PRODUCT RESELLER TERMS AND CONDITIONS
Biomic Sciences, LLC (“Biomic”, “we”, “us”, “our”) has implemented the following Authorized Reseller Terms and Conditions, which apply to Resellers of Restore and other Biomic Sciences, LLC products (the “Products”). A Reseller is defined as a person or entity who resell the Products online, through retail outlets, clinical, therapeutic or alternative practice, medical practice or other approved method of resale as approved by Biomic (“Reseller”, “you”, “your”). Unless and until such status is otherwise revoked by Biomic, in its sole discretion, Reseller is considered an Authorized Reseller hereunder.
RESALES THROUGH ANY THIRD-PARTY WEBSITE ARE PROHIBITED.
In order to become a Reseller, you must complete the Reseller Application which can be located at www.Restore4Life.com and agree to these terms and conditions as indicated below.
Biomic reserves the right in its sole discretion to approve or disapprove any Reseller Application and to terminate a Reseller’s status as an Authorized Reseller for any reason, with or without notice. Upon termination, Reseller will immediately cease any and all further purchase, resale or other activity involving Biomic or the Products as more fully set forth in these Reseller Terms and Conditions (“Terms and Conditions”).
Biomic grants Reseller a non-exclusive, non-transferable right to purchase the Products for resale to individual end-users (“End-Users”). Reseller shall sell Products only to end-users of the Products and may not sell or transfer any of the Products to any person or entity for marketing, re-sale or distribution. This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other Resellers, or any other person a Reseller knows or has reason to know intends to re-sell the Products. Only Authorized Resellers may resell the Product. Biomic, in its sole discretion, may sell the Products to any other third party, including resellers, retailers, and End Users in and outside the continental United States (“Territory”). Reseller is an independent contractor of Biomic and shall not be deemed an agent, employee, franchise or partner of Biomic.
- Terms of Sale
- Resellers must order Product using the Biomic online Reseller Portal which can be accessed through www.restore4life.com. The Reseller Portal, and these Terms and Conditions, may be amended by Biomic from time to time in our sole discretion. Biomic may accept or reject any order placed by a Reseller, in whole or in part, for any reason and reserves the right, at any time, in our sole discretion, and without obligation, liability or notice to Reseller, to discontinue the sale of or limit the production of the Products, to terminate or limit deliveries of the Products or to otherwise change, modify, improve, or change the prices of the Products. Biomic may add new or delete existing products from our inventory or product lines without any obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications.
- By placing an order on the Reseller Portal, Reseller makes an offer to purchase Products under these Terms and Conditions, including the terms and conditions found on the Reseller Portal, such as minimum purchase or other requirements.
- Reseller shall receive Products within approximately one (1) week after confirmation of order, unless otherwise notified by Biomic. Biomic will communicate to Reseller if any orders are delayed due to backorders, production or manufacturing issues or other shipping delays that are known to Biomic. Any time quoted for delivery is an estimate only and international deliveries may incur additional delays; provided, however, Biomic shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Biomic is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery including delays due to customs or inspections for international orders.
- Shipping Charges and Minimum Orders. For domestic orders, Reseller must order a minimum of $250 of Product per order to obtain free shipping. Otherwise, shipping costs are the responsibility of the Reseller. For all international shipments, (a) Reseller is responsible for any shipping, customs/duties, and taxes, (b) Reseller may be required to arrange shipping and get approval from Biomic for the timing of the pick-up from Biomic’s facility located at 4351 Seminole Trail, Charlottesville, VA 22911.
- Title and Risk of Loss. For domestic shipments, title and risk of loss to Product shipped to Reseller by Biomic passes to Reseller on receipt of Product by Reseller. For international shipments, title and risk of loss passes to Reseller when the Product leaves Biomic’s warehouse, including while Product is at customs.
- Reseller will receive Product orders at the Delivery Address found in your Reseller Application.
- Reseller must inspect the Products within twenty-four hours after delivery of Products and refuse or reject any Products that do not conform to the order as placed on the Reseller Portal or any Products that have been damaged in shipping (“Non-Conforming Products”). Unless Reseller refuses or rejects the Non-Conforming Products within twenty- four hours after delivery, Reseller is deemed to have accepted the Products. Reseller, at Biomic’s expense, shall ship all Non-Conforming Products to Biomic Sciences, LLC 4351 Seminole Trail, Charlottesville, Virginia 22911. Biomic, in its sole discretion, will either replace Non-Conforming Products with new Products or refund Reseller the cost of the Non-Conforming Products. In the event excess Products are sent to Reseller, Reseller will ship all excess Products to Biomic at the address above or Reseller may purchase Excess Product. The remedies set forth in this section II.g. are the exclusive remedies for Non-Conforming or excess Product.
