eStore Terms and Conditions

Metagenics Online™ Webpage – Agreement with Professional and License

THIS METAGENICS 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 Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Metagenics”), and Professional (“Professional”).

RECITALS

A.               Metagenics is a life sciences company that manufactures nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Metagenics’ own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).

B.           Metagenics has developed software (the “Software”) for the operation of its website by which webpages are identified to individual healthcare professionals in order to support the sale of Metagenics products to such professionals’ clients.

C.           Professional is interested in establishing a webpage on Metagenics’ website (the “Webpage”), through which Professional’s clients (“Clients”) will purchase Metagenics dietary supplements and medical foods.

D.           Metagenics acknowledges that Professional’s name and logo are a valuable asset unique to Professional and that these assets have substantial value in the marketplace; Metagenics desires to use Professional’s name and logo on the Webpage, and Professional is willing to grant Metagenics 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 Metagenics, 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 Metagenics 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 by Metagenics and all software Metagenics 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 Metagenics’ own website, using the Software, and maintained and supported on the Metagenics 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 Metagenics products for order and purchase, the presentation of advertising, and other purposes.

2.2.      License.  Professional hereby grants to Metagenics 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 Metagenics 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 Metagenics.

2.5.      Development Services.  Metagenics will provide design, programming, development and other services relating to the Webpage.

3.         WEBPAGE SUPPORT SERVICES.

Metagenics shall provide the following ongoing Webpage support to Professional.

3.1.      Establishment of Webpage on Metagenics Server.  Metagenics will establish the Webpage as part of Metagenics’ own website, which is on a server provided by Metagenics and under Metagenics’ control, support, and maintenance.

3.2.      Content.  Professional shall not supplement, modify or alter any content on the Webpage, except using functionality provided by Metagenics for the Webpage, unless any such change has been consented to in writing by Metagenics (email to be sufficient).  Metagenics will provide password protected access for Professional.

3.3.      Backup.  Metagenics shall maintain a complete and current copy of Metagenics’ website on a separate server.  In the event that service is interrupted to Metagenics’ 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 Metagenics, is subject to Metagenics’ privacy policy, and is Metagenics Confidential Information.  For the term of this Agreement, Metagenics hereby grants Professional a limited, non-transferrable, right and license to use portions of Client Website Activity related to Client purchase transactions on the Webpage (hereinafter, “Client Transaction Activity”).  Metagenics 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 Metagenics 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 Metagenics 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.  Metagenics 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 products to make available on the Webpage, and for instructing Professional’s Clients on specific products to support the needs of such Clients.  Metagenics 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 Metagenics’ distribution center.  Products will be shipped from the distribution center to the Client using shipping documents and shipping labels that include Metagenics’ return address.

4.4.      Inventory Levels.  Throughout the Term of this Agreement, Metagenics shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Metagenics distribution center to meet Clients’ demand for the products listed on the Webpage.  Metagenics will establish inventory levels to reflect the actual sales performance of each product SKU.

4.5.      Shipping Charges; Undeliverable Shipments; Satisfaction Guarantee; Product Recalls.

4.5.1.   Shipping charges (from the Metagenics distribution center) will be paid by the Client.  Metagenics will determine and charge the appropriate shipping/handling charge per outgoing order.

4.5.2.   Metagenics will be responsible for undeliverable or damaged shipments from Metagenics to Clients, and Metagenics will handle such damaged shipments according to its then-current policy regarding such shipments.

4.5.3.   Metagenics will specify the satisfaction guarantee policy to which products will be subject.

4.5.4.   Metagenics will be responsible for product recalls.

4.6.      Product Pricing.  Metagenics 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 Metagenics products through Professional’s Webpage, this Section 5 shall apply.  For the avoidance of doubt, if Professional simply recommends Metagenics products which Professional’s Clients then purchase directly from Metagenics, this Section 5 does not apply to Professional.

5.1.      Products.  The price from Metagenics to Professional for products purchased by Clients from the Webpage shall be Metagenics’ 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, Metagenics will provide Professional with an accounting of sales made from the Webpage.

5.3.      Payment.  Upon Metagenics’ request, Professional will open Professional’s own individual account with a payment processing service of Metagenics’ choice (the “Processing Service”, e.g., CyberSource, Adyen, PayQuicker, WePay, or Metagenics 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 Webpage being retained by Metagenics and (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’s Processing 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”), Metagenics will collect and remit Sales Taxes to the appropriate taxing authority.  Professional agrees to provide Metagenics with all information or documentation to support such treatment, including its Sales Tax registration numbers.

