Partner Agreement for Wholesale Accounts

I understand that by agreeing to the Electronic Signature Consent Form, that all electronic signatures are the legal equivalent of my manual/handwritten signature and I consent to be legally bound to this agreement. I further agree my signature on this document is as valid as if I signed the document in writing. This is to be used in conjunction with the use of electronic signatures on all forms regarding any and all future documentation with a signature requirement, should I elect to have signed electronically. Under penalty of perjury, I herewith affirm that my electronic signature, and all future electronic signatures, were signed by myself with full knowledge and consent and am legally bound to these terms and conditions.

Partner Agreement

Practitioner Wholesale Sales Agreement Between You and Heuristic Healing Nutrition, LLC.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I AGREE” BUTTON BELOW (“EFFECTIVE DATE”). BY CLICKING ON THE “I AGREE” BUTTON BELOW YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU, AS AN INDIVIDUAL PERSON, ARE THE ACCOUNT HOLDER, AND (C) YOU AS ACCOUNT HOLDER ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ESTABLISH A PRACTITIONER ACCOUNT WITH HEURISTIC HEALING NUTRITION, LLC TO PURCHASE PRODUCTS.

This Partner Agreement is a Practitioner Wholesale Sales Agreement (“Agreement”) and is a binding contract between the individual person that is entering into this Agreement (“You” or “Customer”) and Heuristic Healing Nutrition, LLC. (“HHN”) and seeks to establish a practitioner account (“Account”) to buy products made available for sale by HHN or its affiliates to Account holders (“Products”).

In addition to this Agreement, all sales of Products are also subject to and governed by the Terms of Sale – Wholesale Accounts (“Terms of Sale”), available at 
heuristichealing.com/partner-agreement/terms-of-sale-wholesale-accounts/ or such other URL as HHN may designate from time to time, which are incorporated herein by reference and form part of this Agreement. To the extent the terms of this Partner Agreement conflict with the Terms of Sale, the provisions of this Partner Agreement shall prevail, in both cases where this Partner Agreement is expressly identified as superseding the Terms of Sale and where not expressly identified but so conflicting.

1. Customer’s Account

(a) Qualifications. Customer must have credentials that meet HHN’s requirements to qualify as a health care practitioner (“QHP”). Only QHPs are eligible to establish and maintain an Account. The sufficiency of Customer’s credentials as a QHP shall be determined by HHN in its sole and absolute discretion. Customer shall immediately notify HHN if Customer loses any credentials that Customer submitted to HHN when Customer applied to open the Account. Customer shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with the Agreement.

(b) Authorized Users. Only Customer and Customer’s authorized agents may access the Account or use the Account to purchase Products (“Authorized Users”). Customer shall not share Account access credentials or permit Account use by any person except for Authorized Users. 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. Customer shall prevent unauthorized use of the Account and shall promptly notify HHN in writing if Customer knows or has reason to believe that Customer’s Account has been used by anyone other than an Authorized User. Customer agrees to provide reasonable assistance to HHN upon request to identify unauthorized users of the Account and to take corrective actions that HHN deems appropriate.

2. Customer’s Responsibilities

(a) Resale Restrictions

(i) Resale Only in the United States. Customer shall not list, offer for sale, sell, distribute, or otherwise make available (collectively, “Sell,” and each instance, a “Sale”) Products to addresses, entities, or individuals outside the United States.

(ii) Resale Only to End Users. Customer may Sell Products only to end users who are under Customer’s care or who access Products through distribution channels or platforms authorized by this Agreement or otherwise by HHN in writing (“End Users”). Customer shall not Sell Products to distributors, resellers, or any person Customer knows or reasonably should know intends to resell Products. If Customer Sells Products to any person in violation of this Section 2(a), Sales by such person shall be attributed to and treated as if made by Customer for purposes of calculating Liquidated Damages set forth in Section 4(c) below.

(b) Online Sales of Products

(i) Online Sales Restrictions. Customer shall not, without the prior written consent of HHN, Sell any Products via any website or mobile application, except for authorized websites or mobile applications made available to Customer by HHN, such as E-Stores (defined below). HHN may grant, withhold, or condition its consent to online sales by Customer in its sole discretion.

