purpose, be considered employees or agents of Professional.
16.4.Entire Agreement; Amendment. This Agreement, including any exhibits attached hereto and the provisions referenced in such Exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.Bariatric Advantage may propose to amend this Agreement by communicating a proposed amendment to Professional via email. Upon receipt of such an email, Professional shall have thirty (30) days within which to accept or decline the proposed amendment. If Professional does not object to the amendment within the thirty-day period following receipt of Bariatric Advantage’s email, Professional shall be deemed to have accepted the amendment.
IN WITNESS WHEREOF, the parties hereto have duly agreed to this BARIATRIC ADVANTAGE ONLINE™ WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE, effective as of the Effective Date.
By clicking “Accept”, I acknowledge that I agree to these Terms and Conditions.
If Professional is the re-seller of Bariatric Advantage products through Professional’s Webpage, Professional also acknowledge that Professional has received the Bariatric Advantage Authorized Reseller Policy, attached hereto as EXHIBIT B and available at https://www.bariatricadvantage.com/privacy-policy#authorized_reseller_policy.
EXHIBIT A
Business Associate Agreement
THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”) betweenProfessional(“Professional” or “Covered Entity”) andBariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage” or “Business Associate”) is effective as of the same date as the effective date of that certain BARIATRIC ADVANTAGE ONLINE™WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE (the “Related Agreement”) between Professional and Bariatric Advantage (the “Effective Date”).
WHEREAS, in the course of fulfilling its services under the Related Agreement, Bariatric Advantage may receive, obtain, or create PHI(as defined by HIPAA) from or on behalf of Covered Entity;
WHEREAS, both Covered Entity and Bariatric Advantage desire to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 as amended by the American Recovery and Investment Act of 2009 (as so amended, “HIPAA”), and implementing regulations which are codified at 45 C.F.R. Part 160, 162 and 164, as such regulations may be amended from time to time and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 and implementing regulations and guidance issued by the Secretary, all as may be amended from time to time (as so amended, “HITECH”) (HIPAA and HITECH, collectively, the “HIPAA Rules”); and
WHEREAS, both Covered Entity and Bariatric Advantage agree that this BAA shall apply to PHI only to the extent that Professional is a Covered Entity and that Bariatric Advantage, in relation to the services offered under the Related Agreement, constitutes a Business Associate under the HIPAA Rules;
NOW, THEREFORE, in consideration of the promises set forth herein and in the Related Agreement, the delivery and sufficiency of which are acknowledged, the parties agree as follows:
I.Definitions.
Catch-all definitions. The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Business Associate, Covered Entity, Data Aggregation, De-Identify, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
II.Eligible Services.
A.The parties agree and acknowledge that not all services offered by Bariatric Advantage are HIPAAcompliant. For the sake of clarity, this BAA does not apply to Client Website Activity or other information collected via the Webpage by Bariatric Advantage acting in its independent capacity.
B.This BAA applies only to the following services, or as otherwise agreed in writing by the parties:
1.Covered Entity’s provision ofIndividuals’ names, email addresses, physical addresses, other contact information, and Covered Entity’s product recommendations to Bariatric Advantage for processing;
2.Bariatric Advantage’s provision of Client Transaction Activity as defined in the Related Agreement to Covered Entity; and
III.Obligations and Activities of Business Associate. Business Associate agrees to:
Not use or disclose PHI other than as permitted or required by this BAA or as Required By Law;
Use appropriate safeguards, and comply with the HIPAA Rules with respect to electronic PHI, designed to prevent use or disclosure of PHI other than as provided for by this BAA;
Report to Covered Entity any use or disclosure of PHI not provided for by this BAA of which it becomes aware, including Breaches of Unsecured Protected Health Information as required by the HIPAA Rules, and any successful Security Incident of which it becomes aware. The parties agree that this constitutes ongoing notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI;
In accordance with the HIPAA Rules, including 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to substantially the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;
Make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations;
Make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by Covered Entity pursuant to the HIPAA Rules, or take other measures as necessary to satisfy Covered Entity’s obligations;
Maintain and make available the information required to provide an accounting of disclosures to Covered Entity as requested by Covered Entity in order to satisfy Covered Entity’s obligations;
To the extent the parties agree that Business Associate is to carry out one or more of Covered Entity’s obligations, comply with the HIPAA Rules that apply to Covered Entity in the performance of such obligations; and
Make its internal practices, books, and records available to the Secretary, upon the Secretary’s request, for purposes of determining compliance with the HIPAA Rules.
IV.Permitted Uses and Disclosures by Business Associate.
Business Associate may only use or disclose PHI as required to satisfy its obligations to perform the Activities or as otherwise permitted herein or in the Related Agreement, provided that such use or disclosure would not violate the HIPAA Rules, if done by a Covered Entity.
Business Associate is authorized to use PHI to De-Identify PHIsuch that de-identified information is no longer PHI and not subject to the restrictions herein.
Business Associate may use or disclose PHI as Required By Law (as that term is defined in the HIPAA Rules).
Business Associate agrees to make uses and disclosures of PHI consistent with the Minimum Necessary requirement.
Business Associate may not use or disclose PHI in a manner that would violate the HIPAA Rules.
Business Associate may use PHI to contact Individuals directly for purposes of seeking individual authorizations in compliance with the HIPAA Rules for the use and disclosure of PHI for any purposes not otherwise permitted by HIPAA or this BAA. If an Individual chooses to sign such an authorization, Business Associate may use and disclose PHI to the extent permitted by the authorization, including to market Business Associate’s products.
Business Associate may use PHI to send refill reminders or other treatment-related communications on behalf of, and at the direction of, Professional.
Business Associate may use PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been Breached.
Business Associate may perform Data Aggregation activities relating to the Health Care Operations of Covered Entity.
Business Associate may use Covered Entity PHI to report violations of law to appropriate authorities, consistent with 45 CFR §164.502(j)(1).
V.Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions.
Covered Entity shall promptly notify Business Associate in writing of any limitation(s) in the Notice of Privacy Practices of Covered Entity under the HIPAA Rules, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall promptly notify Business Associate in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall promptly notify Business Associate in writing of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under the HIPAA Rules, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
VI.Permissible Requests by Covered Entity.
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.
VII.Term and Termination.
