Authorized Distributor PolicyUpdated 5 months ago
Dear Distributor, At Seeking Health, LLC (“Seeking Health”), we are committed to you and your customers—the distributors and resellers that help our company satisfy customer needs and deliver best-in-class health supplements. As you know, in order to protect our brand and the integrity of our authorized distribution channels, Seeking Health announced and implemented an Authorized Reseller Program, effective October 1, 2020. Please be advised that Seeking Health is updating the terms of its Authorized Reseller Program, effective August 15, 2022. Your obligations under our Authorized Reseller Program are outlined in the attached Seeking Health, LLC Authorized Distributor Policy. Please note that you are expected to comply with the terms of the enclosed Distributor Policy to remain an “Authorized Distributor” of Seeking Health products. The key features of the Distributor Policy are noted below: Where and To Whom You May Sell Our Products: Pursuant to the Authorized Distributor Policy, you are permitted to sell Seeking Health products only to customers who are classified as “Authorized Resellers.” You must verify your reseller customers have current a licensure/certification as a healthcare professional in good standing, or if the reseller customer is not such a health care professional operating under a licensure or certification as mentioned in the policy, then you must obtain pre-approval from Seeking Health before selling to such reseller customers. You are prohibited from selling Seeking Health products to end users without the prior written consent of Seeking Health. To become and remain an Authorized Reseller, your reseller customers will be required to abide by the attached Seeking Health, LLC Authorized Reseller Policy. Limitations on Online Sales: Please also note that the Authorized Distributor Policy prohibits you from selling Seeking Health products on any publicly accessible website or other online platform without Seeking Health’s prior written consent. You may use an online order portal to facilitate orders from Authorized Resellers, so long as that portal requires Authorized Resellers to obtain an account and log in to view product listings and pricing information. This rule will be strictly enforced. Ensuring Product Care and Customer Service: To ensure that the end user consumers who purchase our products have the best experience possible, the Authorized Distributor Policy provides certain steps that you must take to maintain the quality of our Products. The Authorized Distributor Policy also outlines our expectations for the service you must provide to your customers. California Proposition 65 Compliance: Please be advised that certain Seeking Health products require the Prop 65 warning when they are sold to customers located in the state of California. It is your responsibility to ensure that all sales to California customers are conducted in compliance with Prop 65, as further described in the Authorized Distributor Policy. Additionally, the Authorized Distributor Policy requires that you forward the Authorized Reseller Policy and any other materials requested by Seeking Health to your customers. For your convenience, we have attached an Authorized Reseller Packet, which contains the documents that you are required to forward to your reseller customers at this time. In particular, the Authorized Reseller Packet contains: (1) the Authorized Reseller Policy and (2) a letter to your reseller customers describing the Authorized Reseller Policy and the purposes of our Authorized Reseller Program. We ask that you forward a copy of the attached Authorized Reseller Packet to each of your reseller customers as soon as possible and thank you in advance for your cooperation and assistance. Thank you for your careful attention to the attached documents and for your continued support of the Seeking Health brand. Sincerely, Seeking Health, LLC
SEEKING HEALTH, LLC AUTHORIZED DISTRIBUTOR POLICY Effective Date: October 1, 2020; Last Updated: August 15, 2022 This Seeking Health, LLC Authorized Distributor Policy (“Distributor Policy”) is issued by Seeking Health, LLC (“Seeking Health”) and applies to distributors of Seeking Health products (“Product(s)”) in the United States of America. This Distributor Policy supplements any then-current wholesaler or distribution agreement between you and Seeking Health. By purchasing Products from Seeking Health for distribution to Authorized Resellers (as hereinafter defined), you (“Distributor,” “you” or “your”) agree to adhere to the following terms and conditions. Until such status is otherwise revoked by Seeking Health in Seeking Health’s sole and absolute discretion, Distributor shall be considered an “Authorized Distributor.” Seeking Health may review Distributor’s activities for compliance with this Distributor Policy, and Distributor agrees to cooperate with any such investigation, including, but not limited to, permitting inspection of Distributor’s facilities and records related to the sale of the Products. 