AUTHORIZED RETAILER POLICY FOR THE UNITED STATES
Direct Digital, LLC dba Adaptive Health ("Adaptive Health") strives to ensure that our customers can enjoy our products without fear of misuse, contamination, or spoliation. Our products are intended and designed for sale only through our brand web sites and authorized third-party distributors and sellers. Our Authorized Retailer Policy for the United States ("Retailer Policy") helps ensure our customers receive authentic products and quality service, and thereby protects Adaptive Health's brands in the marketplace.
This Retailer Policy is issued by Adaptive Health, its affiliates, and subsidiaries and applies to Authorized Retailers of Instaflex®, Nugenix®, Peptiva®, Lumiday®, Super Beta Prostate®, Ageless Male®, Doctors' Preferred®, Adaptive Health®, Dr. Sinatra®, Dr. Whitaker®, Dr. David Williams®, Trilane®, LifeBiome®, and Sleep Answer® products ("Product(s)") in the United States of America. By purchasing Adaptive Health Products from Adaptive Health or an Adaptive Health authorized seller for retail sale, you ("Retailer") agree to adhere to the following terms. This Retailer Policy supplements any then-current agreement between Retailer and Adaptive Health regarding the sale of Adaptive Health Products. Until such status is otherwise revoked by Adaptive Health, in Adaptive Health's sole and absolute discretion, Retailer shall be considered an "Authorized Retailer." Adaptive Health may review Retailer's activities for compliance with this Retailer Policy, and Retailer agrees to cooperate with any such investigation, including, but not limited to, permitting inspection of Retailer's facilities and records related to the sale of the Products. To the extent of any conflict between the terms of this Policy and any other agreement between Adaptive Health and an Authorized Retailer ("Retailer Agreement"), the terms of any Retailer Agreement shall take precedence and supersede the terms of this policy.
1. Authorized Customers. Retailer is authorized to sell Products only to End Users in the United States. 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. Retailer shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use. Retailer shall not sell, ship, or promote the Products outside the United States of America without Adaptive Health's prior written consent.
2. Online Sales.
(a) Retailer is authorized to offer for sale and sell Products through Permissible Public Websites in accordance with the terms herein. A "Permissible Public Website" is a website or mobile application that:
(i) is operated by Retailer in Retailer's legal name or registered fictitious name;
(ii) is not a third-party storefront on an online marketplace (including, but not limited to, Amazon, eBay, Facebook Marketplace, Kroger Marketplace, and Walmart Marketplace); and
(iii) is operated in compliance with the terms and conditions set forth in the Direct Digital, LLC dba Adaptive Health Online Sales Guidelines, attached as Exhibit A, as Adaptive Health may amend from time to time.
(b) Retailer shall not offer for sale or sell Products on or through any website, online marketplace, mobile application, or other online forum other than a Permissible Public Website without the prior written consent of Adaptive Health.
(c) Adaptive Health reserves the right to terminate, at any time and in its sole discretion, its approval for Retailer to sell Products on the Permissible Public Websites, and Retailer must cease all such sales on the Permissible Public Websites immediately upon notice of such termination. The terms of this Retailer Policy supersede any prior agreement regarding the sale of Adaptive Health Products online. Any authorization previously granted to Retailer by Adaptive Health to sell the Products on or through a website, mobile application, or other online forum is revoked.
3. Sales Practices. Retailer 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. Retailer shall not make any warranties or representations concerning the Products except as expressly authorized by Adaptive Health. Retailer shall comply with all applicable laws, rules, regulations, and policies (a) applicable to Retailer's business and/or (b) related to the marketing and sale of the Products. Retailer shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Adaptive Health or the Products. Retailer shall not advertise Products not carried in inventory.
4. Product Care, Customer Service, and Other Quality Controls. Retailer shall comply with the Direct Digital, LLC dba Adaptive Health Product Care, Customer Service, and Other Quality Controls, attached as Exhibit B, as Adaptive Health may amend from time to time.
5. Intellectual Property.
(a) Retailer acknowledges and agrees that Adaptive Health owns all proprietary rights in and to the Instaflex®, Nugenix®, Peptiva®, Lumiday®, Super Beta Prostate®, Ageless Male®, Doctors' Preferred®, Healthy Directions®, Dr. Sinatra®, Dr. Whitaker®, Dr. David Williams®, Trilane®, LifeBiome®, and Sleep Answer® brands, names, logos, trademarks, service marks, trade dress, copyrights, and other intellectual property related to the Products (the "Adaptive Health IP"). Retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the Adaptive Health IP solely for purposes of marketing and selling the Products as set forth herein. This license will cease upon termination of Retailer's status as an Authorized Retailer. All goodwill arising from Retailer's use of the Adaptive Health IP shall inure solely to the benefit of Adaptive Health.
