FX CHOCOLATE TERMS OF SALE - WHOLESALE

1. Applicability; Scope.

   These Fx Chocolate Terms of Sale – Wholesale (“Terms of Sale” or “Terms”) are a binding wholesale sales agreement between the individual or entity entering into this agreement (“Customer”) and Designs for Health, Inc., a Delaware corporation with an office at 14 Commerce Boulevard, Palm Coast, FL 32164 (“DFH”). These Terms govern Customer’s purchase of Fx Chocolate®-branded products DFH makes available for sale to Customer (“Products”). Customer and DFH are each a “Party” and both “Parties” hereunder. If Customer is authorized to order Products from DFH for resale to others, then by placing such orders (“Orders”) or accepting delivery of such Products, Customer agree to be bound by these Terms. If any other agreement between Customer and DFH includes a hyperlink to these Terms or otherwise incorporates these Terms by reference, then these Terms apply to Customer. As used herein, “Agreement” means the combination of these Terms and all other written agreements in effect between Customer and DFH integrating these Terms. For the avoidance of doubt, any terms of sale published by DFH that are directed to retail customers, including but not limited to the Terms of Sale Retail posted at https://www.designsforhealth.com/terms-of-sale-retail, do not apply to Orders and are not part of this Agreement. Customer must be eighteen (18) years of age or older to order Products.
   
   
   

2. Account.

   Only Customer and Customer’s authorized agents (“Authorized Users”) may access the account Customer uses to purchase Products (“Account”). Customer is responsible for all orders placed through the Account, whether by Authorized Users or others, and for compliance by all such persons with the Agreement.
   
   

3. Orders Procedure and Requirements.

3.1 Order Transaction Terms:- Orders shall include the following information (“Order Transaction Terms”): (i) identification of Products to be purchased, including SKUs and all other Product identifiers; (ii) quantities ordered; (iii) requested delivery date; and (iv) the street address to which DFH will deliver the Products ordered (“Delivery Point”). Any reference to these Terms shall be read to include all Order Transaction Terms.

4. Shipping and Handling.

5. Deliveries

6. Return Policy.

   Products may be returned only if: (i) they breach the Product Warranty in Section 16; (ii) they are unaltered and their labels and barcodes are intact; (iii) Customer provides proof of purchase; and (iv) Customer requests a return authorization via email to [email protected] within seventy-two (72) hours of the Products’ delivery. Returns are for replacement only, not credit.

7. Payment and Billing.

   (i) Payment in full, without set-off, counterclaim, deduction, or withholding (other than as required by tax law(s)) is due at the time the Order is placed unless as otherwise agreed in writing and Customer signs DFH’s standard credit agreement. (ii) Customer represents and warrants that Customer is authorized to use any payment method presented to DFH and authorizes DFH (or DFH’s third party payment processor (“Payment Processor”)) to charge Customer’s payment method for the total amount of Customer’s Order (including any applicable taxes and other charges), subject to DFH’s right to correct any errors or mistakes before or after payment, and acknowledging that the amount billed may vary due to promotional offers, taxes, or other charges. (iii) Customer’s Order may be suspended or cancelled if the payment method cannot be verified, is invalid or is otherwise not acceptable. (iv) Any payment terms presented to Customer for the purchase of Products or other services are deemed part of these Terms. (v) If DFH uses a Payment Processor to bill Customer, then the processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to the Terms, and DFH disclaims all liability for errors or other acts or omissions of the Payment Processor.

8. Pricing.

   All advertised prices are in U.S. dollars, subject to change, and do not include taxes or other charges. DFH reserves the right to modify discounts or promotions at any time without notice.
   
   
   
   

9. Sales Taxes.

   A valid sales tax exemption certificate is necessary to qualify for a wholesale account. In the absence of a valid sales tax exemption certificate, DFH will collect applicable sales tax on Products. If an item is subject to sales tax, Customer agrees that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

10. Adverse Events; Complaints.

    Customer shall immediately report to DFH, by contacting DFH Customer Experience at (860) 623-6314 or [email protected], any serious adverse event or complaint about any Product or its use which is brought to Customer’s attention so DFH may comply with FDA regulations concerning investigation and reporting the same. Customer agrees to cooperate and provide reasonable assistance to DFH in the investigation of any adverse event or complaint.

11. Intellectual Property.

    DFH retains all of its rights related to its trademarks, copyrights and other intellectual property. Customer shall not use DFH’s trademarks or copyrighted material without permission, and Customer shall follow DFH’s brand use guidelines, policies, or other instructions DFH may give Customer from time to time regarding the use of DFH’s trademarks and copyrighted material.

