These Designs for Health Terms of Sale – Wholesale (“Terms of Sale”) are a part of each “Private Label Agreement,” “RxDFHend Agreement,” “Designs for Sport Purchase Agreement,” and other agreement or document that refers to these Terms of Sale by hyperlink or otherwise (each, an “Other Agreement.”). Each Other Document supersedes these Terms of Sale to the extent the two (collectively, the “Agreement”) are inconsistent, except as otherwise provided in the Other Agreement. These Terms of Sale shall use “DFH” to refer to whichever of Designs for Health, Inc. or Designs for Health Ltd. is a party to the Agreement. The other Party shall be referred to as “You” or “Customer.” If the Other Agreement. is an Order Confirmation or does not expressly identify its Parties, then “DFH” and “You”/”Customer” refer to the issuer and addressee of the Other Agreement., respectively.
DFH may provide You access to an account (“Account”) to which You can login to purchase Products (defined in the Other Agreement). Only You and Your authorized agents (“Authorized Users”) may access the Account or use it for any purpose. You shall not share Account access credentials or permit Account use by any person or business entity (collectively, “Person”) except for Authorized Users. You are responsible for all Orders placed through the Account, whether by Authorized Users or others, and for compliance by all such Persons with the Agreement. You shall prevent unauthorized use of the Account and shall promptly notify DFH in writing if You know or have reason to believe that Your Account has been used by anyone other than an Authorized User. You agree to provide reasonable assistance to DFH upon request to identify unauthorized users of the Account and to take corrective actions that DFH deems appropriate.
A. Product Availability. DFH in its absolute discretion reserves the right at any time, with or without prior notice, to: (i) discontinue the availability of any Products, (ii) impose quantity limits on any Order, (iii) reject all or part of an Order, (iv) substitute Products without prior notice; and (v) change their formulas, routes of administration, or any other such details. Under no circumstances shall DFH have any liability to You for exercising these rights. 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.
B. How to Place Orders. Except as otherwise provided in the Agreement, You shall communicate Orders to DFH only: (i) in writing to such email address(es) or phone number(s) as DFH may designate from time to time in its absolute discretion; or (ii) by checking out with Products in Your online shopping cart from within a website that DFH in its sole discretion makes available to You for that purpose. Each such website through which You place an Order shall be referred to in this Agreement as the “Website” with respect to that Order, and the process by which such Order is placed through a given Website shall be referred to as “Checkout.”
C. Order Transaction Terms. 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 (which under all circumstances is nonbinding on DFH as further provided below); and (iv) the street address to which DFH will deliver the Products ordered (“Delivery Address”).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. For Orders You place on a Website, the Order Transaction Terms shall be as last shown upon Checkout.
D. Purchase Orders. To the extent You and DFH agree that You shall submit Orders of Products by purchase order (“Purchase Order”), then: (i) You shall issue a Purchase Order to DFH for the purchase of all such Products; (ii) DFH reserves the right not to ship Products until receipt of such a Purchase Order; and (iii) You shall ensure that the Order Transaction Terms are included in all Purchase Orders. If you fail to include any Order Transaction Terms in a Purchase Order, then DFH reserves the right to request that information from You or to make reasonable assumptions about what You intend the missing terms to be, which assumptions shall be legally binding to the same extent as if they were printed in the Purchase Order.
E. Deposit. DFH at any time reserves the right to require payment of a deposit of a nature determined by DFH in its absolute discretion.
F. Lapse. DFH may deem an Order lapsed if not accepted within such timeframe as DFH in its absolute discretion may determine.
G. Acceptance, Rejection. DFH may, in its sole discretion, accept or reject any Order, including without limitation Purchase Orders. 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 the Agreement. 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.
H. MOQs and Lead Times. All Orders are subject to DFH minimum order quantities and/or lead times currently in effect, which are subject to change on notice to You in DFH’s absolute discretion.
I. Primacy of These Terms of Sale. 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, other than the Order Transaction Terms, that are set forth in any Purchase Order, general terms and conditions, and/or other documentation related to the subject matter of these Terms of Sale, 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.
A. Delivery Address. DFH will deliver the Products to You at the location specified in Your Purchase Order, during Checkout, or provided by You in writing at the time of Your Order.
B. Delivery Date. When You purchase a Product from DFH, any shipping times DFH presents to You are estimates only. Actual delivery dates may vary. 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 after such event and its effects end or subside.