(ii) E-Stores. E-Stores are e-commerce solutions that HHN makes available to its QHP customers including Customer so Products can be sold on their websites. E-Stores are accessed from the customers’ website domains and are operated by HHN on the customers’ behalf. All Product sales through E-Stores are between HHN and consumers that purchase Products through the E-Store after accessing the customers’ websites. HHN fulfills such orders directly to the consumers. In the event Customer instructs HHN to host and operate an E-Store on Customer’s website to make Products available for sale to End Users, Customer acknowledges and agrees that the hosting and operation of such E-Store is on an AS IS basis and HHN makes no representation or warranty with respect to such hosting or operation.

(iii) Practitioner Codes. HHN may make available to Customer access codes, discount codes, or other credentials that Customer may choose to make available to End Users for their use to purchase Products on www.heuristichealing.com or through another authorized website or mobile application (“Practitioner Codes”). Customer may disclose Practitioner Codes to its End Users but shall not post any Practitioner Code on a website or social media platform or otherwise disclose them in any public-facing manner.

(c) Advertising & Promotion of Products by Customer

(i) Website Advertising & Promotion Prohibited. No advertising or promotion of Products on websites owned or operated by Customer or on other websites is permitted, except as specifically authorized by HHN in advance in writing. Advertising that is prohibited includes, for example and without limitation, the placement of banner ads, pop-up ads, tactics to promote Products in search engine shopping feeds, search engine optimization tactics, and sponsored searches such as Google AdWords and Google Search Marketing. In the event HHN permits the advertising or promotion of Products by Customer on its website, Customer may only use images or other assets provided by HHN and only in accordance with HHN brand use guidelines, policies and other instructions.

(ii) Mobile App Advertising & Promotion. Customer shall not advertise or promote Products on mobile applications without the prior written authorization of HHN.

(iii) Social Media Advertising & Promotion. Customer may promote Products through social media accounts owned or operated by Customer, provided that the posts are educational in nature and Customer otherwise complies with this Agreement. Customer is encouraged to interact with HHN’s posts in social media. However, Customer shall not engage in any paid advertising of Products on social media platforms, including without limitation by sponsoring posts or placing paid campaigns or other paid advertising activity or sweepstakes or giveaway promotion that mentions or refers to HHN, its brands, or the Products.

(iv) No Advertising or Promotion of Price. Where advertising or promotion of Products is permitted by this Agreement (see sub-sections (i) and (iii) above), such advertising or promotion may not include Product pricing, promotions, discounts, promo codes, free shipping or any other offers affecting the price of Products.

(d) Use of HHN Materials. Customer shall not use HHN’s trademarks, copyrighted material, or other intellectual property (“HHN Materials”) without prior written permission from HHN. Without limiting the foregoing, in no event shall Customer copy or scrape images or other content from HHN web properties or otherwise from online sources. If HHN grants permission to use HHN Materials, Customer shall follow HHN’s brand use guidelines, policies, and other instructions concerning the HHN Materials. Interacting with HHN Materials posted in social media in accordance with platform terms does not violate this Section 2(d).

(e) Product Displays. Customer shall follow HHN’s written instructions for how and whether Customer may display Products in Customer’s place of business for End Users to view and purchase, including without limitation the retail display of Products.

(f) Product Claims. Customer shall not make any false or misleading representations regarding Products nor make any representations or warranties with respect to Products that are not contained within HHN’s patient or consumer literature describing Products.

(g) Adverse Events; Complaints. Customer shall promptly report to HHN, by contacting HHN Customer Experience at 925-359-9566 or wholesale@heuristichealing.com, any adverse event or complaint about any Product or its use which is brought to Customer’s attention. Customer shall immediately report any serious adverse event to HHN so HHN may comply with FDA regulations concerning investigation and reporting of serious adverse events. Customer agrees to cooperate and provide reasonable assistance to HHN in the investigation of any adverse event or complaint.

