Revised: January 1, 2023
HCP Distribution Agreement
- Establishing a Professional Account. Unless separately authorized in writing by ChromaDex, by establishing a Professional Account and purchasing the Products, you (“HCP” or “you”) represent and warrant that you:
- are a physician or other licensed medical professional, certified by, and in good standing with, your relevant state professional and regulatory authority; and
- have provided or will provide to ChromaDex a copy of your current license, degree, or health practitioner certificate; and
- are purchasing our Products solely for sale to your patients and clients at your place of business as designated by you in your Professional Account application; and
- will sell our Products solely to individuals that you believe are purchasing our Products for their personal use; and
- will only sell our Products at your place of business as designated by you in your Professional Account application.
- HCP shall periodically submit purchase orders for the Products to ChromaDex. The purchase orders shall set forth the specific quantities needed, shipment destination, and delivery date. HCP shall pay for the Products via a prepaid check or credit card. Account terms are not permitted. Any terms contained in any such purchase order other than those contained in this Agreement shall have no force or effect. ChromaDex shall deliver the Products not later than ninety (90) days following HCP’s submission of a purchase order for Product. ChromaDex shall accept or reject such purchase order promptly after receipt. ChromaDex reserves the right to reject any Purchase Order, in whole or in part, for any reason. Product returns and/or credits will not be granted. ChromaDex shall not ship any Product or fulfill any purchase order until full payment is received from the HCP in accordance with this Section.
- HCP acknowledges the following: (a) ChromaDex is the owner or the exclusive licensee of certain intellectual property rights related to the composition and use of the compound nicotinamide riboside (NR); (b) that the trademarks TRU NIAGEN®; NIAGEN®; ChromaDex®; and Age Better® (the “Marks”) are owned by and constitute valuable property of ChromaDex; and (b) that the misuse or abuse of such Marks in advertising, promotion, marketing or sales of the Product(s) in any channel, including the Internet, would undermine the integrity and value of the Marks and the Product(s), and irreparably harm ChromaDex. Subject to the terms and conditions of this Agreement, ChromaDex hereby grants to HCP during the period of time during which ChromaDex sells its Products to the HCP, a nontransferable, non-sublicensable, non-exclusive, right and license to the Marks solely to distribute, offer to sell and sell the Product(s). ChromaDex shall have the right to withhold certain aspects of the Marks from HCP, in its sole discretion and at any time. Upon the written direction of ChromaDex, HCP shall in good faith and without delay remove, erase, and take down any public-facing material concerning the Products, ChromaDex’s rights under this Agreement, ChromaDex’s intellectual property, or the Marks. ChromaDex may terminate this Agreement at any time upon written notice to the HCP.
- The Parties agree and acknowledge that Incoterms 2020 EXW shall govern the Parties’ rights and obligations concerning the risk of loss, customs clearance, taxes, duties, shipping fees, and other obligations recited under this Agreement. ChromaDex reserves the right to pack or ship orders in the most economical manner, provided that this does not result in increased risk of loss of the Products.
- HCP shall only sell, market, commercialize, and distribute the Products in the United States only on (i) the HCP’s professional website and (ii) in the HCP’s professional brick and mortar offices (the “Territory”). HCPs shall not advertise or sell the Products on or through any website or online marketplace outside the Territory, including, but not limited to, Amazon, eBay, Walmart Marketplace, mobile application, or other online forum without the prior written consent of ChromaDex.
For further clarity, HCP is authorized to sell the Products only to a 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 (an “End User”). HCP shall not sell or transfer Products to any person or entity HCP knows or has reason to know intends to resell the Products. HCP shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use.
HCP expressly agrees and understands that any breach of this Section shall constitute a material breach of this Agreement, permitting ChromaDex to terminate this Agreement immediately and without liability. ChromaDex expressly reserves the right to sell, market, commercialize and distribute the Products globally in its sole and absolute discretion. In the event HCP breaches this Section, HCP shall pay ChromaDex a fee equivalent to twenty-five thousand dollars and 00/100 ($25,000.00) (USD) in liquidated damages within thirty (30) days of receiving written notice from ChromaDex of such non-compliance. HCP agrees and acknowledges that these liquidated damages are a fair and reasonable estimate of the loss and damage that ChromaDex incurs as a result of HCP’s breach of this Section.