Term.The Term of this BAA shall be effective as of the Effective Date, and shall terminate (a) when all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, (b) if it is not feasible to return or destroy such Covered Entity PHI, protections are extended to such information, in accordance with the termination provisions inSection C(3), below.
Termination for Cause. Business Associate authorizes termination of this BAA by Covered Entity, if Covered Entity determines Business Associate has violated a material term of this BAA and Business Associate has not cured the violation or ended the violation within thirty (30) days after Covered Entity notifies Business Associate of the material violation. Covered Entity likewise authorizes termination of this BAA by Business Associate, if Business Associate determines Covered Entity has violated a material term of this BAA and Covered Entity has not cured the violation or ended the violation within thirty (30) days after Business Associate notifies Covered Entity of the material violation.
Obligations of Business Associate upon Termination. Upon termination of this BAA for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
1.Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
2.Return to Covered Entity or,if agreed to by Covered Entity, destroy the remaining PHI that Business Associate still maintains in any form;
3.If return or destruction of the Covered Entity PHI is not feasible, as determined by Covered Entity, Business Associate shall extend the protections of this Agreement for as long as necessary to protect such PHI and to limit any further use or disclosure. Business Associate shall only use or disclose such PHI for those purposes that make return or destruction infeasible;
4.Continue to use appropriate safeguards and comply with the HIPAA Rules with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
5.Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at paragraphs F, G, H, I, J, and K of Section IV(Permitted Uses and Disclosures), which applied prior to termination; and
6.Return to Covered Entity or, if agreed to by Covered Entity, destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
Survival. The obligations of Business Associate under this Section shall survive the termination of this BAA.
VIII.Miscellaneous.
Applicability. This BAA shall be applicable only to PHI received by Business Associate from Covered Entity or created or received by Business Associate on behalf of Covered Entity.
Amendment. The parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
Notices. All notices required or permitted by this BAA shall be in writing and shall be directed to the appropriate party at its address set forth above or such other address as a party may, from time to time, designate by written notice to the other party.
EXHIBIT B
BARIATRIC ADVANTAGE
AUTHORIZED RESELLER POLICY FOR THE UNITED STATES
Effective Date: March 1, 2023
Revised: January 22, 2024
This Bariatric Advantage Authorized Reseller Policy for the United States (this “Reseller Policy”) is issued by Bariatric Advantage (“Bariatric Advantage”) and applies to Authorized Resellers (“Reseller” or “you”) of Bariatric Advantage products (each, a “Product” and, collectively, the “Products”) in the United States of America. By purchasing products for retail sale from Bariatric Advantage, or from an Authorized Distributor appointed by Bariatric Advantage, you agree to adhere to the terms of this Reseller Policy. Until your status as an Authorized Reseller is otherwise revoked by Bariatric Advantage, in Bariatric Advantage’s sole and absolute discretion, you shall be considered an “Authorized Reseller”.Bariatric Advantage may review your activities for compliance with this Reseller Policy, and you agree to cooperate with any such investigation, including, but not limited to, permitting inspection of your facilities and records related to the sale of the Products.
1.Authorized Customers. Reseller is authorized to sell the Products only to End Users.An “End User” is a purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to any third party. Reseller shall not sell or transfer Products to any person or entity Reseller knows, or has reason to know, intends to resell the Products. Reseller shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use. Reseller shall not sell, ship, or promote the Products outside the United States of America without Bariatric Advantage’s prior written consent in each instance.
2.Online Sales.
(a)Reseller shall not offer for sale, or sell, the Products on or through any website, online marketplace (including, but not limited to, Amazon, eBay, Walmart Marketplace), mobile application, or other online forum without the prior written consent of Bariatric Advantage, to be granted by Bariatric Advantage only through execution by both parties of a Bariatric Advantage Authorized Online Seller Agreement.The terms of this Reseller Policy supersede any prior agreement between Bariatric Advantage and Reseller regarding the sale of the Products on or through websites, online marketplaces, mobile applications, and other online forums. Any authorization previously granted to Reseller by Bariatric Advantage to sell the Products on or through a website, online marketplace, mobile application, or other online forum is revoked.
(b)A Reseller (i) who is a healthcare professional with a license/certification (if required by law) or (ii) that is a business entity that has a healthcare professional as an owner, member, operator, manager, director, or other similar authority involved in the sales of the Products, is authorized to sell the Products on an eCommerce Store that is operated on behalf of such Reseller by an Authorized Distributor appointed by Bariatric Advantage. An “eCommerce Store” is a website, micro-site, or mobile application that (x) is operated by such Authorized Distributor in its legal name or registered fictitious name, (y) is primarily used to facilitate orders of the Products from End Users on behalf of healthcare professional resellers, and (z) requires the prospective End User to create an account and log-in to purchase the Products.
(c)A Reseller who purchases directly from Bariatric Advantage and who has agreed to adhere to a Bariatric Advantage Online™ Webpage – Agreement with Professional and License(the “Webpage Agreement”) is permitted to sell the Products through a webpage that is hosted by Bariatric Advantage, subject to the terms of the Webpage Agreement.
3.Sales Practices. Reseller shall conduct Reseller’s business in a reasonable and ethical manner at all times and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time. Reseller shall not make any warranties or representations concerning the Products except as expressly authorized by Bariatric Advantage. Reseller shall comply with all applicable laws, rules, regulations, and policies (a) applicable to Reseller’s business and/or (b) related to the marketing and sale of the Products. Reseller shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the Products or the reputation of Bariatric Advantage. Reseller shall not advertise Products not carried in inventory.
4.Product Care, Customer Service, and Other Quality Controls.. Reseller shall comply with the Bariatric Advantage Product Care, Customer Service, and Other Quality Controls, attached hereto as Addendum 1, and as may be amended by Bariatric Advantage from time to time.
5.Intellectual Property.
(a)Reseller acknowledges and agrees that Bariatric Advantage owns all proprietary rights in and to the Bariatric Advantage brand, name, logo, trademarks, service marks, trade dress, copyrights, software, and other intellectual property related to the Products (collectively, the “Bariatric Advantage IP”). Bariatric Advantage grants Reseller a limited, non-exclusive, non-transferable, revocable license to use the Bariatric Advantage IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease immediately upon termination of Reseller’s status as an Authorized Reseller. All goodwill arising from Reseller’s use of the Bariatric Advantage IP shall insure solely to the benefit of Bariatric Advantage.