In all other jurisdictions or where Metagenics 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 Metagenics is not acting as a marketplace facilitator or other similar person, Professional agrees that Professional will indemnify Metagenics for all Sales Tax, interest, and penalties asserted or assessed against Metagenics 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 Metagenics 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       Metagenics Responsibility.  Metagenics 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 Metagenics 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, Metagenics 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 Metagenics’ 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.  Sections 101112, and 13 shall survive any termination or expiration of this Agreement.

8.         METAGENICS’ WARRANTIES.

8.1.      Work Product Warranties.  Metagenics represents and warrants to Professional that the Software, the Webpage, and Metagenics-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.  Metagenics further represents and warrants to Professional that, at all times during which Metagenics 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 Metagenics’ Website.  The Metagenics 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 Metagenics’ control.

8.2.3.   Security of Metagenics’ Website.  Metagenics 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 Metagenics 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 Metagenics owns the Software and all of the computer code on, and relating to, Metagenics’ 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 Metagenics and, as between the parties, all Client Website Activity and Client Transaction Activity, shall be owned by Metagenics.  Professional acknowledges and agrees that any content used on the Webpage and all Client Website Activity and Client Transaction Activity shall at all times remain the property of Metagenics (or its licensor).  Professional shall have no rights in such content or such Client Website 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 Metagenics 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.    Metagenics Indemnification.  Metagenics 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 Metagenics (including, without limitation, any breach of its obligations under Section 8), (b) arising from the negligent acts or omissions or the willful misconduct of Metagenics or (c) alleging product liability or other Claim relating to the integrity of a Metagenics product.  Metagenics 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 Metagenics 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 Metagenics for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Metagenics 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 Metagenics is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Metagenics has developed, and will continue to develop, webpages for other parties whom Professional may consider competitive to Professional’s business.  Professional agrees that Metagenics shall continue to be free to develop webpages for other clients.  Metagenics 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 Metagenics shall work exclusively for Metagenics 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.  Metagenics 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 Metagenics’ email, Professional shall be deemed to have accepted the amendment.

IN WITNESS WHEREOF, the parties hereto have duly agreed to this METAGENICS 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 Metagenics products through Professional’s Webpage, Professional also acknowledge that Professional has received the Metagenics Authorized Reseller Policy, attached hereto as EXHIBIT B and available at https://www.metagenics.com/privacy-policy#authorized_reseller_policy.

EXHIBIT A

Business Associate Agreement

THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”) between Professional (“Professional” or “Covered Entity”) and Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Metagenics” or “Business Associate”) is effective as of the same date as the effective date of that certain METAGENICS ONLINE™ WEBPAGE – AGREEMENT WITH PROFESSIONAL AND LICENSE (the “Related Agreement”) between Professional and Metagenics (the “Effective Date”).

WHEREAS, in the course of fulfilling its services under the Related Agreement, Metagenics may receive, obtain, or create PHI (as defined by HIPAA) from or on behalf of Covered Entity;

WHEREAS, both Covered Entity and Metagenics 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 Metagenics agree that this BAA shall apply to PHI only to the extent that Professional is a Covered Entity and that Metagenics, 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.

       ACatch-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.

  1. The parties agree and acknowledge that not all services offered by Metagenics are HIPAA compliant.  For the sake of clarity, this BAA does not apply to Client Website Activity or other information collected via the Webpage by Metagenics acting in its independent capacity.
  2. This BAA applies only to the following services, or as otherwise agreed in writing by the parties:
    1. Covered Entity’s provision of Individuals’ names, email addresses, physical addresses, other contact information, and Covered Entity’s product recommendations to Metagenics for processing;
    2. Metagenics’ provision of Client Transaction Activity as defined in the Related Agreement to Covered Entity; and
    3. Any Metagenics’ services to Covered Entity enabling Covered Entity-to-Individual (or vice versa) communication.

III. Obligations and Activities of Business Associate.  Business Associate agrees to:

  1. Not use or disclose PHI other than as permitted or required by this BAA or as Required By Law;
  2. 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;
  3. 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;
  4. 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;
  5. Make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations;
  6. 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;
  7. 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;
  8. 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
  9. 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.

  1. 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.
  2. Business Associate is authorized to use PHI to De-Identify PHI such that de-identified information is no longer PHI and not subject to the restrictions herein.
  3. Business Associate may use or disclose PHI as Required By Law (as that term is defined in the HIPAA Rules).
  4. Business Associate agrees to make uses and disclosures of PHI consistent with the Minimum Necessary requirement.
  5. Business Associate may not use or disclose PHI in a manner that would violate the HIPAA Rules.
  6. 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.
  7. Business Associate may use PHI to send refill reminders or other treatment-related communications on behalf of, and at the direction of, Professional.
  8. Business Associate may use PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
  9. 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.
  10. Business Associate may perform Data Aggregation activities relating to the Health Care Operations of Covered Entity.
  11. 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.

