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Pure Encapsulations Authorized Reseller Policy

PURE ENCAPSULATIONS, INC. AUTHORIZED RESELLER POLICY
(Effective November 13, 2017)

This Pure Encapsulations, Inc. Authorized Reseller Policy (the “Reseller Policy”) applies to all Authorized Resellers (“Resellers”) of Pure Encapsulations, Inc. (“PE”) products (the “Products”) in the United States.  The Policy is effective immediately.  By purchasing Products from an Authorized PE Distributor for retail sale, you (“Reseller”) agree to adhere to the following terms and conditions.

1.    Manner of Sale.  Reseller is authorized to offer Products purchased from an Authorized PE Distributor for retail sale in accordance with the terms herein.  Sales in violation of these terms are strictly prohibited and may result in PE’s immediate revocation of Reseller’s status as an Authorized Reseller, in addition to other remedies.  Products sold to unauthorized persons or through unauthorized channels, including unauthorized Internet sites, shall not be eligible for certain PE promotions, services, and/or benefits, including, unless prohibited by law, coverage under any PE Product guarantees.
 
1.1    Reseller shall sell Products solely to end users of the Products.  Reseller shall not sell to anyone a quantity of the Products greater than that generally purchased by an individual for personal use.

1.2    Reseller shall not sell, ship, invoice, or promote the Products outside the United States without obtaining PE’s prior written consent.

1.3    Reseller shall not sell or transfer any of the Products to any person or entity for re-sale without the prior written consent of PE.  This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other resellers, or any other person or entity Reseller knows or has reason to know intends to re-sell the Products.  

1.4    Reseller shall not offer Products for sale or fulfill sales of Products through any website without the prior written consent of PE, which is granted solely through execution by PE of the Authorized Online Seller Agreement.  Execution by PE of the Authorized Online Seller Agreement constitutes the only authorized means of providing consent to sell Products online.  No PE employee or agent may authorize online sales through oral statements, other written agreement, or by any other means.  Selling on third-party marketplace sites, including eBay, Walmart Marketplace, Sears Marketplace, and Jet, or through drop-ship accounts (e.g. Rakuten, Newegg, Overstock), classified sites (e.g. Craigslist, Facebook Marketplace), or social media is strictly prohibited.  PE maintains an agreement with one exclusive Amazon.com retailer.  Therefore, the Products may not be advertised or sold on Amazon.com or any of its affiliates by anyone except this retailer.  Any Reseller that violates this exclusive agreement is subject to immediate and permanent suspension of purchasing privileges.
 
2.    Product Inspection.  Reseller shall inspect Products upon receipt and during storage for damage, defect, evidence of tampering, or other non-conformance.  Reseller must also confirm that product seals have not been broken.  If any defect is identified, Reseller must not offer the Product for sale and must report the defect to PE at 800-753-2277.  Furthermore, Reseller shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from inventory.  Reseller shall not sell expired Products.

3.    Product Storage and Handling.  Reseller shall store the Products in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional storage guidelines specified by PE.  

4.    Alterations Prohibited.  Reseller shall sell Products in their original packaging, with all seals intact.  Relabeling, repackaging (including the separation of bundled products or the bundling of products), and other alterations to the Products or their packaging is prohibited.  Reseller shall not tamper with, deface, or otherwise alter serial numbers, lot or batch codes, or other identifying information on Products or packaging.  Removing, translating, or modifying the contents of any label or literature on or accompanying the Products is also prohibited.

5.    Recall and Consumer Safety.  To ensure the safety and well-being of the end users of the Products, Reseller shall communicate all safety information to consumers and cooperate with PE with respect to any Product recall.

6.    Customer Service.  Reseller must be able to accurately describe, demonstrate, and sell each Product kept in inventory and be able to advise patients and/or clients on how to use the Products safely and properly.  Reseller must be available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly.  Resellers must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of PE.

7.    Consumer Confusion.  Resellers are prohibited from advertising, marketing, displaying, or demonstrating non-Pure Encapsulations products together with PE Products in a manner that would create the impression that the non-Pure Encapsulations products are made by, endorsed by, or associated with PE.  

8.    Compliance with Applicable Laws.  Resellers shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Products.  This requirement includes any and all consumer safety- or consumer protection-related laws, including, but not limited to California Proposition 65.  
 