(b)Reseller’s use of the Bariatric Advantage IP shall be in accordance with any guidelines that may be provided by Bariatric Advantage from time to time and shall be commercially reasonable as to the size, placement, and other manner of use. Bariatric Advantage reserves the right to review and approve, in its sole and absolute discretion, Reseller’s use or intended use of the Bariatric Advantage IP at any time, without limitation. In marketing the Products, Reseller shall use only images of the Products supplied by Bariatric Advantage without modification, and Reseller shall ensure that all Product images and descriptions are accurate and up to date. All content included on Bariatric Advantage’s websites, including text, graphics, images, video clips, and audio clips, is the property of, or is licensed to, Bariatric Advantage and is protected by United States copyright law. Reseller shall not use, copy, reproduce, distribute, publish, display, modify, create derivative works from, transmit, or in any other way exploit, any part of copyrighted material without obtaining the prior written consent of Bariatric Advantage in each instance, which may be withheld in Bariatric Advantage’s sole and absolute discretion.
(c)Reseller shall not create, register, or use any domain name, social media screen name, or mobile application name that contains the name of Bariatric Advantage, any Bariatric Advantage product name, any Bariatric Advantage trademark, or any misspelling or confusingly similar variation of any Bariatric Advantage product name or trademark.
(d)Reseller shall not use the Bariatric Advantage IP to purchase online advertising or as key-words for paid advertising purposes.
6.Termination.Bariatric Advantage reserves the right to terminate Reseller’s status as an Authorized Reseller with written or electronic notice. Upon termination of Reseller’s status as an Authorized Reseller, Reseller shall immediately cease (i) selling the Products, (ii) acting in any manner that may reasonably give the impression that Reseller is an Authorized Reseller of Bariatric Advantage Products or has any affiliation whatsoever with Bariatric Advantage, and (iii) using any Bariatric Advantage IP.
7.Modification..Bariatric Advantage reserves the right to update, amend, or modify this Reseller Policy at any time. Unless otherwise specified, such amendments will take effect immediately, and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the Bariatric Advantage IP, or use of any other information or materials provided by Bariatric Advantage to Reseller will be deemed Reseller’s acceptance of the amendments.
8.Confidentiality.. This Reseller Policy, including its attached Addendum 1, constitutes confidential, proprietary information of Bariatric Advantage and shall not be used for any purpose other than the authorized advertising and sale of the Products nor be disclosed to any third party without the prior written consent of Bariatric Advantage.
ADDENDUM 1to AUTHORIZED RESELLER POLICY
BARIATRIC ADVANTAGE
PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS
Authorized Reseller shall:
1. Comply with all instructions provided by Bariatric Advantage regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels; store the Products in a sanitary environment away from direct sunlight; unless otherwise instructed by Bariatric Advantage, store the Products at room temperature in a cool dry place and tightly capped; handle the Products in accordance with good industrial hygiene and safety practices;
2. Sell the Products in their original packaging;
3. Not relabel, repackage, or otherwise alter the Products or their packaging (including refraining from separating bundled Products and refraining from bundling separate Products);
4. Not remove, translate, or modify the contents of any label or literature on or accompanying the Products;
5. Not tamper with, deface, or otherwise alter any serial number, UPC code, batch or lot code, or other identifying information on the Products or their packaging or dilute the Products;
6. Not resell any Product that has been returned opened or repackaged;
7. Inspect the Products and their packaging, promptly upon receipt of the Products, for damage, defects, broken seals, evidence of tampering, or other nonconformance (each, a “Defect”) and, if any Defect is identified, not offer the Product for sale and promptly report the Defect to Bariatric Advantage at (800) 898-6888;
8. Manage Product inventory, in order to insure freshness, on a “first-in, first-out” manner, with older inventory being sold before newer inventory of the same Product;
9. Inspect Product inventory regularly for expired or soon-to-be expired Products, not sell any Products that are expired or within ninety (90) days of expiration, and destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Bariatric Advantage and applicable law;
10. Become familiar with the special features of the Products marketed for sale and obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable guarantee or return policy; be available to respond to customer questions and concerns both before and after sale of the Products and respond to customer inquiries promptly;
11. Cooperate with Bariatric Advantage with respect to any Product tracking systems that Bariatric Advantage may implement from time to time;
12. Cooperate with Bariatric Advantage with respect to any Product recall or other consumer safety information dissemination efforts;
13. Report to Bariatric Advantage any customer complaint or adverse claim regarding the Products and assist Bariatric Advantage in investigating and resolving any such complaint or adverse claim; and
14. Cooperate with Bariatric Advantage in the investigation and resolution of any quality or customer service issues related to the sale of the Products, including disclosing information regarding Product sources, shipment, and handling.
Terms and Conditions
Bariatric Advantage Online™ Webpage– Agreement with Professional and License
THIS BARIATRIC ADVANTAGE ONLINE™ WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE (this “Agreement”) is effective as of the date of online acceptance by Professional (the “Effective Date”) by and between Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage”), and Professional (“Professional”).
RECITALS
A.Bariatric Advantage is a life sciences company that manufactures nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Bariatric Advantage’s own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).
B. Bariatric Advantage has developed software (the “Software”) for the operation of its website by which webpages are identified to individual healthcare professionalsin order to support the sale of Bariatric Advantage productsto such professionals’ clients.
C. Professional is interested in establishing a webpage on Bariatric Advantage’s website (the “Webpage”), through which Professional’s clients (“Clients”)will purchase Bariatric Advantage’s products.
D. Bariatric Advantage acknowledges that Professional’s name and logo are a valuable asset unique to Professional and that these assets have substantial value in the marketplace;Bariatric Advantage desires to use Professional’s name and logo on the Webpage, and Professional is willing to grant Bariatric Advantage the right to use Professional’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS.The terms set forth below shall be defined as follows:
1.1. “Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential” or which would be expected to be confidential by its nature, in the case of Bariatric Advantage, including, without limitation,all confidential or non-public intellectual property (including any computer code), Content (as described below), other content, documentation, business data, marketing plans or other similar information.In particular, “Confidential Information” of Bariatric Advantage includes the source code of the Software.
1.2. “Software” shall mean all software and any software tools, both in object code and source code form, now or hereafter owned or developed byBariatric Advantage and all software Bariatric Advantage licenses from a third party or otherwise has a right to use, for establishing and maintaining the Webpage.
