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Terms of Sale Wholesale Accounts

Last Modified: Feb 5, 2021

1. Applicability; Scope.

These Designs for Health Terms of Sale – Wholesale (“Terms of Sale”) are a binding agreement between the individual or entity entering into this agreement (“You”) and Designs for Health, Inc. (“DFH”). You and DFH are each a “Party” and both “Parties” hereunder. If You are authorized to order products (“Products”) from DFH for resale to others, then by placing such orders (“Orders”) or accepting delivery of such Products, You agree to be bound by these Terms of Sale. If any other agreement between You and DFH includes a hyperlink to these Terms of Sale or otherwise incorporates these Terms of Sale by reference, then these Terms of Sale apply to You. To the extent these Terms of Sale conflict with any other written agreement between You and DFH, the conflict shall be resolved as set forth in such other written agreement or otherwise in favor of such other written agreement. As used herein, “Agreement” means the combination of these Terms of Sale and any other written agreement between You and DFH integrating these Terms of Sale. You must be eighteen (18) years of age or older to order Products.

2. Orders Procedure

The following information is referred to as “Order Transaction Terms”: (i) identification of Products to be purchased, including SKUs and all other Product identifiers; (ii) quantities ordered; (iii) requested delivery date; and (iv) the street address to which DFH will deliver the Products ordered (“Delivery Point”). If You and DFH agree that You shall submit Orders by purchase order (“Purchase Order”), then You will ensure that the Order Transaction Terms are included in all Purchase Orders. Otherwise, DFH will prompt You to specify the Order Transaction Terms when You place an Order through a DFH website, by phone, or through other means. All Order Transaction Terms are hereby incorporated by reference into these Terms of Sale, and any reference to these Terms of Sale shall be read to include all Order Transaction Terms. All Orders are subject to DFH minimum order quantities or lead times currently in effect.

By placing an Order, You make an offer to purchase Products under only the Agreement and no other terms. Any acceptance by DFH of an Order from You is an acceptance only under the Agreement and no other terms. Any changes or additions You may attempt to make to the Agreement, whether You communicate them when placing Your Order or otherwise, are void and have no effect. The Agreement supersedes and take precedence over any different or additional terms set forth in any Purchase Order, general terms and conditions, and/or other documentation related to the subject matter of the Terms, regardless of whether or when You submit or submitted Your Purchase Order or such different or additional terms. Any attempt by You to limit DFH’s acceptance to the terms of Your Order, Purchase Order, Your general terms and conditions, or any document issued by You in connection with Orders is void and has no effect, and DFH’s acceptance of such Order or Purchase Order is not an acceptance of different or additional terms in such Order or Purchase Order. Fulfillment of Your Order does not constitute acceptance of any of Your terms and conditions and does not serve to modify or amend these Terms of Sale or any other provisions in the Agreement.

DFH may, in its sole discretion, accept or reject any Order. DFH may accept any Order, in whole or in part, by confirming the Order (whether by written confirmation, invoice, or otherwise) or by shipping the Products, whichever occurs first. No Order is binding on DFH unless DFH accepts it as provided in these Terms of Sale. Once DFH accepts an Order, You are bound to purchase the Products in the Order, and You cannot cancel or otherwise change the Order unless DFH agrees in writing. DFH may, however, cancel any Order for any reason in DFH’s sole discretion and without liability or penalty.

3. Shipping and Handling

You agree to pay any shipping and handling charges shown at the time You make a purchase. DFH reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but DFH will provide notice of the charges applicable to You before You make Your purchase. Generally, shipping is handled by a third-party courier. When You purchase a Product from DFH, any shipping times DFH presents to You are estimates only. Actual delivery dates may vary. You agree that You will not obtain or direct shipment of a Product for export. All Products purchased from DFH are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to You upon DFH’s delivery of the Product to the third-party courier. DFH will deliver the Products to You at the location specified in Your Purchase Order or the location provided by You at the time of Your Order.

4. Deliveries

You are responsible for inspecting all Products You receive from DFH for any damage or other issues upon delivery. From the time of delivery, the condition and consumption of the Products are solely at Your risk, and You are solely responsible for the proper and safe handling, preparation, storage, use and consumption of the Products following delivery. Failure to follow safe food handling practices may increase the risk of foodborne illness.

In the case of inclement weather or other events beyond DFH’s control that interfere with DFH’s ability to deliver Your Order, DFH will attempt to deliver Your Order as soon as reasonably possible.