C. Shipping and Handling Costs. When You place an Order through a Website, You agree to pay any shipping and handling charges shown at the time You make a purchase. For all other Orders, DFH standard shipping and handling rates for the Product type apply, except as otherwise provided in this Agreement or to the extent DFH has a free shipping and/or handling program for qualified Orders in effect at the time You place the Order. DFH reserves the right to increase, decrease, add or eliminate shipping and handling charges from time to time.
D. Delivery Terms. Except as otherwise provided in the Agreement or as the Parties otherwise agree in writing: (i) DFH will arrange for one or more third-party couriers to receive the shipment and bring it to the Delivery Address; (ii) title transfers upon shipment from the the warehouse or other facility from which the Products ship; and (iii) risk of loss of the Products transfers from DFH to You when the shipment is received by the first courier en route to the Delivery Address. DFH shall determine the means and manner of shipment in its absolute discretion, including without limitation the terms of any contract(s) of carriage. You shall not obtain or direct shipment of a Product for export except to the extent an applicable Other Agreement expressly permits You to do so.
E. Partial Shipments. DFH may, in its absolute discretion, without liability or penalty, make partial shipments of Products to You. Each shipment will constitute a separate sale, and DFH reserves the right to require You to pay for each shipment of units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased. In addition to DFH’s other remedies under this Agreement, at law or in equity, Your failure to pay for any partial shipment when due shall excuse and release DFH for making further deliveries to You.
F. Back Orders. DFH may from time to time have Products that are temporarily unavailable and are on back order (“Back Ordered Items”). DFH shall notify Customer (including by email) of any Back Ordered Items as soon as practicable and, except as otherwise provided in the Other Agreement, ship them after they are back in stock.
G. Delivery Inspection. You are responsible for inspecting all Products You receive from DFH for any damage or other issues upon delivery. The quantity of any shipment of Products as recorded by DFH on dispatch from DFH’s place of business or other shipment point is conclusive evidence of the quantity received by Customer on delivery unless Customer provides evidence proving the contrary beyond a reasonable doubt. You are solely responsible for the proper and safe handling, preparation, storage, use and consumption of the Products following delivery. For food products, failure to follow safe food handling practices may increase the risk of foodborne illness.
H. Incomplete Delivery. If Products are missing from a delivery, then You shall notify DFH within five (5) days of receiving it, otherwise DFH shall not be liable. Any liability of DFH for non-delivery of Products shall be limited to delivering the accurate quantity of Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered, at DFH’s election.
A. Autoship, Defined. From time to time, DFH may offer You the opportunity to place one or more Orders on that automatically recurs (“Autoship”), subject to the terms and condition in this Section 5.
B. Benefits of Autoship.If Products are eligible for Autoship, then You may select how often You would like Your Product(s) delivered. All changes will apply to future orders, including for current subscriptions to Autoship.Some of the offer terms may change as You receive deliveries over time (for example, price, taxes, availability, shipping charges).
C. 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 Your 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.
D. 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 in Section 8. Autoship subscriptions are void where prohibited.
E. Autoship Pricing. The amount charged for an eligible Product will be less than or equal to the price of the itemon the applicable DFH website (including but not limited to: www.designsforhealth.com, www.shop.designsforhealth.com, www.fxchocolate.com,www.wellworld.designsforhealth.com, www.designsforhealth.ca, and www.wellworld.designsforhealth.ca) at the time Your order is processed. 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.
F. Autoship Payment. 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.
G. Autoship Renewal. 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 or through such other means as DFH may provide on the Website.
H. Reservation of Rights regarding Autoship. DFH shall determine in its absolute discretion which Products are eligible for Autoship with or without prior notice to You and 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.
A. Credit Agreements. If there is a separate, written, signed agreement between You and DFH expressly extending You credit with which to purchase Products (collectively, “Credit Agreement”), then such Credit Agreement supersedes any conflicting provisions in this Section 6. Note that not all Websites may be able to accommodate Ordering on Your credit terms, and if so DFH is not liable.
B. Payment. DFH has no obligation to ship Orders until the Order is paid in full. You shall put a credit card on file with DFH to be used for all amounts due and payable under the Agreement, except amounts due or payable for Orders that You place through a Website that accepts other forms of payment. 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 to proceed with Your Order. You shall update Your credit card information if You change credit cards or Your credit card expires.