1.3. “Webpage” shall mean the page established using Professional’s name and logo, on Bariatric Advantage’s own website, using the Software, and maintained and supported on the Bariatric Advantage server.
2. PURPOSE; LICENSE; CONTENT; SERVER; DEVELOPMENT SERVICES.
2.1. Purpose.The purpose of the Webpage shall include, without limitation, the dissemination of information, the display of Bariatric Advantage products for order and purchase, the presentation of advertising, and other purposes.
2.2. License.Professional hereby grants to Bariatric Advantage a non-exclusive, non-assignable license to use Professional’s name and logo for all uses necessary or appropriate to the operation of the Webpage, in accordance with the terms and conditions of this Agreement.
2.3. Content of the Webpage. The Webpage will be based upon Bariatric Advantage content.The Webpage will use the Software to implement product purchasing, data collection, and information tracking.
2.4. Server for the Webpage.The Software and the Webpage will reside upon a server provided by Bariatric Advantage.
2.5. Development Services.Bariatric Advantage will provide design, programming, development and other services relating to the Webpage.
3. WEBPAGE SUPPORT SERVICES.
Bariatric Advantage shall provide the following ongoing Webpage support to Professional.
3.1. Establishment of Webpage on Bariatric Advantage Server. Bariatric Advantage will establish the Webpage as part of Bariatric Advantage’s own website, which is on a server provided by Bariatric Advantage and under Bariatric Advantage’s control, support, and maintenance.
3.2. Content.Professional shall not supplement, modify or alter any content on the Webpage, except using functionality provided by Bariatric Advantage for the Webpage, unless any such change has been consented to in writing by Bariatric Advantage (email to be sufficient).Bariatric Advantage will provide password protected access for Professional.
3.3. Backup.Bariatric Advantage shall maintain a complete and current copy of Bariatric Advantage’s website on a separate server.In the event that service is interrupted to Bariatric Advantage’s website, the separate server will be activated using commercially reasonable means so that public access to the Webpage may continue uninterrupted or as close as possible under the circumstances.
3.4. Privacy; Data Ownership and License.Professional acknowledges and agrees that, as between the parties, all data (including data that may or may not be considered “personal information”, “personal data”, or other similar term as defined by appliable privacy, cybersecurity, or data protection law) related to Client browsing, purchasing, and other activity on the Webpage (hereinafter, “Client Website Activity”) is owned by Bariatric Advantage, is subject to Bariatric Advantage’s privacy policy, and is Bariatric AdvantageConfidential Information. For the term of this Agreement, Bariatric Advantage hereby grants Professional a limited, non-transferrable, right and license to use portions of Client Website Activity related to Client purchase transactions on theWebpage (hereinafter, “Client Transaction Activity”). Bariatric Advantage will use commercially reasonable efforts to provide Professional access to Client Transaction Activity twenty-four (24) hours per day, seven (7) days per week, and Bariatric Advantage will provide Professional with passcodes and technical assistance as may be necessary for permitting such access. If and to the extent that Professional is a Covered Entity (as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, “HIPAA”), the parties agree to the attached Business Associate Agreement (the “BAA”) set forth in Exhibit A for the Client Transaction Activity and other services set forth in the BAA (solely to the extent such data constitute Protected Health Information under HIPAA) and any other processing of ePHI (as defined by HIPAA) as separately agreed to between the parties.The parties agree that, to the extent Professional is a Covered Entity and Bariatric Advantage receives or creates Protected Health Information(as defined by HIPAA) as part of the services under this Agreement, such Protected Health Information shall be owned by Professional notwithstanding anything to the contrary in this Agreement.
4. INVENTORY SERVICES.
4.1. Shopping Cart Features.Bariatric Advantage will use its online shopping cart application which will be customized for the Webpage to manage the shopping experience of visitors to the Webpage.
4.2. Product Selection for the Webpage.Professional is responsible for determining applicable nutritional protocols, for selecting the productsto make available on the Webpage, and for instructing Professional’s Clientson specific products to support the needs of suchClients. Bariatric Advantage maintains an on-line catalog of products from which Professional may select.
4.3. Ordering from the Webpage.Completed orders will be communicated from the Webpage directly to Bariatric Advantage’s distribution center. Products will be shipped from the distribution center to the Client using shipping documents and shipping labels that include Bariatric Advantage’s return address.
4.4. Inventory Levels.Throughout the Term of this Agreement, Bariatric Advantage shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Bariatric Advantage distribution center to meet Clients’ demand for the products listed on the Webpage.Bariatric Advantage will establish inventory levels to reflect the actual sales performance of each product SKU.
4.5.1. Shipping charges (from the Bariatric Advantage distribution center) will be paid by the Client.Bariatric Advantage will determine and charge the appropriate shipping/handling charge per outgoing order.
4.5.2. Bariatric Advantage will be responsible for undeliverable or damaged shipments from Bariatric Advantage to Clients, and Bariatric Advantage will handle such damaged shipments according to its then-current policy regarding such shipments.
4.5.3. Bariatric Advantage will specify the satisfaction guarantee policy to which products will be subject.
4.5.4. Bariatric Advantage will be responsible for product recalls.
4.6. Product Pricing.Bariatric Advantage will recommend a suggested retail price (SRP) for each product SKU offered on the Webpage.
5. PRICING; REPORTING; PAYMENT; CREDIT AND COLLECTIONS.
Soley if and to the extent that Professional is the re-seller of Bariatric Advantage products through Professional’s Webpage, this Section 5 shall apply. For the avoidance of doubt, if Professional simply recommends Bariatric Advantage products which Professional’s Clients then purchase directly from Bariatric Advantage, this Section 5 does not apply to Professional.
5.1. Products. The price from Bariatric Advantage to Professional for products purchased by Clients from the Webpage shall be Bariatric Advantage’s then-current professionals’ price for such products.
5.2. Reporting. Professional will have access to sales reports.Within twenty (20) calendar days after the close of each calendar quarter, Bariatric Advantage will provide Professional with an accounting of sales made from the Webpage.
