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”).
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 10, 11, 12, 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.
A. 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.
- 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.
- This BAA applies only to the following services, or as otherwise agreed in writing by the parties:
- Covered Entity’s provision of Individuals’ names, email addresses, physical addresses, other contact information, and Covered Entity’s product recommendations to Metagenics for processing;
- Metagenics’ provision of Client Transaction Activity as defined in the Related Agreement to Covered Entity; and
- 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:
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.
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