9.    Use of Pure Encapsulations Intellectual Property.  Reseller is granted a limited, non-exclusive, non-transferable, revocable license to use the PE brand, name, logo, trademarks, service marks, trade dress, patents, copyrights, and other intellectual property related to the Products (the “PE Trademarks”) solely for purposes of marketing and selling the Products as set forth herein, and this license shall cease immediately upon termination of a Reseller’s status as an Authorized Reseller.  PE may review, approve, and/or reject, in its sole discretion, a Reseller’s use of the PE Trademarks at any time.  All goodwill arising from Reseller’s use of the PE Trademarks shall inure solely to the benefit of PE.  

10.    Termination.  If a Reseller violates any provision of the Reseller Policy, PE reserves the right to terminate Reseller’s status as an Authorized Reseller in addition to all other available remedies.  Upon termination of Reseller’s status, Reseller shall immediately cease selling the Products, representing itself as an Authorized Reseller of PE Products, and all use of anything that may give the impression that Reseller is an Authorized Reseller of PE Products or has any affiliation whatsoever with PE.

11.    Availability of Injunctive Relief.  If there is a breach or threatened breach of paragraphs 1 through 10 of this Reseller Policy, it is agreed and understood that PE shall have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in this Reseller Policy of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Reseller Policy.  No failure, refusal, neglect, delay, waiver, forbearance, or omission by PE to exercise any right(s) herein or to insist upon full compliance by Reseller with Reseller’s obligations herein shall constitute a waiver of any provision or otherwise limit PE’s right to fully enforce any or all provisions and parts thereof.

12.    Modification.  PE reserves the right to update, amend, or modify this Reseller Policy at any time.  

13.    WARRANTY DISCLAIMER.  PE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE OR OTHERWISE.  PE SHALL NOT BE LIABLE TO RESELLER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS.

14.    Miscellaneous.  This Reseller Policy and any dispute arising under it shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules.  In the event of a dispute over the terms or performance under the Reseller Policy, Reseller expressly submits to personal jurisdiction and venue in the federal or state courts in Middlesex County, Massachusetts.  If any provision of the Reseller Policy is held contrary to law, the remaining provisions shall remain valid.

15.    PE has a unilateral Minimum Advertised Price Policy (“MAP Policy”) that applies to all resellers of PE Products located within the United States.  This paragraph is intended to inform you of the MAP Policy.  It does not constitute consideration for any agreement between you and PE, and does not separately constitute an agreement between you and PE regarding the prices you will charge your customers for the Products.  PE does not seek, nor will it accept, from Reseller any assurance of compliance with the MAP Policy.

 

MODIFICATION TO
PURE ENCAPSULATIONS, INC. AUTHORIZED ONLINE RESELLER AGREEMENT

 

This Modification to Pure Encapsulations, Inc. Authorized Online Reseller Agreement (the “Modification”) modifies and amends the Pure Encapsulations, Inc. Authorized Online Reseller Agreement (the “Agreement”) between you and Pure Encapsulations, LLC (“PE”).  This Modification is effective as of the date PE provides you with notice of this Modification (the “Modification Effective Date”).  Except as modified or amended pursuant to this Modification, the Agreement remains unchanged and in full force and effect as written.  Unless otherwise defined herein, capitalized terms herein shall have the meanings ascribed to them in the Agreement.

 

  1. Updated Terms and Products.  As of the Modification Effective Date, the definitions included in the Agreement for the following terms are modified as follows:

 

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  1. Update to Section 2 of the Agreement.  As of the Modification Effective Date, Section 2 of the Agreement will be replaced with the following:

 

2.             Your Website must be confined to the specific approved domain name(s).  You may not use any Atrium IP, nor any misspellings of any Atrium IP, in the construction of your domain name, including top-level domains and sub-domains, for any part of your Website.

 

  • You may not sell online anonymously.The full name, address, and telephone contact of your business should be conspicuously stated on the Website and must be included with any shipment of Products from the Website or in an order confirmation email delivered at the time of purchase.Your Website must not give the appearance that it is operated by PE or any third party.

