eStore Terms and Conditions

Terms and Conditions

Metagenics Canada Online™ Webpage – Agreement with Professional and License

THIS METAGENICS CANADA ONLINE™ WEBPAGE – AGREEMENT WITH PROFESSIONAL AND LICENSE (this “Agreement”) is effective as of the date of online acceptance by Professional (the “Effective Date”) by and between Metagenics Canada, Inc., a corporation organized and existing under the laws of the Province of Ontario, with offices at 3250 Ridgeway Drive, Unit 15, Mississauga, ON L5L 5Y6  (“Metagenics”), and Professional (“Professional”).

RECITALS

A. Metagenics is a life sciences company that manufactures natural health products, nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Metagenics’ own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).

B. Metagenics has developed software (the “Software”) for the operation of its website by which webpages are identified to individual healthcare professionals in order to support the sale of Metagenics products to such professionals’ clients.

C. Practitioner is interested in establishing a webpage on Metagenics’ website (the “Webpage”), through which Professional’s clients (“Clients”) will purchase Metagenics dietary supplements and medical foods.

D. Metagenics acknowledges that Professional’s name and logo are a valuable asset unique to Professional and that these assets have substantial value in the marketplace; Metagenics desires to use Professional’s name and logo on the Webpage, and Professional is willing to grant Metagenics the right to use Professional’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

1. DEFINITIONS. The terms set forth below shall be defined as follows:

1.1. “Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential” or which would be expected to be confidential by its nature, in the case of Metagenics, including, without limitation, all confidential or non-public intellectual property (including any computer code), Content (as described below), other content, documentation, business data, marketing plans or other similar information.  In particular, “Confidential Information” of Metagenics includes the source code of the Software.

1.2. “Software” ” shall mean all software and any software tools, both in object code and source code form, now or hereafter owned or developed by Metagenics and all software Metagenics licenses from a third party or otherwise has a right to use, for establishing and maintaining the Webpage.

1.3. “Webpage” shall mean the page established using Professional’s name and logo, on Metagenics’ own website, using the Software, and maintained and supported on the Metagenics server.

2. PURPOSE; LICENSE; CONTENT; SERVER; DEVELOPMENT SERVICES.

2.1. Purpose. The purpose of the Webpage shall include, without limitation, the dissemination of information, the display of Metagenics products for order and purchase, the presentation of advertising, and other purposes.

2.2. License. Professional hereby grants to Metagenics a non-exclusive, non-assignable license to use Professional’s name and logo for all uses necessary or appropriate to the operation of the Webpage, in accordance with the terms and conditions of this Agreement.

2.3. Content of the Webpage. The Webpage will be based upon Metagenics content.  The Webpage will use the Software to implement product purchasing, data collection, and Professional-authorized information tracking.

2.4. Server for the Webpage. The Software and the Webpage will reside upon a server provided by Metagenics.

2.5. Development Services. Metagenics will provide design, programming, development and other services relating to the Webpage.

3. WEBPAGE SUPPORT SERVICES.

Metagenics shall provide the following ongoing Webpage support to Practitioner.

3.1. Establishment of Webpage on Metagenics Server. Metagenics will establish the Webpage as part of Metagenics’ own website, which is on a server provided by Metagenics and under Metagenics’ control, support, and maintenance.

3.2. Content.  Professional shall not supplement, modify or alter any content on the Webpage, except using functionality provided by Metagenics for the Webpage, unless any such change has been consented to in writing by Metagenics (email to be sufficient).  Metagenics will provide password protected access for Professional.

3.3. Backup.  Metagenics shall maintain a complete and current copy of Metagenics’ website on a separate server.  In the event that service is interrupted to Metagenics’ website, the separate server will be activated using commercially reasonable means so that public access to the Webpage may continue uninterrupted or as close as possible under the circumstances.