5.3. Payment. Upon Bariatric Advantage’s request, Professional will open Professional’s own individual account with a payment processing service of Bariatric Advantage’s choice (the “Processing Service”, e.g., CyberSource, Adyen, PayQuicker, WePay, or Bariatric Advantage itself). Clients will purchase products through the Webpage using the Processing Service. Clients will make payments for products by an approved method of payment, which shall include providing the Client’s credit card information to the Processing Service. The Processing Service shall deduct any applicable transaction fees and, on behalf of Professional, the Processing Service shall facilitate (i) Professional’s cost of goods sold (“Professional’s COGS”)for the products purchased by Clients through the Webpagebeing retained by Bariatric Advantag eand (ii) the difference between the Client’s purchase price (less any applicable transaction fees) and Professional’s COGS being remitted to Professional.
5.3.1. Bank fees, credit card transaction fees, and Processing Service transaction fees, if applicable, are included in the price paid by the Client.
5.4. Credit and Collections. Professional shall be responsible for credits and collections relating to products purchased through Professional’sProcessing Service account.
5.5 Sales Taxes.In all jurisdictions that permit or require a marketplace facilitator, marketplace provider, or other similar person to collect and remit sales, use, transaction privilege, gross receipts, excise or similar transaction taxes (collectively, “Sales Taxes”), Bariatric Advantage will collect and remit Sales Taxes to the appropriate taxing authority.Professional agrees to provide Bariatric Advantage with all information or documentation to support such treatment, including its Sales Tax registration numbers.
In all other jurisdictions or where Bariatric Advantage is not acting as a marketplace facilitator or other similar person, Professional shall be responsible to collect and remit Sales Taxes to the appropriate taxing authority. In such non-marketplace facilitator jurisdictions or where Bariatric Advantage is not acting as a marketplace facilitator or other similar person,Professional agrees that Professional will indemnify Bariatric Advantage for all Sales Tax, interest, and penalties asserted or assessed against Bariatric Advantage by a taxing authority with respect to Professional’s sales, as well as for reasonable costs to defend against such assertions or assessments.
In all jurisdictions, Professional agrees that Professional will indemnify and hold harmless Bariatric Advantage from all losses related to assessments, false claims, qui tam, and class action lawsuits with respect to Professional’s sales that may arise in such jurisdictions and that relate to the correct taxability of an item or the correct tax rate
6. CLIENT SUPPORT.
6.1 Professional Responsibility. Professional shall be responsible for educating Clients regarding the benefits of particular products that may be used by the Client. Professional, to the extent applicable, will be responsible for tracking protocol compliance on the part of Clients. Professional will be responsible for obtaining all necessary rights and permissions to permit processing of personal information as contemplated under this Agreement, including by making all necessary disclosures and obtaining applicable consents or authorizations in compliance with applicable law.
6.2 Bariatric Advantage Responsibility. Bariatric Advantage shall be responsible for providing customer service for Clients ordering products from the Webpage, as said service relates to informing Clients of product specifications, shipment status, return authorizations, product promotions, and similar matters.
7. TERM AND TERMINATION.
7.1. Term. This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.
7.2. Termination for Cause. Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Professional, the breach of an applicable Bariatric Advantage policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.
7.3. Termination without Cause. Either party may terminate this Agreement, at any time, without cause, by giving at least thirty (30) days’ prior written notice to the other party.
7.4. Effect of Termination.
7.4.1 Removal of Name and logo. Upon the termination of this Agreement for any reason, Bariatric Advantage shall promptly remove Professional’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Professional’s name and logo from Bariatric Advantage’s website.
7.4.2 Termination of Licenses. Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.
7.4.3 Survival .Sections10, ,11, ,12, and 13 shall survive any termination or expiration of this Agreement.
8. BARIATRIC ADVANTAGE’S WARRANTIES.
8.1. Work Product Warranties.Bariatric Advantage represents and warrants to Professional that the Software, the Webpage, and Bariatric Advantage-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.
8.2. Support and Maintenance Warranties. Bariatric Advantage further represents and warrants to Professional that, at all times during which Bariatric Advantage provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:
8.2.1. Availability of the Webpage.The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).
8.2.2. Bandwidth of Bariatric Advantage’s Website.The Bariatric Advantage website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.The goal shall be to prevent unreasonable user delays from accessing the Webpage, subject to Internet-related delays that are not within Bariatric Advantage’s control.
8.2.3. Security of Bariatric Advantage’s Website.Bariatric Advantage shall use commercially reasonable efforts to attempt to prevent unauthorized access to the Webpage and any databases or other sensitive material generated from or used in conjunction with the Webpage, provided, however, that Professional understands and acknowledges that Bariatric Advantage shall not be held responsible for the effects of malicious hacking or other concerted criminal or illegal activities on the part of third parties in relation hereto.
9. PROFESSIONAL’S WARRANTIES.
Professional represents and warrants that Professional will not use any advertising material with respect to the products available on the Webpage that: (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.
10. OWNERSHIP.
10.1.Ownership of the Website. Professional acknowledges and agrees that Bariatric Advantage owns the Software and all of the computer code on, and relating to,Bariatric Advantage’s website.Professional shall have no rights in or to the Software, other than the rights expressly set forth in this Agreement.
10.2.Ownership of Content.All content contributed by Bariatric Advantage and, as between the parties, all ClientWebsite Activity and Client Transaction Activity, shall be owned by Bariatric Advantage.Professional acknowledges and agrees that any content used on the Webpage and all ClientWebsite Activity and Client Transaction Activityshall at all times remain the property of Bariatric Advantage (or its licensor).Professional shall have no rights in such content or such ClientWebsite Activity or such Client Transaction Activity, other than the limited right to use for the purposes expressly set forth in this Agreement or as otherwise limited by this Agreement. Notwithstanding the foregoing, the parties agree that, to the extent Professional is a Covered Entity and Bariatric Advantage receives or creates Protected Health Information (as defined by HIPAA) as part of the services under this Agreement, such Protected Health Information shall be owned by Professional.
11. INDEMNIFICATION.
11.1.Bariatric Advantage Indemnification.Bariatric Advantage shall defend and hold harmless Professional against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Bariatric Advantage (including, without limitation, any breach of its obligations under Section 8), (b) arising from the negligent acts or omissions or the willful misconduct of Bariatric Advantage or (c) alleging product liability or other Claim relating to the integrity of a Bariatric Advantage product.Bariatric Advantage shall indemnify Professional for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Professional in defending against any such Claim.
11.2.Professional Indemnification. Professional shall defend and hold harmless Bariatric Advantage against any Claim (a) arising from any breach of this Agreement by Professional(including, without limitation, any breach of its obligations under Section 9) or (b) arising from the negligent acts or omissions or the willful misconduct of Professional.Professional shall indemnify Bariatric Advantage for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Bariatric Advantage in defending against any such Claim.