 

  • The following copyright attribution must appear on any page of your Website where PE graphic material appears: Pure Encapsulations’ logo, text, graphics, and photo images are the property of Société des Produits Nestlé S.A. and are used with permission.  Copyright © 2021.

 

  • Nothing in this Agreement shall be interpreted as modifying the prohibition on the marketing and sale of Products on or through third-party marketplace sites (e.g., eBay, Amazon, Walmart Marketplace), drop-ship accounts (e.g., Rakuten, Newegg, Overstock), on classified sites (e.g., Craigslist, Facebook Marketplace), or social media or Internet forums.

 

  1. Update to Section 5 of the Agreement.  As of the Modification Effective Date, Section 5 of the Agreement will be replaced with the following:

 

5.             The license granted to you in the Terms is hereby amended to authorize use of the Atrium IP related to the Products on the Website, and subject to the additional quality controls contained herein.  You acknowledge that you own no right, title, or interest in any of the Atrium IP except as granted in the Terms or herein.  Your license to use the Atrium IP on the Website shall be revoked immediately upon termination of this Agreement.

 

  1. Update to Section 7 of the Agreement.  As of the Modification Effective Date, Section 7 of the Agreement will be replaced with the following:

 

7.             In your sales of Products from your Website, you acknowledge and agree that you are responsible for all fulfillment to your individual customers, any applicable taxes associated with such individuals’ purchases of Products, and any returns of Products.  Unless separately authorized in writing by PE, you may not use any third-party fulfillment service to store inventory or fulfill orders for the Products.  Under no circumstances shall you fulfill orders in any way that results in the shipped Product coming from stock other than yours.

 

  1. Update to Section 8 of the Agreement.  As of the Modification Effective Date, Section 8 of the Agreement will be replaced with the following:

 

8.             In your marketing and descriptions at your Website, all Product images and descriptions must be supplied by or authorized by PE, accurate, and up-to-date.  You must remove outdated Product images and descriptions and must not advertise Products you do not hold in inventory.  You may only represent Products on web pages listing only PE Products.  The Website must have a mechanism for receiving customer feedback and you agree to use reasonable efforts to address all customer feedback and inquiries received in a timely manner.  You agree to provide copies of any information related to customer feedback (including any responses to customers) to PE for review upon request.  You agree to cooperate with PE in the investigation of any negative online review associated with your sale of the Products and to use reasonable efforts to resolve any such reviews.  You shall maintain all records related to customer feedback for a period of one year following the creation or submission of such a record, to the extent legally permitted.  Nothing in this paragraph shall be construed to require you to disclose identifying information about your customers to PE.

 

  1. Update to Section 10 of the Agreement.  As of the Modification Effective Date, Section 10 of the Agreement will be replaced with the following:

 

10.  You shall operate the Website in compliance with all applicable privacy, accessibility, and data security laws, regulations and industry standards.

 

  1. Update to Section 11 of the Agreement.  As of the Modification Effective Date, Section 11 of the Agreement will be replaced with the following:

 

11.          On termination of your status as an Authorized Reseller, you must immediately cease all marketing and sales of Products at your Website and your authorization to use Atrium IP as set forth in paragraph 5 is revoked.

 

  1. Addition of Section 12 to the Agreement.  As of the Modification Effective Date, a new Section 12 of the Agreement will be added as follows:

 

12.          If there is a breach or threatened breach of this Agreement, it is understood that PE will have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement. No failure, refusal, neglect, delay, waiver, forbearance, or omission by PE to exercise any right(s) herein or to insist upon full compliance by you with your obligations herein shall constitute a waiver of any provision herein or otherwise limit PE’s right to fully enforce any or all provisions and parts thereof.

 

  1. Addition of Section 13 to the Agreement.  As of the Modification Effective Date, a new Section 13 of the Agreement will be added as follows:

 

13.          The Agreement and any dispute arising under the Agreement shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules.  In the event of a dispute over the terms or performance of the Agreement, you expressly submit to personal jurisdiction and venue in the federal or state courts in Middlesex County, Massachusetts.  This Agreement may not be assigned or transferred by Reseller without the prior written consent of PE.  In the event of a breach or threatened breach of this Agreement by Reseller, Reseller is responsible for PE’s attorneys’ fees and costs associated with any lawsuit or other action necessary to obtain appropriate relief.

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