5. Return Policy

If You are dissatisfied with a Product and would like to inquire about a return, please contact the DFH Customer Experience team at 1-860-623-6314, Monday - Thursday: 8:30am - 8:00pm ET or Friday: 9:00am - 5:00pm ET. Prior authorization from the Customer Experience team and proof of purchase is required for all returns. Only unopened items returned with prior authorization and proof of purchase within thirty (30) days of delivery may be accepted as returns. DFH, in its sole discretion, will either replace or provide a credit for all Products accepted as returns. A restocking fee of 20% of the purchase price of the Products will be charged for all returns not covered by warranty. Unless DFH agrees otherwise in writing, reports of damaged Products or order discrepancies must be communicated to DFH within seventy-two (72) hours of delivery in order to qualify for return. Private label, heat sensitive and Products marked “Non-Returnable” are non-returnable and no credit or replacement will be given, unless covered by warranty. All barcodes on product labels must be intact. Products with labels that have been altered in any way are non-returnable.

6. Autoship Program

Benefits of Autoship

You also will be able to select how often You would like Your Product(s) delivered. DFH reserves the right to change Autoship benefits at any time in DFH’s sole discretion, including discount amounts and eligibility used to determine discount amounts. All changes will apply to future orders, including for current subscriptions to Autoship.

Some of the offer details may change as You receive deliveries over time (for example, price, taxes, availability, shipping charges).

Notifications; Automatic Order Creation

When You order an eligible Product and enroll in Autoship, You will receive notice that Your Autoship subscription has been created and that Your first order will be processed. Your Autoship subscription will thereafter automatically create a new order according to Your chosen delivery schedule, until You cancel. Prior to the processing of each subsequent order, You will receive a notice including Your estimated ship date, last date to modify You order and estimated pricing.

DFH may, in DFH’s sole discretion, terminate Your subscriptions at any time without notice. If DFH does so, You will only be charged for orders that have been shipped to You.

Eligible Purchases

Autoship benefits are limited to Products listed as eligible for Autoship, and then only if You select the Autoship delivery method. Subscriptions to Autoship are good while supplies last. Your participation in the Autoship program is personal to You, and You may not assign or transfer Your subscription or any of the benefits to any third party without DFH’s authorization.

All returns under Autoship are subject to the return policy outlined above in Section 5 (“Return Policy”). Autoship subscriptions are void where prohibited.

Autoship Pricing; Payment; Renewal

The amount charged for an eligible Product will be less than or equal to the price of the item on the applicable DFH website (including but not limited to: www.designsforhealth.com, www.shop.designsforhealth.com,www.fxchocolate.com, and wellworld.designsforhealth.com) at the time Your order is processed or lower. The total cost charged to Your payment method for each Autoship order will be the price of the item, plus any applicable shipping and handling charges and sales tax.

The charge for each Autoship item shipment will be billed to the payment method used to create Your subscription or as otherwise directed by You.

Your subscription will remain in effect until it is cancelled. You can cancel at any time through the Site by navigating to My Account – Orders – Autoship.

7. Payment and Billing

By providing a credit card or other payment method that DFH accepts, You represent and warrant that You are authorized to use the designated payment method and that You authorize DFH (or DFH’s third party payment processor) to charge Your payment method for the total amount of Your Order (including any applicable taxes and other charges), without any set-off or other reduction. If the payment method cannot be verified, is invalid or is otherwise not acceptable, Your Order may be suspended or cancelled. You must resolve any problem DFH encounters in order to proceed with Your Order.

Any payment terms presented to You for the purchase of Products or other services are deemed part of these Terms. You acknowledge that the amount billed may vary due to promotional offers, or changes in applicable taxes or other charges, and You authorize DFH (or DFH’s third party payment processor) to charge Your payment method for the corresponding amount.

DFH may use a third-party payment processor (the “Payment Processor”) to bill You through a payment account for Your purchase of Products. If so, the processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to the Terms. DFH is not responsible for errors by the Payment Processor. By choosing to purchase Products, You agree to pay DFH, directly or through the Payment Processor, all charges at the prices for the Products in accordance with the applicable payment terms and You authorize DFH, directly or through the Payment Processor, to charge Your chosen payment provider (Your “Payment Method”). You agree to make payments using that selected Payment Method. DFH reserves the right to correct any errors or mistakes that it makes even if DFH or its Payment Processor have already requested or received payment.

8. Pricing and Availability

All prices are in U.S. dollars, and applicable taxes and other charges, if any, are additional. DFH reserves the right to update the advertised prices of the Products, and to modify any discounts or promotions that may be offered, as DFH may determine in its sole discretion, at any time and without notice.