3.4. Privacy; Data Ownership and License.  Professional acknowledges and agrees that, as between the parties, all data (including data that may or may not be considered “personal information”, “personal data”, or other similar term as defined by appliable privacy, cybersecurity, or data protection law, collectively, “Privacy Laws”) related to Client browsing, purchasing, and other activity on the Webpage (hereinafter, “Client Website Activity”) is owned by Metagenics, is subject to Metagenics’ privacy policy, and is Metagenics Confidential Information.  For the term of this Agreement, Metagenics hereby grants Professional a limited, non-transferrable, right and license to use portions of Client Website Activity related to Client purchase transactions on the Webpage (hereinafter, “Client Transaction Activity”).  Metagenics will use commercially reasonable efforts to provide Professional access to Client Transaction Activity twenty-four (24) hours per day, seven (7) days per week, and Metagenics will provide Professional with passcodes and technical assistance as may be necessary for permitting such access.

4. INVENTORY SERVICES.

4.1. Shopping Cart Features. Metagenics will use its online shopping cart application which will be customized for the Webpage to manage the shopping experience of visitors to the Webpage.

4.2. Product Selection for the Webpage. Professional is responsible for determining applicable nutritional protocols, for selecting the natural health products to make available on the Webpage, and for instructing Professional’s Clients on specific products to support the needs of such Clients.  Metagenics maintains an on-line catalog of products from which Professional may select to make Professional’s recommendations.

4.3. Ordering from the Webpage. Completed orders will be communicated from the Webpage directly to Metagenics’ distribution center.  Products will be shipped from the distribution center to the Client using shipping documents and shipping labels that include Metagenics’ return address.

4.4. Inventory Levels. Throughout the Term of this Agreement, Metagenics shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Metagenics distribution center to meet Clients’ demand for the products listed on the Webpage.  Metagenics will establish inventory levels to reflect the actual sales performance of each product SKU.

4.5. Shipping Charges; Undeliverable Shipments; Satisfaction Guarantee; Product Recalls.

4.5.1. Shipping charges (from the Metagenics distribution center) will be paid by the Client.  Metagenics will determine and charge the appropriate shipping/handling charge per outgoing order.

4.5.2. Metagenics will be responsible for undeliverable or damaged shipments from Metagenics to Clients, and Metagenics will handle such damaged shipments according to its then-current policy regarding such shipments.

4.5.3. Metagenics will specify the satisfaction guarantee policy to which products will be subject.

4.5.4. Metagenics will be responsible for product recalls.

4.6. Product Pricing. Metagenics will recommend a suggested retail price (SRP) for each product SKU offered on the Webpage.

5. PRICING; REPORTING; PAYMENT; CREDIT AND COLLECTIIONS.

Soley if and to the extent that Professional is the re-seller of Metagenics products through Professional’s Webpage, this Section 5 shall apply.  For the avoidance of doubt, if Professional simply recommends Metagenics products which Professional’s Clients then purchase directly from Metagenics, this Section 5 does not apply to Professional.

5.1. Products. The price from Metagenics to Professional for products purchased by Clients from the Webpage shall be Metagenics’ then-current professionals’ price for such products.

5.2. Reporting. Professional will have access to sales reports.  Within twenty (20) calendar days after the close of each calendar quarter, Metagenics will provide Professional with an accounting of sales made from the Webpage.

5.3. Payment. Upon Metagenics’ request, Professional will open Professional’s own individual account with a payment processing service of Metagenics’ choice (the “Processing Service”, e.g., CyberSource, Adyen, PayQuicker, WePay, or Metagenics itself).  Clients will purchase products through the Webpage using the Processing Service.  Clients will make payments for products by an approved method of payment, which shall include providing the Client’s credit card information to the Processing Service.  The Processing Service shall deduct any applicable transaction fees and, on behalf of Professional, the Processing Service shall facilitate (i) Professional’s cost of goods sold (“Professional’s COGS”) for the products purchased by Clients through the Webpage being retained by Metagenics and (ii) the difference between the Client’s purchase price (less any applicable transaction fees) and Professional’s COGS being remitted to Professional.