(b) Retailer's use of the Adaptive Health IP shall be in accordance with any guidelines that may be provided by Adaptive Health from time to time and must be commercially reasonable as to the size, placement, and other manners of use. Adaptive Health reserves the right to review and approve, in its sole discretion, Retailer's use or intended use of the Adaptive Health IP at any time, without limitation. In marketing the Products, Retailer shall only use images of Products either supplied by or authorized by Adaptive Health and shall ensure that all Product images and descriptions are accurate and up to date.
(c) Retailer shall not create, register, or use any domain name, social media screenname, or mobile application name that contains any Adaptive Health product name or any trademark owned by Adaptive Health, nor a misspelling or confusingly similar variation of any Adaptive Health product name or any trademark owned by Adaptive Health.
6. Termination. Adaptive Health reserves the right to terminate Retailer's status as an Authorized Retailer with written or electronic notice. Upon termination of a Retailer's status as an Authorized Retailer, Retailer shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Retailer is an Authorized Retailer of Adaptive Health Products or has any affiliation whatsoever with Adaptive Health; and (iii) using all Adaptive Health IP.
7. Modification. Adaptive Health reserves the right to update, amend, or modify this Retailer Policy at any time. Unless otherwise provided, such amendments will take effect immediately, and Retailer's continued use, advertising, offering for sale, or sale of the Products, use of the Adaptive Health IP, or use of any other information or materials provided by Adaptive Health to Retailer will be deemed Retailer's acceptance of the amendments.
EXHIBIT A
DIRECT DIGITAL, LLC DBA ADAPTIVE HEALTH ONLINE SALES GUIDELINES
1. The Permissible Public Websites must not give the appearance that they are operated by Adaptive Health or any third party.
2. Anonymous sales are prohibited. Retailer's full legal name or registered fictitious name, mailing address, email address, and telephone contact must be stated conspicuously on the Permissible Public Websites and must be included with any shipment of Products from the Permissible Public Websites or in an order confirmation email sent at the time of purchase.
3. At Adaptive Health's request, Retailer will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Permissible Public Websites.
4. The Permissible Public Websites shall have a mechanism for receiving customer feedback and Retailer shall use reasonable efforts to address all customer feedback and inquiries received in a timely manner. Retailer agrees to provide copies of any information related to customer feedback (including any responses to customers) to Adaptive Health for review upon request. Retailer agrees to cooperate with Adaptive Health in the investigation of any negative online review associated with Retailer's sale of the Products and to use reasonable efforts to resolve any such reviews. Retailer shall maintain all records related to customer feedback for a period of one (1) year following the creation or submission of such a record, to the extent legally permitted. Nothing in this paragraph shall be construed to require Retailer to disclose identifying information about its customers to Adaptive Health.
5. The Permissible Public Websites shall be in compliance with all applicable privacy, accessibility, and data security laws, regulations, and industry standards.
6. Retailer shall be responsible for all fulfillment to its customers who order Products through Permissible Public Websites, any applicable taxes associated with such purchases of Products, and any returns of Products.
EXHIBIT B
DIRECT DIGITAL, LLC DBA ADAPTIVE HEALTH
PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS
1. Comply with all instructions provided by Adaptive Health regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels. Products shall be stored in a sanitary environment away from direct sunlight. Unless otherwise instructed by Adaptive Health, Products shall be stored at room temperature in a cool dry place and tightly capped. Products must be handled in accordance with good industrial hygiene and safety practices.
2. 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.
3. Do not remove, translate, or modify the contents of any label or literature on or accompanying the Products. Do 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. Do not dilute Products.
4. Do not resell any Product that has been returned opened or repackaged.
5. Promptly upon receipt of the Products, inspect the Products and their packaging for damage, defect, broken seals, evidence of tampering, or other nonconformance (a "Defect"). If any Defect is identified, do not offer the Product for sale and promptly report the Defect to Adaptive Health at [email protected].
6. Inspect inventory regularly for expired or soon-to-be expired Products and do not sell any Products that are expired or that would expire prior to being fully consumed by the End User based on the total days' servings in the Product. Destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Adaptive Health and applicable law.
7. Be familiar with the special features of all Products marketed for sale and 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. Be available to respond to customer questions and concerns both before and after sale of the Products and respond to customer inquiries promptly.
8. Cooperate with Adaptive Health with respect to any Product tracking systems that may be implemented from time to time.
9. Cooperate with Adaptive Health with respect to any Product recall or other consumer safety information dissemination efforts.
10. Report to Adaptive Health any customer complaint or adverse claim regarding the Products and assist Adaptive Health in investigating any such complaints or adverse claims.
11. Cooperate with Adaptive Health in the investigation and resolution of any quality or customer service issues related to the sale of the Products, including disclosing information regarding Product sources, shipment, and handling.