All of DFH’s Products are subject to availability, and DFH reserves the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products without prior notice. DFH strives to provide You with high-quality Products, and given the perishable nature of certain Products and market conditions beyond DFH’s control, items may go on back order when not available or may be discontinued.

9. Coupons and Promotional Codes

Coupons and promotional codes provided to You are for Your individual use only. You may not transfer, reproduce, trade, offer for sale, publish or otherwise share coupons and promotional codes unless the terms of the coupon or promotional code expressly allow You to do so. DFH reserves the right to cancel Orders when DFH has reason to believe that any coupon or promotional code is being used by someone other than the intended recipient, or in the case of suspected abuse, misuse or fraud. DFH reserves the right to terminate a coupon or promotional code offering at any time and/or set expiration dates for such offers at any time and in DFH’s sole discretion. Coupon codes and promotional codes are not valid on prior purchases.

10. Sales Taxes

Unless You provide a valid sales tax exemption certificate to DFH, DFH will collect applicable sales tax on Products shipped to the states, territories, or other jurisdictions for which DFH determines DFH has a duty to collect sales tax. If an item is subject to sales tax, You agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

11. Intellectual Property

You shall not use DFH’s trademarks or copyrighted material without permission, and You shall follow DFH’s brand use guidelines, policies, or other instructions DFH may give You from time to time regarding the use of DFH’s trademarks and copyrighted material. You shall not attempt to manufacture, duplicate, or otherwise to copy, reverse engineer or reproduce any of the Products. DFH retains all of its rights related to its trademarks, copyrights and other intellectual property.

12. Product Warranty

Product Warranty

DFH warrants for a period of one (1) year from the date of manufacturing that at the time of delivery: (i) each Product shall conform to DFH’s written specifications for such Product; (ii) each Product shall be fit for human consumption; (iii) title to the Products shall be free from any lien, security interest or encumbrance; and (iv) except for Hemp Products, the Product labels shall comply with applicable laws and regulations. “Hemp Products” means any and all Products containing any ingredient derived from ‘hemp’, as defined in Section 297A(1) of the Agricultural Marketing Act of 1946, as amended by the Agricultural Improvement Act of 2018. DFH shall at DFH’s option either replace or provide a credit for any Products not conforming to the warranties set forth in this Section and returned pursuant to the Return Policy in Section 5. This is Your sole remedy and DFH’s entire liability for breach of the warranties provided in this Section.

Product Warranty Exceptions

You void the above Product warranty (“Product Warranty”) if: (i) You sell, consume, or otherwise use the Products after notifying DFH that they do not conform to the Product Warranty; (ii) You fail to follow DFH’s oral or written instructions as to the storage, handling, distribution or use of the Products; or (iii) You alter, adulterate, break the seal on, or remove any bar code from the Products.

Product Warranty Disclaimer

EXCEPT AS SET FORTH IN IN THIS SECTION 12, NEITHER DFH NOR ANY PERSON ACTING ON DFH’S BEHALF MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

Hemp Products

Notwithstanding anything to the contrary in the Terms, DFH makes no representation or warranty and disclaims all liability, including any obligation to indemnify You, with respect to compliance with laws and regulations regarding any and all Products containing any ingredient derived from ‘hemp’, as defined in Section 297A(1) of the Agricultural Marketing Act of 1946, as amended by the Agricultural Improvement Act of 2018 (“Hemp Products”). For the avoidance of doubt, You and DFH (the “Parties”) acknowledge and agree that You are not obligated to purchase Hemp Products under the Terms.

13. Indemnification

You shall indemnify, defend and hold harmless DFH and its officers, directors, employees, agents, independent contractors, affiliates, successors and permitted assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, costs, or expenses, including reasonable attorneys’ fees and court costs (each, a “Loss”), incurred by an Indemnified Party directly as a result of any claim of a third party (“Claim”) arising out of: (i) Your breach of any covenant, representation, or warranty in the Agreement; (ii) Your marketing, advertising, promotion or sale of any Product, except to the extent arising out of the use or consumption of any Product in accordance with labeled instructions; and (iii) Your violation of applicable laws related to Your purchase or resale of Products, including but not limited to California’s Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, and the regulations promulgated thereunder, commonly known as Prop 65.