1. Authorized Customers. Distributor is authorized to sell Products purchased from Seeking Health to Authorized Resellers. Distributor shall not sell Products to End Users without Seeking Health’s prior written consent. (a) An “Authorized Reseller” is an individual or business entity that: (i) purchases Products from an Authorized Distributor and resells the Products as part of a commercial enterprise; (ii) either: (1) if an individual, is a healthcare professional with a licensure/certification as a healthcare professional in good standing (“HCP”), and if a business entity, has an HCP as an owner, member, operator, manager, director, or similar authority involved with the sales of the Products, or (2) is pre-approved by Seeking Health, such as in the case where the individual or business entity does not have such a licensure or certification as mentioned above; (iii) has received and agrees to adhere to the Seeking Health, LLC Authorized Reseller Policy (“Authorized Reseller Policy”); and (iv) has not had its Authorized Reseller status revoked by Seeking Health. (b) An “End User” is any purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to any third party. (c) If any customer or prospective customer of Distributor is not yet an Authorized Reseller, Distributor shall immediately provide the Authorized Reseller Policy to such customer/prospective customer. If such customer/prospective customer accepts the terms in the Authorized Reseller Policy, Distributor may thereafter sell Products to such customer, which shall thereafter be an Authorized Reseller unless and until Seeking Health revokes such status. Authorized Resellers are determined by Seeking Health in its sole discretion. (d) Distributor shall distribute policies, updates to policies, product information, educational materials, and other information to its Authorized Reseller customers as requested by Seeking Health from time to time. (e) Distributor shall cease or suspend sales to any customer promptly upon request of Seeking Health. (f) Distributor shall not sell, ship, invoice, or promote the Products outside the United States of America or to anyone Distributor knows or has reason to know intends to ship the Products outside of the United States of America without Seeking Health’s prior written consent. (g) Notwithstanding Section 1(a), Distributor shall not sell Products to any entity that operates a third party marketplace website, including, but not limited to Amazon.com or Groupon.com. 2. Online Sales. Unless as provided in this Section, online sales of the Products are strictly prohibited, including but not limited to, sales through third party marketplace websites (such as Amazon, eBay, and Walmart Marketplace) without Seeking Health’s prior written consent
(a) Distributor is authorized to offer for sale and sell the (i) Products to Authorized Resellers only through an Online Sales Portal. An “Online Sales Portal” is a website or mobile application that: (i) is operated by Distributor in Distributor’s legal name or registered fictitious name; (ii) conspicuously states Distributor’s legal name or registered fictitious name, mailing address, telephone number, and email address; (iii) does not give the appearance that it is operated by Seeking Health or any third party; (iv) is primarily used to facilitate orders from Authorized Resellers; (v) requires the prospective customer to register an account with the Distributor and log-in to that account to purchase the Products; and (vi) is operated in compliance with the terms and conditions set forth in the Online Sales Guidelines, attached hereto as Exhibit A, as Seeking Health may amend from time to time. (b) The terms of this Distributor Policy supersede any prior agreement between Seeking Health and Distributor regarding the sale of the Products online. Any authorization previously granted to Distributor by Seeking Health to sell the Products online is hereby revoked. 3. Sales Practices. Distributor shall conduct its business in a reasonable and ethical manner at all times and shall not engage in any deceptive, misleading, or unethical practices or advertising at any time. Distributor shall not make any warranties or representations concerning the Products except as expressly authorized by Seeking Health. Distributor shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale, and marketing of the Products, including environmental regulations and restrictions and territorial sales restriction applicable to the Products. Distributor shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Seeking Health. 4. Product Care, Customer Service, and Other Quality Controls. (a) Distributor shall comply with all instructions provided by Seeking Health regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels. Distributor shall store Products in a cool, dry place, away from direct sunlight. (b) Distributor shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled Products or the bundling of Products), and other alterations to Products or their packaging are not permitted. Distributor shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products. Distributor shall not tamper with, deface, or otherwise alter any serial number, UPC code, batch or lot code, or other identifying information on Products or their packaging. (c) Distributor shall not advertise or sell any Product that has been returned opened or repackaged. (d) Promptly upon receipt of the Products, Distributor shall inspect the Products and their packaging for damage, defect, broken seals, evidence of tampering, or other nonconformance (a “Defect”). If any Defect is identified, Distributor must not offer the Product for sale and must promptly report the Defect to Seeking Health at [email protected] or (800) 547-9812. (e) Distributor shall sell Products on a first-in-first-out (FIFO) basis. (f) Distributor shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from its inventory. Distributor shall not sell any Products that are expired or within 50 days of expiration. Distributor shall destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Seeking Health. (g) Distributor shall be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable guarantee or return policy. Distributor 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