11.3.Mechanics of Indemnification.The indemnified party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
12. CONFIDENTIAL INFORMATION.
Each party shall hold the Confidential Information of the other party in confidence and shall maintain the confidentiality of the other party’s Confidential Information with the same degree of care such party uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. Neither party shall (i) disclose the other party’s Confidential Information to third parties, at any time, without the prior written consent of the other party, or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.Such restrictions shall not apply to information that (a) is already known by the recipient prior to the other party’s disclosure of such information hereunder, as established by documentary evidence; (b) becomes, through no breach of this Agreement by the recipient, publicly known; (c) is received by the recipient from a third party that was not subject to any legal or contractual restriction on disclosure of such information or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.
13. LIMITATION ON LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS OR BUSINESS OPPORTUNITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. EXCLUSIVITY; NON-COMPETITION.
Professional acknowledges that Bariatric Advantage is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Bariatric Advantage has developed, and will continue to develop, webpages for other parties whom Professional may consider competitive to Professional’s business.Professional agrees that Bariatric Advantage shall continue to be free to develop webpages for other clients. Bariatric Advantage shall not share with its other clients any identifiable data pertaining to Professional’s use of the Webpage.
15. COMPLIANCE WITH LAWS.
Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.
16. GENERAL PROVISIONS.
16.1.Governing Law; Venue.This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles.In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in the County of Orange, State of California.
16.2.Severability; No Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
16.3.Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.Personnel supplied by Bariatric Advantage shall work exclusively for Bariatric Advantage and shall not, for any purpose, be considered employees or agents of Professional.
16.4.Entire Agreement; Amendment. This Agreement, including any exhibits attached hereto and the provisions referenced in such Exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.Bariatric Advantage may propose to amend this Agreement by communicating a proposed amendment to Professional via email. Upon receipt of such an email, Professional shall have thirty (30) days within which to accept or decline the proposed amendment. If Professional does not object to the amendment within the thirty-day period following receipt of Bariatric Advantage’s email, Professional shall be deemed to have accepted the amendment.
IN WITNESS WHEREOF, the parties hereto have duly agreed to this BARIATRIC ADVANTAGE ONLINE™ WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE, effective as of the Effective Date.
By clicking “Accept”, I acknowledge that I agree to these Terms and Conditions.
If Professional is the re-seller of Bariatric Advantage products through Professional’s Webpage, Professional also acknowledge that Professional has received the Bariatric Advantage Authorized Reseller Policy, attached hereto as EXHIBIT B and available at https://www.bariatricadvantage.com/privacy-policy#authorized_reseller_policy.
EXHIBIT A
Business Associate Agreement
THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”) betweenProfessional(“Professional” or “Covered Entity”) andBariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage” or “Business Associate”) is effective as of the same date as the effective date of that certain BARIATRIC ADVANTAGE ONLINE™WEBPAGE– AGREEMENT WITH PROFESSIONAL AND LICENSE (the “Related Agreement”) between Professional and Bariatric Advantage (the “Effective Date”).
WHEREAS, in the course of fulfilling its services under the Related Agreement, Bariatric Advantage may receive, obtain, or create PHI(as defined by HIPAA) from or on behalf of Covered Entity;
WHEREAS, both Covered Entity and Bariatric Advantage desire to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 as amended by the American Recovery and Investment Act of 2009 (as so amended, “HIPAA”), and implementing regulations which are codified at 45 C.F.R. Part 160, 162 and 164, as such regulations may be amended from time to time and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 and implementing regulations and guidance issued by the Secretary, all as may be amended from time to time (as so amended, “HITECH”) (HIPAA and HITECH, collectively, the “HIPAA Rules”); and
WHEREAS, both Covered Entity and Bariatric Advantage agree that this BAA shall apply to PHI only to the extent that Professional is a Covered Entity and that Bariatric Advantage, in relation to the services offered under the Related Agreement, constitutes a Business Associate under the HIPAA Rules;
NOW, THEREFORE, in consideration of the promises set forth herein and in the Related Agreement, the delivery and sufficiency of which are acknowledged, the parties agree as follows:
I.Definitions.
Catch-all definitions. The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Business Associate, Covered Entity, Data Aggregation, De-Identify, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
II.Eligible Services.
A.The parties agree and acknowledge that not all services offered by Bariatric Advantage are HIPAAcompliant. For the sake of clarity, this BAA does not apply to Client Website Activity or other information collected via the Webpage by Bariatric Advantage acting in its independent capacity.
B.This BAA applies only to the following services, or as otherwise agreed in writing by the parties:
1.Covered Entity’s provision ofIndividuals’ names, email addresses, physical addresses, other contact information, and Covered Entity’s product recommendations to Bariatric Advantage for processing;
2.Bariatric Advantage’s provision of Client Transaction Activity as defined in the Related Agreement to Covered Entity; and
III.Obligations and Activities of Business Associate. Business Associate agrees to:
Not use or disclose PHI other than as permitted or required by this BAA or as Required By Law;
Use appropriate safeguards, and comply with the HIPAA Rules with respect to electronic PHI, designed to prevent use or disclosure of PHI other than as provided for by this BAA;
Report to Covered Entity any use or disclosure of PHI not provided for by this BAA of which it becomes aware, including Breaches of Unsecured Protected Health Information as required by the HIPAA Rules, and any successful Security Incident of which it becomes aware. The parties agree that this constitutes ongoing notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI;
In accordance with the HIPAA Rules, including 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to substantially the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;
Make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations;
Make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by Covered Entity pursuant to the HIPAA Rules, or take other measures as necessary to satisfy Covered Entity’s obligations;
Maintain and make available the information required to provide an accounting of disclosures to Covered Entity as requested by Covered Entity in order to satisfy Covered Entity’s obligations;
To the extent the parties agree that Business Associate is to carry out one or more of Covered Entity’s obligations, comply with the HIPAA Rules that apply to Covered Entity in the performance of such obligations; and
Make its internal practices, books, and records available to the Secretary, upon the Secretary’s request, for purposes of determining compliance with the HIPAA Rules.
IV.Permitted Uses and Disclosures by Business Associate.