You will cooperate fully as required by Indemnified Parties in the defense of any Claims. Notwithstanding the foregoing, Indemnified Parties retain the exclusive right to settle, compromise, and pay Claims, in which case You shall reimburse Indemnified Parties for such losses. Indemnified Parties reserve the right to assume the exclusive defense and control of Claims. You will not settle any Claims without, in each instance, the prior written consent of an officer of an Indemnified Party against which the Claim is made. This section is not intended to limit any causes of action against DFH that You may have but are not waivable under applicable law. Without the consent of an officer of the Party against which a Claim is made, You shall not enter into any settlement that admits liability as to such Claim on behalf of such Indemnified Party or causes an Indemnified Party to take any action.

14. Limitation of Liability

IN NO EVENT SHALL DFH BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE TERMS OR THE PRODUCTS TO BE PROVIDED UNDER THE TERMS, EVEN IF DFH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. DFH’S LIABILITY FOR MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THE AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID TO DFH FOR PRODUCTS SOLD UNDER THE AGREEMENT IN THE SIX (6) MONTH ROLLING PERIOD IMMEDIATELY PRECEDING THE CLAIM OR $50,000, WHICHEVER IS LESS. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE LEGAL THEORY OF LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY WHATSOEVER.

15. Jurisdiction; Venue

These Terms of Sale shall be governed in all respects by the substantive laws of the United States of America and the State of Florida without regard conflict of law principles. You and DFH agree that the sole and exclusive venue and jurisdiction for disputes arising from this Agreement shall be in the U.S. District Court for the Middle District of Florida or the state courts of Florida located in Flagler County, Florida, and You and DFH hereby submit to the jurisdiction of such courts; provided, however, that equitable relief may be sought in any court having proper jurisdiction. As to disputes arising from these Terms of Sale, this Section 15 prevails over the jurisdiction, venue, and other dispute resolution provisions in any other agreement between You and DFH. If and only if DFH litigates a dispute arising from these Terms of Sale, DFH may, at its option, join in such action any claims arising from any other agreement between DFH and You, notwithstanding that bringing such claims in that context might otherwise violate dispute resolution procedures set forth in the other agreements. Such action may proceed even if all the claims arising from these Terms of Sale are dismissed, settled, or otherwise resolved, leaving only the claims that arise from the other agreements.

16. Force Majeure

(k) Any delay or failure of DFH to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused by an event beyond DFH’s control, without DFH’s fault or negligence, and that by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, civil unrest, epidemics or pandemics, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power, internet connectivity, or transportation facilities).

17. Assignment

Neither Party may assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of the other Party, except DFH may do so in the event of a transaction resulting in a change in controlling ownership of the company or resulting in a sale of all or substantially all of its assets or in the event of a corporate reorganization. The Terms are binding on and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.

18. Modification

DFH shall have the right, in DFH’s sole discretion, to modify the Agreement from time to time, and the modified terms become effective on posting and acceptance by You. Otherwise, the Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of each Party. DFH may restrict Your access to purchase Products unless You agrees to the latest version of the Agreement.

19. Waiver

No waiver by any Party of any of the provisions of the Agreement or such Party’s rights or remedies hereunder shall be effective unless set forth in writing and signed by the Party so waiving.

20. Notice

You agree that DFH may give You notices required by the Agreement (each a “Notice”) or otherwise respond to You at the address and/or email address DFH has on file for You or in any other manner reasonably elected by DFH. All Notices from You to DFH must be in writing addressed to: (i) legal@designsforhealth.com; (ii) or “Designs for Health, Inc., 14 Commerce Blvd., Palm Coast, FL 32164, Attn: Legal Department; or (iii) any other address DFH designates in writing under this Section. All Notices from You shall be delivered by email, personal delivery, or nationally recognized overnight courier. Unless Notice from You is by email, it must be return receipt requested and postage prepaid. Except as otherwise provided in the Agreement, a Notice is effective only if the Party giving the Notice has complied with the requirements of this Section. Notice received after 5:30 p.m. on any business day will be deemed received the following business day.

21. Miscellaneous

(a) The Parties are independent contractors and nothing in the Agreement shall be deemed or constructed as creating an agency or employment relationship between DFH and You. (b) Neither Party, by virtue of the Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. (c) In the event any provision in the Agreement is for any reason held to be invalid or unenforceable in any respect under the laws of any jurisdiction, such invalidity or unenforceability shall not affect any other provision of the Agreement, and the Agreement shall be construed as if such invalid or unenforceable provision had not been contained herein. (d) The Agreement, together with all other agreements, schedules, or exhibits incorporated by reference into the Agreement, or attached to the Agreement, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior oral or written agreements between the Parties on the same subject matter. (e) These Terms of Sale survive: (i) the fulfillment of any Order, and (ii) the expiration, termination, or other ending of any agreement into which these Terms of Sale are incorporated or otherwise made a part.