  1. 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.
  2. 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.
  3. 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.

  1. 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 in Section C(3), below.
  2. 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.
  3. 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.
  4. Survival.  The obligations of Business Associate under this Section shall survive the termination of this BAA.

VIII. Miscellaneous.

  1. 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.
  2. 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.
  3. Interpretation.  Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
  4. 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

Metagenics LLC

AUTHORIZED RESELLER POLICY

FOR THE UNITED STATES

Effective Date: July 1, 2021

Revised:  January 22, 2024

This Metagenics LLC Authorized Reseller Policy for the United States (this “Reseller Policy”) is issued by Metagenics LLC (“Metagenics”) and applies to Authorized Resellers (“Reseller” or “you”) of Metagenics products (each, a “Product” and, collectively, the “Products”) in the United States of America.  By purchasing products for retail sale from Metagenics, or from an Authorized Distributor appointed by Metagenics, you agree to adhere to the terms of this Reseller Policy.  Until your status as an Authorized Reseller is otherwise revoked by Metagenics, in Metagenics’ sole and absolute discretion, you shall be considered an “Authorized Reseller”.  Metagenics 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 Metagenics’ prior written consent in each instance.
  2. Online Sales.
    1. 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 Metagenics, to be granted by Metagenics only through execution by both parties of a Metagenics LLC Authorized Online Seller Agreement.  The terms of this Reseller Policy supersede any prior agreement between Metagenics 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 Metagenics to sell the Products on or through a website, online marketplace, mobile application, or other online forum is revoked.
    2. 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 Metagenics.  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.
    3. A Reseller who purchases directly from Metagenics and who has agreed to adhere to a Metagenics Online™ Webpage – Agreement with Professional and License (the “Webpage Agreement”) is permitted to sell the Products through a webpage that is hosted by Metagenics, 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 Metagenics.  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 Metagenics.  Reseller shall not advertise Products not carried in inventory.
  4. Product Care, Customer Service, and Other Quality Controls.  Reseller shall comply with the Metagenics LLC Product Care, Customer Service, and Other Quality Controls, attached hereto as Addendum 1, and as may be amended by Metagenics from time to time.
  5. Intellectual Property.
    1. Reseller acknowledges and agrees that Metagenics owns all proprietary rights in and to the Metagenics brand, name, logo, trademarks, service marks, trade dress, copyrights, software, and other intellectual property related to the Products (collectively, the “Metagenics IP”).  Metagenics grants Reseller a limited, non-exclusive, non-transferable, revocable license to use the Metagenics 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 Metagenics IP shall inure solely to the benefit of Metagenics.
    2. Reseller’s use of the Metagenics IP shall be in accordance with any guidelines that may be provided by Metagenics from time to time and shall be commercially reasonable as to the size, placement, and other manner of use.  Metagenics reserves the right to review and approve, in its sole and absolute discretion, Reseller’s use or intended use of the Metagenics IP at any time, without limitation.  In marketing the Products, Reseller shall use only images of the Products supplied by Metagenics without modification, and Reseller shall ensure that all Product images and descriptions are accurate and up to date.  All content included on Metagenics’ websites, including text, graphics, images, video clips, and audio clips, is the property of, or is licensed to, Metagenics 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 Metagenics in each instance, which may be withheld in Metagenics’ sole and absolute discretion.
    3. Reseller shall not create, register, or use any domain name, social media screenname, or mobile application name that contains the name of Metagenics, any Metagenics product name, any Metagenics trademark, or any misspelling or confusingly similar variation of any Metagenics product name or trademark.
    4. Reseller shall not use the Metagenics IP to purchase online advertising or as key-words for paid advertising purposes.
  6. Termination.  Metagenics 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 Metagenics Products or has any affiliation whatsoever with Metagenics, and (iii) using any Metagenics IP.
  7. Modification.  Metagenics 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 Metagenics IP, or use of any other information or materials provided by Metagenics 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 Metagenics 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 Metagenics.

ADDENDUM 1 to AUTHORIZED RESELLER POLICY

Metagenics LLC

PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS

Authorized Reseller shall:

  1.   Comply with all instructions provided by Metagenics 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 Metagenics, 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 Metagenics at (800) 692-9400;
  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 Metagenics 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 Metagenics with respect to any Product tracking systems that Metagenics may implement from time to time;
  12.   Cooperate with Metagenics with respect to any Product recall or other consumer safety information dissemination efforts;
  13.   Report to Metagenics any customer complaint or adverse claim regarding the Products and assist Metagenics in investigating and resolving any such complaint or adverse claim; and
  14.   Cooperate with Metagenics 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.