HCP Distribution Agreement
- 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 Term 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.
- HCP shall sell ChromaDex’s dietary supplement, TRU NIAGEN® (the “Product”) on HCP’s professional website and in HCP’s professional office/clinic only and shall not advertise, promote, offer, market, distribute or sell the Product(s) or exploit the Marks in any manner on or through Internet Search Engines or Directories and shall not resell to any on-line or off-line retailers. Further, HCP shall only to fulfil/ship to end use consumers in the US. International destinations will require prior written approval by ChromaDex.
- (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).
- ChromaDex warrants to HCP that the Product(s) shall conform to the Products’ label specifications. ChromaDex’s sole obligation and HCP's exclusive remedy under this warranty is for ChromaDex to replace any non-conforming Product(s). If ChromaDex is unable to replace any such Product(s), ChromaDex will refund the Product(s) price. 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. ALL CLAIMS MADE WITH RESPECT TO THE PRODUCT(S) SHALL BE DEEMED WAIVED BY HCP UNLESS MADE IN WRITING AND RECEIVED BY CHROMADEX WITHIN THIRTY (30) DAYS OF DELIVERY. HCP MUST MAKE ANY CLAIM FOR NON-CONFORMING PRODUCT(S), BREACH OF WARRANTY WITH RESPECT TO THE PRODUCT(S) SOLD, OR ANY CLAIM OF ANY NATURE WHATSOEVER WITH RESPECT TO THE PRODUCT(S) SOLD HEREUNDER IN WRITING WITHIN THIRTY (30) DAYS AFTER HCP’S RECEIPT OF PRODUCT(S). HCP IRREVOCABLY WAIVES AND RELEASES ALL CLAIMS THAT ARE NOT PROPERLY MADE WITHIN SAID PERIOD.
- 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.
- 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 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.