III. Policies and Procedures. Reseller shall market, promote and resell the Products consistent with these Terms and Conditions and must observe all policies, procedures, directions, and guidelines (“Policies and Procedures”) provided by Biomic to Reseller in relation to the resale of the Products. You should familiarize yourself with the applicable Policies and Procedures set forth in these Terms and Conditions including those related to the use of Biomic’s trademarks and the resale of the Products as established by Biomic in its sole discretion. Biomic reserves the right to change, modify or alter our Policies and Procedures at any time.
- Reseller Prohibitions and Obligations.
Reseller shall not:
- Make any representations, warranties, guarantees, indemnities, similar claims, or other commitments on behalf of Biomic;
- Engage in any unfair, competitive, misleading, or deceptive practices respecting Biomic’s trademarks or other intellectual property;
- Sell any Biomic branded products other than the Products;
- Sell, either directly or indirectly, or assign or transfer, any Products to any person or entity (either domestic or International) when you know or have reason to suspect that such person or entity may resell, ship or distribute any or all of the Products to a third party, including third party reseller or distributor;
- Market or sell the Products on or through any publicly accessible website, including, without limitation, any third-party marketplace website including but not limited to Amazon, eBay and other third-party marketplaces. Biomic is the only authorized party to sell or advertise the Products on third-party marketplaces.
- Directly or indirectly through third parties, selling or distributing the Products through multi-level marketing, pyramid selling, network marketing, referral marketing, or similar selling practices.
- Resell Products to other Resellers
- Promote the Products using any other materials other than the promotional information and material that we have created and provided to you;
- Except as explicitly authorized in this Agreement or in a separate written agreement with Supplier, Reseller may not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Products it sells to End Users.
- Tamper, open, repackage (including the separation of bundled Product or combining Product with other brands or similar products), re-label with a Reseller private label or other label, or otherwise alter the packaging of the Products or their label, UPC code, trademarks, logos or designs on the Products.
- Advertise, market or display the Products together with other products in a manner that would create the impression that the non-Biomic products are made by, endorsed by, or associated with Biomic.
- Conduct its business in a reasonable, lawful, and ethical manner at all times, whether engaged in the sale of the Products or other products and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time nor make any warranties or representations concerning the Products.
- In any and all contact between Reseller and any End User, identify to the End User Reseller's full legal name, trade name, or both plus current and accurate contact information (name, address, phone, email) of the Reseller
- Promptly let us know of any complaint or adverse claim about any Product or its use of which you become aware;
- Upon our request, provide us with a current and accurate list of all of your retail selling locations or outlets as well as any online sites if you are an Online Reseller as identified in your Reseller Application;
- Maintain adequate books, records and accounts of transactions under these Terms and Conditions and upon reasonable request, permit full examination by us, onsite or otherwise, for a period of twelve (12) months after termination of your Authorized Reseller status.
- Obtain, maintain and keep certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement, including government approval, if required.
- Comply with all applicable laws, regulations, and policies related to the advertising, sale, and marketing of the Products.
- Store Products only according to instructions on the label.
- Cooperate with Biomic with respect to any Product recall or other consumer safety information dissemination effort.
- If applicable, disclose any and all ownership in other affiliated websites of any type including partners, distributors, or other third parties linked to your site.
- Notify us of any website changes (name or URL), launches, or storefront name changes prior to implementation and ensure that all records maintained by us are accurate and up to date.
(l) Comply with all laws and regulations applicable to the sale and advertisement of the Products where you advertise and sell Products.
- Intellectual Property.
You acknowledge and agree that we own all the proprietary rights whatsoever in and to the Biomic brands, including, without limitation, Restore products, names, logos, trademarks, service marks, manufacturing images, trade dress, copyrights, photos, images or descriptions, and other intellectual property related to the Products and Biomic or displayed on the Biomic website, packaging, information sheets, and other marketing materials (the “BiomicIP”).