Business Associate may only use or disclose PHI as required to satisfy its obligations to perform the Activities or as otherwise permitted herein or in the Related Agreement, provided that such use or disclosure would not violate the HIPAA Rules, if done by a Covered Entity.
Business Associate is authorized to use PHI to De-Identify PHIsuch that de-identified information is no longer PHI and not subject to the restrictions herein.
Business Associate may use or disclose PHI as Required By Law (as that term is defined in the HIPAA Rules).
Business Associate agrees to make uses and disclosures of PHI consistent with the Minimum Necessary requirement.
Business Associate may not use or disclose PHI in a manner that would violate the HIPAA Rules.
Business Associate may use PHI to contact Individuals directly for purposes of seeking individual authorizations in compliance with the HIPAA Rules for the use and disclosure of PHI for any purposes not otherwise permitted by HIPAA or this BAA. If an Individual chooses to sign such an authorization, Business Associate may use and disclose PHI to the extent permitted by the authorization, including to market Business Associate’s products.
Business Associate may use PHI to send refill reminders or other treatment-related communications on behalf of, and at the direction of, Professional.
Business Associate may use PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been Breached.
Business Associate may perform Data Aggregation activities relating to the Health Care Operations of Covered Entity.
Business Associate may use Covered Entity PHI to report violations of law to appropriate authorities, consistent with 45 CFR §164.502(j)(1).
V.Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions.
Covered Entity shall promptly notify Business Associate in writing of any limitation(s) in the Notice of Privacy Practices of Covered Entity under the HIPAA Rules, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall promptly notify Business Associate in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall promptly notify Business Associate in writing of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under the HIPAA Rules, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
VI.Permissible Requests by Covered Entity.
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.
VII.Term and Termination.
Term.The Term of this BAA shall be effective as of the Effective Date, and shall terminate (a) when all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, (b) if it is not feasible to return or destroy such Covered Entity PHI, protections are extended to such information, in accordance with the termination provisions inSection C(3), below.
Termination for Cause. Business Associate authorizes termination of this BAA by Covered Entity, if Covered Entity determines Business Associate has violated a material term of this BAA and Business Associate has not cured the violation or ended the violation within thirty (30) days after Covered Entity notifies Business Associate of the material violation. Covered Entity likewise authorizes termination of this BAA by Business Associate, if Business Associate determines Covered Entity has violated a material term of this BAA and Covered Entity has not cured the violation or ended the violation within thirty (30) days after Business Associate notifies Covered Entity of the material violation.
Obligations of Business Associate upon Termination. Upon termination of this BAA for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
1.Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
2.Return to Covered Entity or,if agreed to by Covered Entity, destroy the remaining PHI that Business Associate still maintains in any form;
3.If return or destruction of the Covered Entity PHI is not feasible, as determined by Covered Entity, Business Associate shall extend the protections of this Agreement for as long as necessary to protect such PHI and to limit any further use or disclosure. Business Associate shall only use or disclose such PHI for those purposes that make return or destruction infeasible;
4.Continue to use appropriate safeguards and comply with the HIPAA Rules with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
5.Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at paragraphs F, G, H, I, J, and K of Section IV(Permitted Uses and Disclosures), which applied prior to termination; and
6.Return to Covered Entity or, if agreed to by Covered Entity, destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
Survival. The obligations of Business Associate under this Section shall survive the termination of this BAA.
VIII.Miscellaneous.
Applicability. This BAA shall be applicable only to PHI received by Business Associate from Covered Entity or created or received by Business Associate on behalf of Covered Entity.
Amendment. The parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
Notices. All notices required or permitted by this BAA shall be in writing and shall be directed to the appropriate party at its address set forth above or such other address as a party may, from time to time, designate by written notice to the other party.
EXHIBIT B
BARIATRIC ADVANTAGE
AUTHORIZED RESELLER POLICY FOR THE UNITED STATES
Effective Date: March 1, 2023
Revised: January 22, 2024
This Bariatric Advantage Authorized Reseller Policy for the United States (this “Reseller Policy”) is issued by Bariatric Advantage (“Bariatric Advantage”) and applies to Authorized Resellers (“Reseller” or “you”) of Bariatric Advantage products (each, a “Product” and, collectively, the “Products”) in the United States of America. By purchasing products for retail sale from Bariatric Advantage, or from an Authorized Distributor appointed by Bariatric Advantage, you agree to adhere to the terms of this Reseller Policy. Until your status as an Authorized Reseller is otherwise revoked by Bariatric Advantage, in Bariatric Advantage’s sole and absolute discretion, you shall be considered an “Authorized Reseller”.Bariatric Advantage may review your activities for compliance with this Reseller Policy, and you agree to cooperate with any such investigation, including, but not limited to, permitting inspection of your facilities and records related to the sale of the Products.
1.Authorized Customers. Reseller is authorized to sell the Products only to End Users.An “End User” is a purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to any third party. Reseller shall not sell or transfer Products to any person or entity Reseller knows, or has reason to know, intends to resell the Products. Reseller shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use. Reseller shall not sell, ship, or promote the Products outside the United States of America without Bariatric Advantage’s prior written consent in each instance.
2.Online Sales.
(a)Reseller shall not offer for sale, or sell, the Products on or through any website, online marketplace (including, but not limited to, Amazon, eBay, Walmart Marketplace), mobile application, or other online forum without the prior written consent of Bariatric Advantage, to be granted by Bariatric Advantage only through execution by both parties of a Bariatric Advantage Authorized Online Seller Agreement.The terms of this Reseller Policy supersede any prior agreement between Bariatric Advantage and Reseller regarding the sale of the Products on or through websites, online marketplaces, mobile applications, and other online forums. Any authorization previously granted to Reseller by Bariatric Advantage to sell the Products on or through a website, online marketplace, mobile application, or other online forum is revoked.
(b)A Reseller (i) who is a healthcare professional with a license/certification (if required by law) or (ii) that is a business entity that has a healthcare professional as an owner, member, operator, manager, director, or other similar authority involved in the sales of the Products, is authorized to sell the Products on an eCommerce Store that is operated on behalf of such Reseller by an Authorized Distributor appointed by Bariatric Advantage. An “eCommerce Store” is a website, micro-site, or mobile application that (x) is operated by such Authorized Distributor in its legal name or registered fictitious name, (y) is primarily used to facilitate orders of the Products from End Users on behalf of healthcare professional resellers, and (z) requires the prospective End User to create an account and log-in to purchase the Products.