C. Currency, Price Changes. All prices are in U.S. dollars or Canadian dollars as indicated, 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.
D. No Charge Reversals. If You are overcharged, then before reversing or disputing any charges to Your credit card or other payment method, You shall contact DFH so that DFH may resolve the situation in accordance with the Agreement.
E. Different Payment Terms Presented. Any payment terms presented to You for the purchase of Products or other services are deemed part of these Terms of Sale. 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.
F. Third-Party Payment Processors. 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 of Sale. 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.
G. Coupons and Promotional Codes. Coupons and promotional codes provided to You are for Your individual use only. You shall 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.
H. Sales Taxes. Unless You provide a valid sales tax exemption certificate or other valid basis for exemption to DFH, DFH will collect applicable sales tax and/or any other applicable taxes on Products shipped to the states, territories, provinces, or other jurisdictions for which DFH determines DFH has a duty to collect sales tax or other taxes. If an item is subject to tax, You agree that the amount of taxes shown at Checkout may be adjusted upon or after Your placement of an Order. Several factors may cause this, such as variances between processor programs and changes in tax rates.
A. 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; (ii) each Product, except apparel and shaker bottles, 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 and private-label products, and custom products, all 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 7.A. (collectively, the “Product Warranty”). The foregoing sentence sets forth Your sole remedy and DFH’s entire liability for breach of the Product Warranty.
B. Product Warranty Exceptions. You void the above Product Warranty if: (a) You fail to give DFH written notice of any breach of the Product Warranty within thirty (30) days after delivery or within seventy-two (72) hours after You discovered or reasonably ought to have discovered the factual basis for the breach, whichever deadline expires first; (b) You sell, consume, or otherwise use the Products after notifying DFH that they do not conform to the Product Warranty; (c) You fail or failed to follow DFH’s oral or written instructions as to the storage, handling, distribution, or use of the Products; or (d) You alter or adulterate a Product or remove or render dysfunctional its barcode. In addition: (a) claims for breach of the Product Warranty shall be treated as Grievances that are subject to Section 8.C.; and (b) You void the Product Warranty if the Products were opened, or their seals were otherwise broken, before You notified DFH of the breach of the Product Warranty or before DFH pursuant to Section 8.C. had the opportunity to inspect the Products, except to the extent You could not have otherwise discovered the factual basis for the breach of the Product Warranty.
C. Product Warranty Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 7 OF THESE TERMS OF SALE OR IN ANY SECTION OF ANY “OTHER AGREEMENT” (AS DEFINED IN SECTION 1), NEITHER DFH, ITS AFFILIATES, 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.
D. Hemp Products. Notwithstanding anything to the contrary in the Terms of Sale, DFH and its affiliates make no representation or warranty and disclaim all liability, including any obligation to indemnify You, with respect to compliance with laws and regulations regarding any and all Hemp Products. For the avoidance of doubt, You acknowledge and agree that You are not obligated to purchase Hemp Products under the Terms of Sale.
A. Non-Returnable Products. Private label products, Products labeled for distribution outside of the U.S. and Canada, heat sensitive products, apparel, Products with labels that have been altered by You or a third party in any way, and Products marked “Non-Returnable” are non-returnable and no credit or replacement will be given unless covered by the Product Warranty.
B. Communicating Grievances. If You are dissatisfied with a Product for any reason (“Grievance”), and You would like to inquire about a return or other remedy, then You must communicate the Grievance to the DFH Customer Experience team on Monday through Thursday from 8:30am to 8:00pm Eastern Time, or on Friday from 9:00am to 5:00pm Eastern Time, at 877-414-9388 if You reside in Canada or 1-860-623-6314 if You reside anywhere else, or through such other means of contact as DFH may direct You from time to time in its sole discretion.
C. Mandatory Returns. DFH in its sole discretion may deny or delay issuing You a replacement or Product credit unless and until DFH has a reasonable opportunity, after you communicate Your Grievance, to examine the Products with which You are dissatisfied. To avail itself of that opportunity, DFH in its sole discretion reserves the right to require You to return any Products related to Your Grievance to the place designated by DFH for examination, inspection, and/or testing of the Products. DFH reserves the right to hold you responsible for the cost thereof if Your Grievance is based on facts or conclusions that are false, not reasonably verifiable, overstated, or otherwise misleading.