- (a) HCP shall not include any Product Mark, or similar variations of such Marks, in the meta tags or similar devices of any web site HTML code; (b) HCP shall not purchase, obtain or use any keywords from Search Engines, so as to redirect traffic to HCP’s professional website or any other website; (c) HCP shall not purchase the Marks, or any variations thereof, for use in text links, banner ads, pop-up ads or any other type of ad that could be associated with a keyword campaign; (d) HCP shall not purchase or obtain additional domain names (URLs) with any part of the Marks or Product(s), or any variations thereof, included as part of the address. Ownership of all domain names HCP currently uses which include the Marks and all variations of such Marks, must be transferred to ChromaDex no later than 30 days after execution of this Agreement; and (e) HCP shall not outsource Search Engine marketing efforts to any third party.
- HCP shall not repackage or relabel the Product or in any way modify the packaging, labeling or any other aspect of the Product(s). HCP shall comply ChromaDex’s Brand Guidelines (as may be provided from time to time by the ChromaDex), as well as all applicable laws, rules, and regulations, with regard to advertising, marketing, promoting, and selling the Product(s) by health care professionals. In the event HCP is not in compliance with this Section, HCP agrees to immediately rectify any violation in a manner acceptable to ChromaDex or ChromaDex reserves the right to immediately terminate this Agreement and revoke HCP’s right to continue to sell the Product(s).
For clarity, HCP shall not tamper with, deface, or otherwise alter batch codes, lot codes, or any other identifying information on Products. Further, HCP shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products. HCP shall comply with all instructions provided by ChromaDex regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels. HCP shall store the Products in a cool, clean, dry place, away from direct sunlight, extreme heat, and dampness. HCP shall sell Products in their original packaging. Relabeling, repackaging (including the separation of bundled Products or the bundling of Products), and other alterations are not permitted. HCP shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products. HCP 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. HCP shall not alter or dilute Products. HCP shall not resell any Product that has been returned opened or repackaged. HCP shall inspect its inventory regularly for expired or soon-to-be expired Products and shall remove those Products from its inventory. HCP shall not sell any Products that are expired or within 90 days of expiration. HCP shall destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by ChromaDex. HCP 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 warranty, guarantee, or return policy. HCP 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. HCP shall cooperate with ChromaDex with respect to any Product tracking systems that may be implemented from time to time. HCP shall cooperate with ChromaDex in the investigation and resolution of any quality or customer service issues related to HCP’s sale of the Products, including disclosing information regarding Product sources, shipment, and handling.
- HCP shall promptly inspect the Products upon receipt. HCP may reject any Products which do not materially conform to the Products’ label specifications. Products which do not materially conform to Exhibit B shall be defined as “Non-Conforming Goods”. HCP must communicate in writing to ChromaDex to email@example.com its rejection of Non-Conforming Goods within thirty (30) days of receiving the Products. ChromaDex’s weights and analysis shall govern and control. Upon providing notice to ChromaDex of Non-Conforming Goods, ChromaDex must, at its election, (i) provide a pro rata refund for any fees paid by HCP to ChromaDex for the Non-Conforming Goods, or (ii) replace the Non-Conforming Goods with conforming Products. HCP shall, at its expense, destroy any Non-Conforming Goods within thirty (30) days of receipt. Failure by HCP to timely notify ChromaDex of Non-Conforming Goods shall constitute a waiver of its rights under this Section.