(h) Distributor shall cooperate with Seeking Health with respect to any Product tracking systems that may be implemented from time to time. (i) Distributor shall cooperate with Seeking Health with respect to any Product recall or other consumer safety information dissemination efforts. (j) Distributor shall promptly report, to the extent permitted by applicable law, any customer complaint, adverse claim, and/or “serious adverse event” (as defined under 21 U.S.C. § 379aa-1(a)(2)) regarding its customers’ the use of Products of which it becomes aware to Seeking Health at [email protected] or (800) 547-9812. Distributor shall assist Seeking Health in investigating any such complaints, adverse claims, or “serious adverse event.” (k) Distributor shall cooperate with Seeking Health in the investigation and resolution of any quality or customer service issues related to Distributor’s sale of the Products, including disclosing information regarding Product sources, shipment, and handling. 5. Intellectual Property. Distributor acknowledges and agrees that Seeking Health, LLC owns all proprietary rights in and to the Seeking Health® brand, name, logo, trademarks, service marks, trade dress, copyrights, patents, and other intellectual property related to the Products (the “Seeking Health IP”). Distributor is granted a limited, nonexclusive, non-transferable, revocable license to use the Seeking Health IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Distributor’s status as an Authorized Distributor. All goodwill arising from Distributor’s use of the Seeking Health IP shall inure solely to the benefit of Seeking Health. Distributor’s use of the Seeking Health IP shall be in accordance with any guidelines that may be provided by Seeking Health from time to time and must be commercially reasonable as to the size, placement, and other manners of use. Seeking Health reserves the right to review and approve, in its sole discretion, Distributor’s use or intended use of the Seeking Health IP at any time, without limitation. Distributor shall not create, register, or use any domain name or any mobile application that contains any Seeking Health product name or any trademark owned by Seeking Health, nor a misspelling or confusingly similar variation of any Seeking Health product name or any trademark owned by Seeking Health. 6. Termination. If Distributor violates this Distributor Policy, Seeking Health reserves the right to terminate Distributor’s status as an Authorized Distributor with written or electronic notice. Upon termination of a Distributor’s status as an Authorized Distributor, Distributor shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Distributor is an Authorized Distributor of Seeking Health Products or has any affiliation whatsoever with Seeking Health; and (iii) using all Seeking Health IP. 7. Modification. Seeking Health reserves the right to update, amend, or modify this Distributor Policy at any time. Unless otherwise provided, such amendments will take effect immediately, and Distributor’s continued use, advertising, offering for sale, or sale of the Products, use of the Seeking Health IP, or use of any other information or materials provided by Seeking Health to Distributor will be deemed Distributor’s acceptance of the amendments. 8. Confidentiality. This Distributor Policy, and its attachments, if any, constitute confidential, proprietary information of Seeking Health and shall not be used for any purpose other than the authorized advertising and sale of the Products nor disclosed to any third party without the prior written consent of Seeking Health. 9. California Proposition 65 Compliance. California Proposition 65 Compliance. ("Prop 65") is a California law that requires companies and establishments to notify California residents about the presence of certain substances, even at extremely low levels, in consumer products. More information about Prop 65 can be found at https://oehha.ca.gov/proposition-65. Certain Seeking Health products require the Prop 65 warning when they are sold to customers located in the state of California. It is the Authorized Distributor’s responsibility to ensure that all sales to California customers are conducted in compliance with Prop 65. For in-person sales in California, the Prop 65 warning must be provided on a shelf sign or tag or an on-product warning (sticker or label). Additionally, for online sales to customers in California, Prop 65 requires that the warning (or a clearly marked hyperlink to the warning) be displayed to customers prior to completing the purchase of the product requiring the warning, in addition to having the warning on the product itself (on labeling or applied sticker). Prop 65 warnings for Seeking Health products will
be provided to you using one or more of the following methods: 1. On the product label; 2. On the product page on the website, below the description; or 3. On your packing slip. If you intend to resell the product to consumers in the state of California, you will need to provide the same type of warning to your customers in order to comply with Prop 65. We suggest that you consult with qualified legal counsel if you do business in the state of California, or if you sell products on the web to customers in the state of California, to ensure that your store, clinic, website, etc. are compliant with Prop 65. Authorized Distributors are required to comply with all laws and regulations that apply to them and their business.