(c)A Reseller who purchases directly from Bariatric Advantage and who has agreed to adhere to a Bariatric Advantage Online™ Webpage – Agreement with Professional and License(the “Webpage Agreement”) is permitted to sell the Products through a webpage that is hosted by Bariatric Advantage, subject to the terms of the Webpage Agreement.
3.Sales Practices. Reseller shall conduct Reseller’s business in a reasonable and ethical manner at all times and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time. Reseller shall not make any warranties or representations concerning the Products except as expressly authorized by Bariatric Advantage. Reseller shall comply with all applicable laws, rules, regulations, and policies (a) applicable to Reseller’s business and/or (b) related to the marketing and sale of the Products. Reseller shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the Products or the reputation of Bariatric Advantage. Reseller shall not advertise Products not carried in inventory.
4.Product Care, Customer Service, and Other Quality Controls.. Reseller shall comply with the Bariatric Advantage Product Care, Customer Service, and Other Quality Controls, attached hereto as Addendum 1, and as may be amended by Bariatric Advantage from time to time.
5.Intellectual Property.
(a)Reseller acknowledges and agrees that Bariatric Advantage owns all proprietary rights in and to the Bariatric Advantage brand, name, logo, trademarks, service marks, trade dress, copyrights, software, and other intellectual property related to the Products (collectively, the “Bariatric Advantage IP”). Bariatric Advantage grants Reseller a limited, non-exclusive, non-transferable, revocable license to use the Bariatric Advantage IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease immediately upon termination of Reseller’s status as an Authorized Reseller. All goodwill arising from Reseller’s use of the Bariatric Advantage IP shall insure solely to the benefit of Bariatric Advantage.
(b)Reseller’s use of the Bariatric Advantage IP shall be in accordance with any guidelines that may be provided by Bariatric Advantage from time to time and shall be commercially reasonable as to the size, placement, and other manner of use. Bariatric Advantage reserves the right to review and approve, in its sole and absolute discretion, Reseller’s use or intended use of the Bariatric Advantage IP at any time, without limitation. In marketing the Products, Reseller shall use only images of the Products supplied by Bariatric Advantage without modification, and Reseller shall ensure that all Product images and descriptions are accurate and up to date. All content included on Bariatric Advantage’s websites, including text, graphics, images, video clips, and audio clips, is the property of, or is licensed to, Bariatric Advantage and is protected by United States copyright law. Reseller shall not use, copy, reproduce, distribute, publish, display, modify, create derivative works from, transmit, or in any other way exploit, any part of copyrighted material without obtaining the prior written consent of Bariatric Advantage in each instance, which may be withheld in Bariatric Advantage’s sole and absolute discretion.
(c)Reseller shall not create, register, or use any domain name, social media screen name, or mobile application name that contains the name of Bariatric Advantage, any Bariatric Advantage product name, any Bariatric Advantage trademark, or any misspelling or confusingly similar variation of any Bariatric Advantage product name or trademark.
(d)Reseller shall not use the Bariatric Advantage IP to purchase online advertising or as key-words for paid advertising purposes.
6.Termination.Bariatric Advantage reserves the right to terminate Reseller’s status as an Authorized Reseller with written or electronic notice. Upon termination of Reseller’s status as an Authorized Reseller, Reseller shall immediately cease (i) selling the Products, (ii) acting in any manner that may reasonably give the impression that Reseller is an Authorized Reseller of Bariatric Advantage Products or has any affiliation whatsoever with Bariatric Advantage, and (iii) using any Bariatric Advantage IP.
7.Modification..Bariatric Advantage reserves the right to update, amend, or modify this Reseller Policy at any time. Unless otherwise specified, such amendments will take effect immediately, and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the Bariatric Advantage IP, or use of any other information or materials provided by Bariatric Advantage to Reseller will be deemed Reseller’s acceptance of the amendments.
8.Confidentiality.. This Reseller Policy, including its attached Addendum 1, constitutes confidential, proprietary information of Bariatric Advantage and shall not be used for any purpose other than the authorized advertising and sale of the Products nor be disclosed to any third party without the prior written consent of Bariatric Advantage.
ADDENDUM 1to AUTHORIZED RESELLER POLICY
BARIATRIC ADVANTAGE
PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS
Authorized Reseller shall:
1. Comply with all instructions provided by Bariatric Advantage regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels; store the Products in a sanitary environment away from direct sunlight; unless otherwise instructed by Bariatric Advantage, store the Products at room temperature in a cool dry place and tightly capped; handle the Products in accordance with good industrial hygiene and safety practices;
2. Sell the Products in their original packaging;
3. Not relabel, repackage, or otherwise alter the Products or their packaging (including refraining from separating bundled Products and refraining from bundling separate Products);
4. Not remove, translate, or modify the contents of any label or literature on or accompanying the Products;
5. Not tamper with, deface, or otherwise alter any serial number, UPC code, batch or lot code, or other identifying information on the Products or their packaging or dilute the Products;
6. Not resell any Product that has been returned opened or repackaged;
7. Inspect the Products and their packaging, promptly upon receipt of the Products, for damage, defects, broken seals, evidence of tampering, or other nonconformance (each, a “Defect”) and, if any Defect is identified, not offer the Product for sale and promptly report the Defect to Bariatric Advantage at (800) 898-6888;
8. Manage Product inventory, in order to insure freshness, on a “first-in, first-out” manner, with older inventory being sold before newer inventory of the same Product;
9. Inspect Product inventory regularly for expired or soon-to-be expired Products, not sell any Products that are expired or within ninety (90) days of expiration, and destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Bariatric Advantage and applicable law;
10. Become familiar with the special features of the Products marketed for sale and obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable guarantee or return policy; be available to respond to customer questions and concerns both before and after sale of the Products and respond to customer inquiries promptly;
11. Cooperate with Bariatric Advantage with respect to any Product tracking systems that Bariatric Advantage may implement from time to time;
12. Cooperate with Bariatric Advantage with respect to any Product recall or other consumer safety information dissemination efforts;
13. Report to Bariatric Advantage any customer complaint or adverse claim regarding the Products and assist Bariatric Advantage in investigating and resolving any such complaint or adverse claim; and
14. Cooperate with Bariatric Advantage in the investigation and resolution of any quality or customer service issues related to the sale of the Products, including disclosing information regarding Product sources, shipment, and handling.