(h) Prop 65.. Customer acknowledges that some Products may require a warning under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, and its implementing regulations (“Prop 65”). Such Products are “Prop 65 Products” as used herein. A complete list of Prop 65 Products is available from HHN at 925-359-9566 or wholesale@heuristichealing.com. Customer also acknowledges that it would not be practicable for HHN to pre-label Prop 65 Products. Should Products be labeled by HHN with an appropriate warning under Prop 65 and Customer agrees not to remove or alter any such warnings on any Product if sold in the State of California. If Customer Sells Prop 65 Products in violation of the foregoing, Customer shall indemnify and hold HHN harmless for any claims, liabilities, or losses related to any Sales of Products by Customer that do not comply with Prop 65, including reasonable attorneys’ fees and other court costs.

3. Term & Termination

(a) Term. This Agreement starts on the Effective Date and continues for so long as Customer’s Account is open (“Term”).

(b) Termination. This Agreement terminates automatically with no further action of the parties when Customer’s Account is closed (“Termination”). HHN may close Customer’s Account with or without cause and with or without notice at any time in its sole discretion. Customer may close its Account by contacting HHN at (925-359-9566 or wholesale@heuristichealing.com, or by other methods of contact that HHN makes available to its customers from time to time.

(c) Events Upon Termination. Upon Termination: (i) HHN shall ship to Customer any Products in HHN’s inventory that have been paid for in full by Customer (if any), provided that Customer has no other debts outstanding to HHN; (ii) HHN shall otherwise stop performing under the Agreement; (iii) Customer shall be prohibited from reselling Products unless HHN agrees otherwise in writing, and (iv) all rights and licenses under this Agreement shall terminate.

(d) Termination for Breach. HHN may terminate this Agreement immediately by written notice to Customer upon Customer’s breach of this Agreement, including without limitation Customer’s failure to comply with Section 2 of this Agreement or to maintain the qualifications provided in Section 1 above. If this Agreement is terminated by HHN due to Customer’s breach, in addition to the events set forth in Section 3(c) above, at HHN’s election: (i) all amounts Customer owes to HHN, if any, shall immediately become due and payable notwithstanding any payment terms or due dates to the contrary to which the Customer and HHN (the “Parties”) may have agreed; (ii) Customer will permit HHN to repurchase all Products it has on hand within fourteen (14) days of notice of termination, with the cost of shipment paid by Customer. The repurchase price paid by HHN shall be the original price actually paid by Customer less a twenty (20%) percent restocking fee, provided that HHN shall not pay for any Products Customer received free of charge. HHN shall inform Customer in its notice of termination whether it elects to repurchase any Products and shall pay for the repurchase within thirty (30) days of receipt of Products.

(e) Survival. The following Sections of this Partner Agreement survive termination of the Agreement, in addition to any sections in the Terms of Sale that by their terms survive termination: 2 (Customer’s Responsibilities); 3 (Term & Termination); 4 (Remedies); 5 (Representations and Warranties); 6 (Business Entity Accounts); and 7 (Miscellaneous).

4. Remedies

(a) Remedies Cumulative. Any failure to comply with this Agreement is deemed a material breach and may result in Termination by HHN in its sole discretion. HHN reserves all rights and remedies provided herein or available at law or in equity. Except as otherwise expressly set forth herein, all such rights and remedies are cumulative and not exclusive and the exercise by HHN of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available to HHN at law, in equity, by statute, in any other agreement between the Parties, or otherwise.

(b) Injunctive Relief. Customer acknowledges that its breach of this Agreement will irreparably harm HHN’s brand reputation and goodwill as a professional line of nutraceutical products, and that the harm caused may not be susceptible to measurement of money damages alone. Accordingly, Customer agrees that HHN has the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach of this Agreement, without the necessity of posting a bond or other security.

(c) Liquidated Damages

(i) This Section 4(c) applies to each and every breach by Customer of Sections 2(a) – 2(d) of this Agreement (each such breach individually and all such breaches collectively, “LD Breach”).

(ii) Customer and HHN each acknowledge and agree that:

(1) The terms of this Agreement are necessary and proper in order to protect HHN’s brand reputation and goodwill as a professional line of nutraceutical products;

(2) In the event of LD Breach, HHN will be damaged and that the amount of damage to HHN will be difficult or impossible to determine;

(3) Liquidated Damages (defined below) are intended to compensate HHN for its monetary damages resulting from LD Breach;

(4) Liquidated Damages are intended to avoid controversy, delay, and expense in the event of LD Breach.