D. Return Procedure, Exceptions. Prior authorization from the Customer Experience team and proof of purchase is required for all returns. Only Products returned with prior authorization and proof of purchase within thirty (30) days of delivery may be accepted as returns. You shall not return Products if they were opened or their seal was otherwise broken, except to the extent You are making a Product Warranty claim, and the factual basis for the claim could not have been discovered without opening the Product or otherwise breaking its seal. DFH, in its sole discretion, will either replace or provide a credit for all Products accepted as returns. A restocking fee will be charged for all returns not covered by warranty. The fee equals 15% of the purchase price of Products labeled for sale in Canada, or twenty percent (20%) of the purchase price of all other Products, subject to change from time to time in DFH’s absolute discretion. 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 to qualify for return or replacement, otherwise the Products as delivered are conclusively deemed accepted by You. All barcodes on product labels must be intact.
You represent and warrant for Yourself and Your employees, agents, and independent contractors that: (i) any medical treatment, advice, or other individual recommendation made by or on Your behalf to consumers to use the Products in the prevention, treatment, or management of any disease or health-related conditionis safe and presents no danger; and (ii) each third-party logistics provider you designate to receive delivery of, store, handle, warehouse or distribute Products on Your behalf (“3PL”) complies with all applicable laws statutes, regulations, rules, codes, standards of care, binding legal orders issued by courts or other governmental bodies, and other legal standards (collectively, “Laws”) for the safe handling storage, and transportation of foods and dietary supplements, including without limitation Current Good Manufacturing Practices, and maintains proper registration and licensure with the appropriate governmental authorities required by Law, including without limitation registration with the U.S. Food and Drug Administration (“FDA”) for 3PLs operating in the U.S., and site licensure in accordance with Health Canada requirements for 3PLs operating in Canada.
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 copy, counterfeit, reverse engineer, or reproduce any of the Products. DFH retains all of its rights related to its trademarks, copyrights and other intellectual property.
A. Definitions. In this Section 11:
1. “Data Privacy Laws” means all Laws in any jurisdiction that restrict or otherwise govern the Processing of PI (defined below Section 11.A.3.), including without limitation the Laws commonly referred to as “HIPAA,” the “California Consumer Privacy Act” or “CCPA,” and other such Laws protecting consumers’ PI.
2. “Processing” means any operation or set of operations performed on PI, whether by manual or automatic means, including creation, collection, procurement, obtainment, access, recording, viewing, reviewing, organization, storage, adaptation, alteration, retrieval, consultation, use, transmission, disclosure, sale, sharing, erasure, deletion, or destruction.
3. “PI” means an individual’s name, contact information, or other personally identifiable information that is protected or otherwise governed by one or more Data Privacy Laws, as well as an individual’s order history with DFH and other such information about the individual’s use of nutritional supplements or functional foods.
C. Warranty regarding Change of Accountholder. If DFH, at Your request or with Your approval or subsequent ratification, either converts the Accountholder of Your Account from You to a third party or otherwise facilitates, provides, or declines to prevent a third party (“Accessor”) from accessing Your Account, and if such access results in the Accessorviewing or otherwise Processing any Data Subjects’ PI, then You represent, warrant, and covenant that: (i) such Processing does not violate any Data Privacy Laws applicable to You or DFH; (ii) the Data Subjects received prior notice of, and gave sufficient prior consent for, the Processing; (iii) such notice and consent fully satisfied any requirements imposed on You or DFH by applicable Data Privacy Laws; and (iii) none of the Data Subjects had or has requested to You that such PI be deleted or not disclosed, nor had or has any Data Subject withdrawn consent to such Processing.
A. Indemnification by Customer. You shall indemnify, defend and hold harmless DFH, its affiliates, and their officers, directors, employees, agents, independent contractors, affiliates, successors and permitted assigns (each a “Party You Indemnify” or “Party Indemnified by Customer”) 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 a Party You Indemnify 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 these Terms of Sale or any Other Agreement; (ii) Your marketing, advertising, promotion or sale of any Product in any medium; and (iii) Your failure to comply with Your obligations regarding Prop 65 compliance; (iv) Your failure to comply with any applicable Law, except to the extent DFH expressly represents, covenants, or warrants that DFH bears solely responsibility for compliance with such Law.