- ChromaDex shall have no responsibility under any warranties or for any damages to the Product(s) if the Product(s), after it has left the control of ChromaDex is: (i) improperly handled after delivery by ChromaDex to its carrier in good order; (ii) subject to extreme atmospheric conditions; (iii) misused in any manner; (iv) modified in any way; (v) not used in accordance with accompanying directions for use, instructions, industry standards and practices; or (vi) used for a different purpose than intended as labeled by ChromaDex. EXCEPT AS EXPRESSLY SET FORTH, CHROMADEX MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCT(S) EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
- At all times, HCP shall comply with the following Minimum Advertised Pricing (MAP) policy: (a) ChromaDex shall establish a MAP for Product(s). The MAP may be adjusted at ChromaDex’s sole discretion upon seven (7) days written notice to HCP. The MAP applies to all advertisements and promotion for Product(s) in any and all media, including, but not limited to: ﬂyers, posters, coupons, mailers/emails, inserts, newspapers, magazines, catalogs, mail order catalogs, Internet or similar electronic media, television, radio and other public displays; (b) The MAP applies only to advertised prices and does not apply to the price at which the Product(s) is actually sold. The final sales price remains totally at HCP’s discretion. The MAP does not apply to sale in office/clinic advertising that is not distributed to customers. Nor does it prevent HCP from advertising that a customer may “call for price” or “email for price” or use similar language, so long as no price is listed, or to sell a product(s) on the Internet at a lower price, so long as an automated bot or web crawler cannot find the price, by for example providing a price only after a customer has provided a password that an automated bot or web crawler cannot provide. Website features such as “click for price”, automated “bounce-back” pricing e-mails, and automatic price display for any items prior to being placed in a customer’s shopping cart, or any other feature that may be captured by an automated bot or web crawler at a price below MAP shall constitute prohibited advertising; (c) Failure to abide by the terms of this MAP policy may result in termination of HCP’s supply of the Product(s) permanently.
- In the event that any one or more of the provisions contained herein is held invalid, illegal or unenforceable in any respect for any reason in any jurisdiction, the validity, legality and enforceability of all such remaining provisions shall not be in any way impaired or affected, it being intended that each of parties’ rights and privileges shall be enforceable to the fullest extent permitted by law, and any such invalidity, illegality and unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Neither party may assign their rights and obligations under this Agreement without the prior, written consent of the other, provided, however, that ChromaDex may assign its rights and obligations in its sole discretion. Neither party to this Agreement will be responsible for failure to perform due to causes beyond its reasonable control. If performance under this Agreement is delayed or prevented by such contingencies, a party may request forbearance of performance and such party shall, without delay, notify the other party in writing. HCP shall maintain a program of insurance or self-insurance at levels sufficient to satisfy its obligations under this Agreement, which shall include commercial general liability insurance with limits of at least $5,000,000.00 (USD) per occurrence and product liability insurance with an aggregate limit of at least $10,000,000.00 (USD). HCP shall name ChromaDex as an additional insured under its existing insurance policies, and shall provide ChromaDex with a Certificate of Insurance evincing its compliance with this Section.
- HCP shall be solely responsible and liable for any breach of this Agreement, and shall indemnify, defend, and hold harmless ChromaDex and its respective officers, directors, employees, agents, successors and assigns from and against any third party claims or direct claims arising from the sale, distribution, or commercialization of the Products by the HCP (“HCP Claims”), including without limitation HCP Claims which arise from the failure to indemnify.
HCP shall use good faith and best efforts to satisfy its indemnification obligations under this Section, and in no event shall HCP settle or resolve any HCP Claims without the advance, written approval of ChromaDex in every instance. ChromaDex shall be permitted to select counsel of its own choosing to represent its interests in connection with the indemnification obligations recited under this Section.
- Neither party to this Agreement will be responsible for failure to perform due to causes beyond its reasonable control. If performance under this Agreement is delayed or prevented by such contingencies, a party may request forbearance of performance and such party shall, without delay, notify the other party in writing.
- This Agreement, including the validity hereof and the rights and obligations of the parties hereunder, shall be construed in accordance with and governed by the laws of the State of California applicable to contracts made and to be performed entirely in the State of California (without giving effect to the conﬂicts of laws provisions thereof). Each of the parties hereto agrees that any action or proceeding brought to enforce the rights or obligations of any party hereto under this Agreement will be commenced and maintained exclusively in the State of California, and the county of Los Angeles. HCP agrees that process may be served upon it by certified mail, return receipt requested, at address provided.