(5) Liquidated Damages are estimates based on the various damages that HHN expects to suffer due to LD Breach, including but not limited to lost sales and lost business, the infringement of HHN’s trademarks and other intellectual property, the irreparable harm to HHN’s business, customer relationships, goodwill and quality control procedures, and the costs of investigating any breaches.

(6) Liquidated Damages are not a penalty and are reasonable estimates of anticipated or actual harm that would be caused by LD Breach, the difficulty or impossibility of proving the amount of loss, and the difficulty or impossibility of otherwise providing an adequate remedy to HHN as a result of LD Breach.

(iii) Obligation to Pay Liquidated Damages. In the event of LD Breach by Customer, its owners, employees, agents, or subcontractors, Customer shall pay to HHN liquidated damages in an amount equal to $100.00 for each separate LD Breach for each day that any LD Breach occurs (“Liquidated Damages”). Each LD Breach with respect to each Product is considered a separate LD Breach for the purposes of calculating Liquidated Damages. For example, if each day for 10 days Customer Sells 3 Products to a reseller in breach of the prohibition on Sales to resellers in Section 2(a)(ii) above, then that is considered 30 LD Breaches subject to Liquidated Damages of $3,000.00.

(iv) Payment of Liquidated Damages is due upon written demand. HHN may, but is not required to, invoice Customer for any Liquidated Damages and may retain Liquidated Damages from any payment otherwise due to Customer. Payment or assessment of Liquidated Damages does not release Customer from any obligations under this Agreement.

(v) Liquidated Damages constitute HHN’s sole and exclusive monetary remedy for damages for LD Breaches by Customer, any of its owners, employees, agents, or subcontractors. HHN has the right to recover, in addition to Liquidated Damages, any damages suffered by HHN as a result of breaches of the Agreement other than LD Breaches. Nothing in this Section 4(c) limits or restricts HHN’s right to injunctive relief with respect to any LD Breach.

5. Representations and Warranties. Customer represents, warrants, and covenants that:

(a) any protocols, dosage, and/or usage instructions for Products provided by Customer to End Users, including without limitation to combine intake of Products with other Products or other dietary supplements or drug products, are safe and present no health or safety hazard to such End Users;

(b) Customer and its authorized representatives will Sell, recommend, promote, and/or administer Products in accordance with applicable laws and regulations, and in accordance with the applicable medical or other healthcare standard of care; and

(c) Customer and its authorized representatives violate no law, rule, or regulation by executing this Agreement, opening an Account, buying and reselling Product, participating in any HHN rewards program, or accepting any commission or other benefit from HHN.

6. Business Entity Accounts

(a) Formation of Triparty Agreement; Joint and Several Liability. If:

(i) the Customer (that is, the individual person who clicks the “I Agree” button signs, or otherwise approves this agreement), despite warranting above that he or she enters into this Agreement as an individual person: (u) maintains that he or she entered into this Agreement on behalf of a business entity rather than as an individual person; (v) purports to place orders of Products or otherwise transact or engage with HHN on behalf of a business entity rather than as an individual person, or (w) contends that the Account is in the name of a business entity (such contention under subparts (u), (v), or (w), “Customer’s Contention,” and such business entity thereunder, the “Business Entity”); and

(ii) the Business Entity is not a party to a Partner Agreement with HHN governing the purchase or sale of Products; and

(iii) HHN fulfills or causes the fulfillment of Product orders placed through the Account or otherwise engages with the Account, with or without objecting to Customer’s Contention,

Then, by placing orders for Products: (x) such Business Entity, as of the Effective Date, joins the Customer as a party to this Agreement, (y) the Business Entity and the Customer shall be jointly and severally liable for Customer’s obligations hereunder, including but not limited to liability for liquidated damages under Section 4(c), and (z). HHN, at its sole option and discretion, may discharge its obligations under this Agreement by rendering performance to either the Customer or the Business Entity. For the avoidance of doubt, notice from HHN to Customer shall satisfy any requirement to provide notice to the Business Entity, and notice from HHN to the Business Entity shall satisfy any requirement to provide notice to the Customer, regardless of to whom the notice is addressed or directed.