You are granted a limited, non-exclusive, non-transferable, revocable license to use the BiomicIP solely for purposes of marketing and selling the Products. Reseller’s use of the BiomicIP shall be in conformance with any guidelines specified by Biomic, including those contained within our Terms of Service, located at www.Restore4Life.com. Any BiomicIP used by you must be current and obtained from us directly and cannot be pulled from our website or other resource. Such information may be updated and amended at any time by Biomic in its sole discretion. This license will cease upon termination of Reseller’s status as a Reseller. We reserve the right to review and approve, in our discretion, your use or intended use of the BiomicIP at any time, without limitation. All goodwill arising from your use of the BiomicIP shall inure solely to our benefit.
Any unauthorized use of the BiomicIP is strictly prohibited.
- MAP Policy. We ask that all Resellers are familiar with our Minimum Advertising Price (“MAP”) Policy which you can obtain by contacting your sales representative. You are free to decide whether to follow this policy. This policy does not constitute an agreement between you and Biomic, and Biomic is not seeking a response from you.
VII. Effect of Termination. Biomic reserves the right to terminate your status as a Reseller at any time for any reason or for convenience, and with or without notice. On expiration, termination or revocation of your Authorized Reseller status, you must immediately (i) cease all display, advertising, promotion, and use of all of BiomicIP and shall not use, advertise, promote, or display any trademark, trade name, or product designation or any part thereof that is similar to or confusing with BiomicIP, Biomic or the Products; (ii) cease purchasing and selling the Products; (ii) cease acting in any manner that may reasonably give the impression that you are a Reseller of the Products are affiliated with us in any manner. Biomic reserves the right, but is not obligated to, purchase any remaining inventory of Product at the purchase price paid by Reseller, if we determine, in our sole discretion that such Product is in good and marketable condition.
VIII. Confidentiality. Biomic may make information about our business affairs, goods, services, pricing, programs and other proprietary or confidential information available to you as a Reseller; such information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential” constitutes our "Confidential Information". Confidential Information does not include information that, at the time of disclosure is or becomes generally available to and known by the public other than as a result of, directly or indirectly, your breach of these Terms and Conditions; is or becomes available to you on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; was known by or in your possession before being disclosed by us.
You shall protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as you would protect your own Confidential but in no event with less than a commercially reasonable degree of care; you shall not use Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise your rights or perform its obligations hereunder; and you shall not disclose any such Confidential Information to any third-party except your representatives who must know the Confidential Information to exercise your rights or perform your obligations hereunder. Reseller is responsible for any breach caused by any of its employees, personnel or other representatives. This Confidentiality provision shall survive termination or expiration of your Authorized Reseller status for a period of one (1) year after such termination or expiration.
- Representations and Warranties. Reseller represents and warrants to Biomic that it has the full right, power and authority to agree and be bound by these Terms and Conditions, to perform your obligations hereunder, and when executed, this Terms and Conditions will be the legal, valid and binding obligation of Reseller, enforceable against Reseller in accordance with its terms.
- Liability. Our liability under the product warranty located on the Product label (“Warranty”) is the replacement or refund of the Products purchased under the warranty. You shall not replace any Product, in whole or in part, by or through any third party. THIS SECTION SETS FORTH YOUR SOLE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE PRODUCTS. Warranties Disclaimer; Non-reliance. THE PRODUCTS ARE SOLD AS IS AND ON AN AVAILABLE BASIS. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES DESCRIBED ABOVE (A) BIOMIC HAS NOT MADE AND DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY US OR ANY OTHER PERSON ON OUR BEHALF, EXCEPT AS SPECIFICALLY DESCRIBED IN HEREIN.
- INDEMNIFICATION AND LIMITATION OF LIABILITY. You shall indemnify, hold harmless, and defend Biomic against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by us (collectively, "Losses"), arising out of any service provided hereunder, breach or non-fulfillment of any representation, warranty, or covenant under these Terms and Conditions by you; relating to any negligent act or omission by you in connection with the performance of your obligations hereunder; relating to any bodily injury, death of any person or damage to real or tangible personal property caused by your negligent acts or omissions; relating to a purchase of Product by any person or entity purchasing directly or indirectly through Reseller and not directly relating to a claim of Warranty breach; relating to any failure by Reseller to comply with applicable laws and regulations; and any allegations that the Reseller breached its agreement with a third party as a result of or in connection with the services hereunder.