12. Confidential Information.

    Customer and its managers, directors, officers, employees, contractors, advisors, and other personnel shall not use or disclose to third parties any non-public, confidential, or proprietary information of DFH, including but not limited to specifications, documents, data, pricing, discounts, or rebates (“Confidential Information”), and shall, promptly upon termination of this Agreement or at DFH’s request, return or destroy, at DFH’s option, all Confidential Information and materials or documents that contain, paraphrase, or otherwise incorporate Confidential Information, and certify in writing to compliance with this Section. These obligations survive termination or expiration of the Agreement and may be enforced through injunctive relief. If disclosure is compelled in a legal proceeding by a court of competent jurisdiction Customer must (i) promptly notify DFH of the same, (ii) help seek a protective order or other confidentiality measures, and (iii) only disclose the required portion(s) of such Confidential Information.

13. Term and Termination.

    This Agreement is ongoing until terminated automatically with no further action of the Parties when DFH closes Customer’s Account, which DFH may do at any time with or without notice in its sole discretion.

14. Labeling and Marketing Materials.

    Customer remains solely responsible for Customer’s business practices, website, advertising, and other marketing materials (“Marketing Materials”) under this Agreement, regardless of whether DFH recommends Marketing Materials to Customer or whether Customer sources Marketing Materials from DFH. Customer shall not remove, add to or otherwise alter the label or packaging of any Product without the prior written consent of DFH.

15. Customer Warranties.

    Customer represents and warrants for itself and its employees, agents, and representatives that: (i) it shall not make any false or misleading representations regarding the Products; (ii) it shall handle, store, market, distribute, and sell the Products in compliance with all applicable laws and regulations; and (iii) Customer and its authorized representatives violate no law, rule, or regulation by executing this Agreement, buying and reselling Products, participating in any DFH rewards program, or accepting any benefit from DFH.

16. Product Warranty

17. Indemnification

18. Insurance.

    Until this Agreement is terminated and for a period of two (2) years thereafter, Customer shall at its own expense maintain and carry insurance in full force and effect that is reasonably sufficient to cover its liabilities under this Agreement, including but not limited to commercial general liability and product liability with financially sound and reputable insurers. Upon DFH’s request, Customer shall provide DFH with a certificate of insurance evidencing the foregoing coverage, and Customer shall not do anything to invalidate such insurance. If DFH requests that Customer provide a certificate of insurance, then Customer shall provide DFH with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy.
    
    
    
    

19. Limitation of Liability.

    IN NO EVENT SHALL DFH BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE TERMS OR THE PRODUCTS TO BE PROVIDED UNDER THE TERMS, EVEN IF DFH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. DFH’S LIABILITY FOR MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS TO BE PROVIDED UNDER THE AGREEMENT WILL 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, WHICHEVER IS LESS. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE LEGAL THEORY OF LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY WHATSOEVER.
    
    
    
    

20. Jurisdiction; Venue.

    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. Customer and DFH agree that the sole and exclusive venue and jurisdiction for disputes arising from this Agreement 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 Customer and DFH hereby submit to the jurisdiction of such courts; provided, however, that equitable relief may be sought in any court having proper jurisdiction.

21. Force Majeure.

    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, without DFH’s fault or negligence, and that by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable (which events may include 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).
    
    
    
    

22. Notice.

    Customer agrees that DFH may give Customer notices required by the Agreement (each a “Notice”) or otherwise respond to Customer at: (i) Customer’s address listed in the first paragraph of this Agreement, (ii) the address and/or email address DFH has on file for Customer, or (iii) in any other manner reasonably elected by DFH. All Notices from Customer to DFH must be in writing addressed to “Attn: Legal Department” at DFH’s address at the top of these Terms, or to any other address DFH designates in writing under this Section. Notices from Customer to DFH shall include a copy to [email protected]. All Notices, other than Notice to Customer by email, must be delivered by personal delivery, nationally recognized overnight courier or certified mail (in each case, return receipt requested, 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 5:30 p.m. Eastern time on any business day will be deemed received the following business day.
    
    
    

23. Miscellaneous.

    (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 Customer. (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) 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) 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. (e) Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of DFH. The Terms are binding on and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns. (f) Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement will survive the termination of this Agreement; including but not limited to Customer’s obligations under Sections 7 through 12, 14, 15, and 17 through 23. (g) The Agreement, together with all other agreements, schedules, or exhibits integrated with or 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.