EFFECTIVE DATE: 05/2020
1. Terms and Acceptance
Reseller Product Purchase Terms & Conditions The following terms and conditions (the "Agreement") shall govern the purchase of BodyBio, Inc. ("BodyBio") products ("Product") by the person or entity identified in the foregoing Authorization/Application ("Reseller").
Submission of the attached application (“Application") and/or purchase of Product indicates Reseller's agreement to the exact terms and conditions of this Agreement. This Agreement contains the entire agreement of the parties. Failure of either party to enforce any of its rights under this Agreement shall not constitute a waiver of such rights or any other rights. No amendment to this Agreement shall be binding unless approved in writing by BodyBio. BodyBio may approve or reject Reseller's Application for any or no reason, in its sole discretion, Neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein or in the Application.
2. Payment Terms; Taxes
Payment shall be due and payable in full at the time of order.
BodyBio will deliver Product by common carrier F.O.B. BodyBio's warehouse. Title and risk of loss shall transfer from BodyBio to Reseller upon delivery of the Product by BodyBio to a common carrier; provided that, until paid in full, BodyBio retains, and Reseller hereby grants BodyBio, a purchase money security interest in the Product. Reseller shall promptly perform all actions necessary for BodyBio to effect and perfect such security interest.
4. Internet Resale Prohibited
Reseller shall not advertise, list, offer for sale, sell or distribute any Product via the Internet, except through Reseller's wholly-owned website. Without limiting the generality of the foregoing, Reseller shall not sell Product via any third-party websites, mobile applications, or online marketplaces including Amazon.com and Ebay.com, and shall not advertise Product on the Internet except on Reseller's own website. Reseller shall not advertise using banner or pop-up advertisements, or using sponsored searches (e.g., Google AdWords, Yahoo! Search Marketing, or Bing Search Marketing).
5. Reseller/Distributor Resale Prohibited
Reseller shall not sell Product to anyone who Reseller suspects, knows, or reasonably should know, intends to re-sell or re-distribute the Product. Reseller shall only sell the Product in bona fide retail transactions.
7. Minimum Advertised Pricing
Reseller shall abide by BodyBio's minimum advertised pricing policy, as may be updated from time to time, available at www.bodybio.com/map.
8. Quality Control
Reseller shall comply with all of BodyBio's quality controls, protocols, and instructions with respect to the Product, in order to maintain the quality of the Product, as may be updated from time-to-time by BodyBio.
9. Injunctive Relief
The parties agree that breach of Sections 3, 4, 5, 6, and 7 ("Sections") will irreparably harm BodyBio's brand reputation and goodwill. Accordingly, BodyBio shall have the right to seek injunctive or other equitable relief to prevent a breach or threatened breach of those Sections, without the necessity of posting a bond or other security.
10. Liquidated Damages
Reseller acknowledges that the Sections are necessary and proper in order to protect BodyBio's brand reputation and goodwill, and to preserve authorized resellers (including Reseller's) ability to make a reasonable margin on Product sales. Reseller agrees that if it violates the Sections, BodyBio will be damaged in an amount that will be difficult or impossible to ascertain. Accordingly, Reseller agrees to pay liquidated damages to compensate BodyBio for damages resulting from Reseller's breach of the Sections (the “Liquidated Damages”). The parties have made advance provision for Liquidated Damages to avoid controversy, delay and expense in the event of any breach of the Sections. Liquidated Damages shall be an amount equal to $200.00 for each separate breach for each day of breach. Each breach with respect to a Product shall be considered a separate breach for the purposes of this Section. For example, if Reseller is in breach with respect to three different Product for a period of 10 days, Reseller will be deemed to have committed 30 breaches and be subject to Liquidated
Damages of $6,000.00. The Liquidated Damages are estimated based on the various damages that BodyBio expects to suffer upon any breach of the Sections, including lost sales; infringement of BodyBio's trademarks and other intellectual property; irreparable harm to BodyBio's business, customer relationships, goodwill and quality control procedures; and costs of investigating breaches. Reseller agrees that the Liquidated Damages are not a penalty and are reasonably estimated in light of the anticipated or actual harm that would be caused by a breach and the difficulty of proving the
amount of loss and otherwise providing an adequate remedy to Body Bio.
Reseller's representations made in the Application and this Agreement are true and correct. Reseller shall promptly advise BodyBio if those representations are no longer true and correct.
12. Independent Contractors
BodyBio's relationship with Reseller is that of an independent contractor, and nothing in this Agreement is intended to create any partnership, agency, joint venture or employee relationship.
13. Intellectual Property
All trademarks, tradedress, copyright and goodwill as they relate to the Product, as well as the packaging, image, merchandising and advertising materials remain the sole and exclusive property of BodyBio and no rights thereto are granted to Reseller by virtue of this Agreement.
14. Disclaimer of Warranties
PROVIDED THE PRODUCT IS ONLY SOLD IN ACCORDANCE WITH THIS AGREEMENT. BODYBIO WARRANTS THAT THE PRODUCT WILL CONFORM TO THE GMP REQUIREMENTS LISTED IN SECTION 8 OF NSF/ANSI 173. OTHERWISE, PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
ANY OTHER STATUTORY OR COMMON LAW WARRANTY.
15. Limitation of Liability
EXCEPT AS EXPLICITLY SET FORTH HEREIN.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM OR RELATING TO THE PRODUCT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BODYBIO'S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCT AT ISSUE,
OR IF NO PRODUCT IS AT ISSUE, UNDER THIS AGREEMENT.
16. Termination; Suspension; Survival
This Agreement may be terminated by either party at any time by giving the other party written notice of such termination. In lieu of termination, BodyBio may elect to suspend Reseller for breach until Reseller has cured such breaches to BodyBio's satisfaction. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive. 16. Governing Law; Disputes. The laws of New Jersey, without giving effect to its principles of conflicts of law, govern any dispute arising in connection with this Agreement. Any proceeding arising out of this Agreement may be brought only in the state or federal courts of New Jersey, and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Reseller shall pay BodyBio's legal fees in connection with enforcing this Agreement.
All notices hereunder shall be in writing and shall be deemed to have been-given when hand delivered or mailed by registered or certified mail, to the address set forth on the Application, or to such addresses as the parties shall designate.
All notices hereunder shall be in writing and shall be deemed to have been given when delivered by registered or certified mail, to the address set forth on the Application, or to such addresses as the parties shall designate.
Reseller's rights and/or obligations under this Agreement may not be transferred or assigned in any manner, to any other person or entity, without the written consent of BodyBio.