XII. No Liability for Consequential or Indirect Damages IN NO EVENT IS BIOMIC, LLC, OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
XIII. Insurance. Reseller shall, at its own expense, maintain, and carry in full force and effect commercial general liability (including product liability) in a sum no less than $1Million/occurrence with $2Million aggregate with an insurance company with an A.M. Best rating of A or better. Reseller shall provide Biomic with a certificate of insurance from Reseller’s insurer evidencing the insurance coverage and a waiver of subrogation. The certificate of insurance shall name Biomic Sciences, LLC as an additional insured and Reseller shall provide us with thirty (30) days advance notice in the event of a cancellation or material change in its insurance policy.
- Arbitration. Reseller agrees to give up any rights to litigate claims in court or before a jury or to participate in any class action or representative action with respect to any claims against Biomic. Other rights you may have had by going to court may also be unavailable or limited in arbitration.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF THE PRODUCTS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
You agree to an arbitration on an individual basis. In any dispute you will not be ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Entire Agreement. These Terms and Conditions, together with the Reseller Application and including any related exhibits, schedules, attachments, and appendices constitutes the sole and entire agreement of Biomic and Reseller with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications (“Notice”) must be in writing and addressed to Biomic Sciences, LLC at 4351 Seminole Trail, Charlottesville, VA 22911; to Reseller at the address and contact information on the Reseller Application. Unless otherwise agreed, Notice must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid. For the purposes of order confirmation or other questions regarding orders placed on the Reseller Portal, email is sufficient. Notice is effective on receipt by the receiving party.
- Headings in these Terms and Conditions are for reference only and don’t affect its interpretation.
- Severability. If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Modifications. Biomic reserves the right to update, amend, or modify these Terms and Conditions upon written or electronic notice to Reseller. Unless otherwise provided, such amendments will take effect immediately and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of BiomicIP, or use of any other information or materials provided by us to you, under the Terms and Conditions following notice will be deemed your acceptance of the amendments.
- Waiver. No waiver under these Terms and Conditions is effective unless it is in writing and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition hereunder or any act, omission, or course of dealing between the Parties constitutes a waiver.
- Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the Parties or otherwise except as provided herein. Reseller acknowledges and agrees that (a) a breach or threatened breach by Reseller of any of its obligations under this Agreement would give rise to irreparable harm to Supplier for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Reseller of any of these obligations, Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief.
- Assignment. Reseller may not assign any of its rights or delegate any of its obligations under this Agreement without our prior written consent. Biomic may assign any of our rights or delegate any of our obligations without your consent.
- Successors and Assigns. These Terms and Conditions are binding on and inure to the benefit of the Reseller and Biomic and their respective permitted successors and permitted assigns.
- Choice of Law. These Terms and Conditions and all matters arising out of or relating to it are governed by, and construed in accordance with, the Laws of the Commonwealth of Virginia, without regard to the conflict of laws provisions thereof.
- Force Majeure. Biomic shall not be deemed to be in breach of these Terms and Conditions or liable to Reseller in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond our control, including without limitation, fire, flood, terrorist threats or acts, riot or other civil unrest, war, invasion, hostilities, strikes or other labor disputes, embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices from regular sources or on account of shortages thereof, delays or failures of any of our suppliers to deliver, acts of God or of a public enemy, the effect of any existing or future laws, acts or regulation of any applicable federal, state or local government, or any other commercial impracticability.
- Contact Information – Reseller. You agree to maintain accurate and up-to-date company information and to promptly notify us of any change to your telephone number, mailing address, or email address.
XII. Terms and Conditions for International Orders
Due to customs and export or import restrictions, the Products may not be allowed for importation or sale in countries outside the United States or countries to which you export or import. Other countries may impose duties, tariffs or other charges on such shipments or imports. As a result, we may not be able to fulfill an order for Product. You (and not Biomic) remain solely responsible for determining if Products that you order can be lawfully imported into and sold by you in a foreign country.
Each Reseller is solely responsible for ensuring that resale of the Products complies with the applicable laws, rules, regulations and orders in your country, territory, or jurisdiction in which you are selling the Products. Reseller shall be solely responsible for complying with any and all import and export control laws and regulations of the United States and any other country or jurisdiction into which it has been permitted to distribute the Products. You are also responsible for and shall pay all applicable taxes, fees, licenses, penalties or other costs of any kind which may become due with regard to the resale of the Products.
Resellers are responsible for Products once their order has shipped including those that may be rejected, confiscated or destroyed by customs officials. Biomic will not accept returns or provide refunds on Product due to problems relating to not following customs regulations or any export rule, law, regulation or order.