(b) Business Entity’s Credentials. If the Business Entity is a party to this Agreement by operation of Section 6(a) above, then at least one employee or contractor affiliated with the Business Entity must have credentials that meet HHN’s requirements to qualify as QHP, and the Business Entity shall immediately notify HHN when it ceases to be affiliated with an employee or contractor who is a QHP.

7. Miscellaneous

(a) California Consumer Privacy Act. The parties agree to comply with the California Consumer Privacy Act of 2018, as amended, and any regulations promulgated thereunder (“CCPA”). In the event that HHN processes personal information on behalf of Customer as part of fulfilling orders directly to End Users (“Customer PI”), HHN agrees that it will not (i) sell the Customer PI or (ii) retain, use or disclose the Customer PI for any purposes that would cause HHN to lose its status as a service provider. As used in this Section 7(a), “personal information,” “sell,” and “service provider” have the meaning given to them in the CCPA.

(b) Modifications; Waiver; Entire Agreement. HHN shall have the right, in HHN’s sole discretion, to modify this Agreement from time to time, and the modified terms shall become effective on posting and acceptance by Customer. Otherwise, this Agreement may not be altered, amended or modified, except by a written document signed by an authorized representative of each Party. HHN may restrict Customer’s access to purchase Products, to other benefits of being a HHN practitioner, or to other features of the Account unless Customer agrees to the latest version of this Agreement. Failure by either party to enforce any of the terms and conditions of this Agreement shall not constitute or be deemed to be a waiver of such terms or conditions, or of the right thereafter to enforce the Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter covered herein and supersedes any prior or contemporaneous oral or written agreements between the Parties on the same subject matter, except to the extent the Parties enter or have entered into a written signed agreement that expressly states it shall prevail in all or any respect over any future Partner Agreements that may be formed between the Parties.

(c) Jurisdiction; Venue. This Agreement is governed in all respects by the substantive laws of the United States of America and the State of California without regard to conflict of law principles. HHN and Customer agree that the sole and exclusive venue and jurisdiction for disputes arising from or related to this Agreement is in the U.S. California for the state courts of California located in Contra Costa County, California. HHN and Customer hereby submit to the jurisdiction of such courts, provided however that equitable relief may be sought in any court having proper jurisdiction.

(d) Attorney Fees. If any claim, suit, or action is instituted to enforce the provisions of this Agreement or otherwise with respect to the subject matter hereof, the prevailing party will be entitled to recover its costs and reasonable attorney fees incurred in the preparation, prosecution, or defense of such claim, suit, or action, including such costs and fees on appeal and related to the collection of any judgment.

(e) Notices. Customer agrees that HHN may give it notices required by the Agreement (each a “Notice”) or otherwise respond to Customer at the address and/or email address HHN has on file for Customer’s Account or in any other manner reasonably elected by HHN. All Notices from Customer to HHN must be in writing and addressed to: (i) wholesale@heuristichealing.com; (ii) Heuristic Healing Nutrition, LLC., 3446 Mt. Diablo Blvd, Lafayette, CA 94549, Attn: Legal Department; or (iii) any other address HHN otherwise designates in writing. Customer shall deliver all Notices by email, personal delivery, or nationally recognized overnight courier. Unless Notice from Customer is by email, it must be return receipt requested and postage prepaid. Except as otherwise provided in the Terms, a Notice is effective only if the party giving the Notice has complied with the requirements of this Section 7(d). Notice received after 5:30 p.m. on any business day will be deemed received the following business day.

By checking this box, I signify that I have read the Liquidated Damages clause above, and I understand that I may be liable to Heuristic Healing Nutrition to pay liquidated damages in the event of my breach of this Partner Agreement.

By checking this box and clicking “I Agree” below, by purchasing Products, or by approving another e-signature form I signify that I have read and I understand this Partner Agreement and that I, as the healthcare practitioner linked to this wholesale account, am legally bound by these terms.