B. Indemnification Procedure. You will cooperate fully as required by the Parties You Indemnify in the defense of any Claims. Notwithstanding the foregoing, the Parties You Indemnify retain the exclusive right to settle, compromise, and pay Claims, in which case You shall reimburse the Parties You Indemnify for such losses. The Parties You Indemnify reserve the right to assume the exclusive defense and control of Claims. You shall not settle any Claims against a Party You Indemnify without, in each instance, the prior written consent of such Party You Indemnify (if it is a natural person) or an officer of such Party You Indemnify (if it is a business entity). 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 Party You Indemnify or causes a Party You Indemnify to take any action.
AS PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DFH OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, OR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THE TERMS OF SALE, REGARDLESS OF: (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT DFH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR (C) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. AS PERMITTED BY APPLICABLE LAW, DFH AND ITS AFFILIATES’ LIABILITY FOR MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THE AGREEMENT SHALL 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 U.S. DOLLARS, WHICHEVER IS LESS. THESE LIMITATIONS SET FORTH IN THIS SECTION 13 WILL APPLY REGARDLESS OF THE LEGAL THEORY OF LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY WHATSOEVER.
A. Jurisdiction; Venue (INAPPLICABLE IF YOU ARE A QUEBEC RESIDENT).
1. DFH, Inc. If DFH is Designs for Health, Inc., then: (i) 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 to conflict of law principles; and (ii) the sole and exclusive venue and jurisdiction for the resolution of any and all disputes arising from or related to these Terms of Sale 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 DFH and You hereby submit to the jurisdiction of such courts; provided, however, that DFH may seek injunctive relief in any court having proper jurisdiction.
2. DFH Ltd. If DFH is Designs for Health Ltd., then: (i) these Terms of Sale shall be governed in all respects by the substantive laws of the Province of Ontario and the laws of Canada without regard to conflict of law principles; and (ii) DFH and You agree that the sole and exclusive venue and jurisdiction for any and all disputes arising from or related to these Terms of Sale shall be in the courts located in the Province of Ontario, and DFH and You hereby submit to the jurisdiction of such courts; provided, however, that DFH may seek injunctive relief in any court having proper jurisdiction.
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, including without limitation 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.
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 Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.
DFH shall have the right, in DFH’s sole discretion, to amend the Agreement from time to time by posting the amended agreement (each, an “Amendment”), or the amended section(s) or part(s) (each, an “Amended Part”), on any website on which DFH or a third party acting on DFH’s behalf, as of the Effective Date, had posted: (i) the Agreement, or (ii) the Amended Part(s) as they appeared in this Agreement. To the extent provided by Law, Customer shall be deemed to accept an Amendment upon the earlier to occur of: (i) the date that Customer, after the Amendment or its Amended Part(s) are posted, accepts a delivery of Products from DFH or takes any other action that by Law constitutes acceptance of the Amendment; or (ii) thirty (30) days after the Amendment or the Amended Parts were posted. Once so accepted, the Amendment shall become effective as of the date it, or the Amended Part(s), were posted, unless the Amendment expressly provides for a later effective date. Except as set forth above in this Section 17, this Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of each Party. DFH may restrict Customer’s access to purchase Products or to any other benefits of being a DFH practitioner if Customer does not accept an Amendment. 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.
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. No delay or omission by either Party in exercising its rights or remedies will be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Either Party's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of the right to subsequently enforce such provision or any other provisions of this Agreement.
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: “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 personal delivery or nationally recognized overnight courier, 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 5:00 p.m. Eastern Time on any business day will be deemed received the following business day. To the extent the Agreement requires that You communicate in writing, DFH has the right, but not the obligation, to respond to non-written communication.
(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) The headings, titles, and subtitles used in the Agreement are for convenience only and are not part of the Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against either Party. (d) 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. (f) Customer represents, warrants, and covenants that Customer, before and upon entering into this Agreement, did, or had a reasonable opportunity to: (i) print on paper a copy of this entire Agreement, and (ii) save or send the entire Agreement to a hard drive, cloud storage, or another electronic storage medium that is was, is, and at all times will be readily accessible to Customer and from which Customer may can print the entire Agreement for future reference. (g) “DFH et toi ont convenu que le present contrat serait rédigé en la langue anglaise." That means, “DFH and you have agreed that the present contract be drafted in the English language.”