5.3.1. Bank fees, credit card transaction fees, and Processing Service transaction fees, if applicable, are included in the price paid by the Client.

5.4. Credit and Collections. Professional shall be responsible for credits and collections relating to products purchased through Professional’s Processing Service account.

5.5  Sales Taxes.  In all jurisdictions that permit or require a marketplace facilitator, marketplace provider, or other similar person to collect and remit sales, use, transaction privilege, gross receipts, value-added, provincial, excise or similar transaction taxes (collectively, “Sales Taxes”), Metagenics will collect and remit Sales Taxes to the appropriate taxing authority.  Professional agrees to provide Metagenics with all information or documentation to support such treatment, including its Sales Tax registration numbers.

In all other jurisdictions or where Metagenics is not acting as a marketplace facilitator or similar person, Professional shall be responsible to collect and remit Sales Taxes to the appropriate taxing authority.  In such non-marketplace facilitator jurisdictions or where Metagenics is not acting as a marketplace facilitator or other similar person, Professional agrees that Professional will indemnify Metagenics for all Sales Tax, interest, and penalties asserted or assessed against Metagenics by a taxing authority with respect to Professional’s sales, as well as for reasonable costs to defend against such assertions or assessments.

In all jurisdictions, Professional agrees that Professional will indemnify and hold harmless Metagenics from all losses related to assessments, false claims, qui tam, and class action lawsuits with respect to Professional’s sales that may arise in such jurisdictions and that relate to the correct taxability of an item or the correct tax rate.

6. CLIENT SUPPORT.

6.1 Professional Responsibility.  Professional shall be responsible for educating Clients regarding the benefits of particular products that may be used by the Client.  Professional, to the extent applicable, will be responsible for tracking protocol compliance on the part of Clients.  Professional will be responsible for obtaining all necessary rights and permissions to permit processing of personal information as contemplated under this Agreement, including by making all necessary disclosures and obtaining applicable consents or authorizations in compliance with applicable law.

6.2 Metagenics Responsibility.  Metagenics shall be responsible for providing customer service for Clients ordering products through the Webpage, as said service relates to informing Clients of product specifications, shipment status, return authorizations, product promotions, and similar matters.

7. TERM AND TERMINATION.

7.1. Term. This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.

7.2. Termination for Cause. Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Professional, the breach of an applicable Metagenics policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.

7.3. Termination without Cause. Either party may terminate this Agreement, at any time, without cause, by giving at least thirty (30) days’ prior written notice to the other party.

7.4. Effect of Termination.

7.4.1 Removal of Name and logo. Upon the termination of this Agreement for any reason, Metagenics shall promptly remove Professional’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Professional’s name and logo from Metagenics’ website.

7.4.2 Termination of Licenses. Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.

7.4.3 Survival. Sections 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.

8. METAGENICS WARRANTIES.

8.1. Work Product Warranties. Metagenics represents and warrants to Professional that the Software, the Webpage, and Metagenics-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.

8.2. Support and Maintenance Warranties. Metagenics further represents and warrants to Professional that, at all times during which Metagenics provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:

8.2.1. Availability of the Webpage. The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.  Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).

8.2.2. Bandwidth of Metagenics’ Website. The Metagenics website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.  The goal shall be to prevent unreasonable user delays from accessing the Webpage, subject to Internet-related delays that are not within Metagenics’ control.

8.2.3. Security of Metagenics’ Website. Metagenics shall use commercially reasonable efforts to attempt to prevent unauthorized access to the Webpage and any databases or other sensitive material generated from or used in conjunction with the Webpage, provided, however, that Professional understands and acknowledges that Metagenics shall not be held responsible for the effects of malicious hacking or other concerted criminal or illegal activities on the part of third parties in relation hereto.

9. PROFESIONAL'S WARRANTIES.

Professional represents and warrants that Professional will not use any advertising material with respect to the products available on the Webpage that:  (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.

10. OWNERSHIP.

10.1. Ownership of the Website. Professional acknowledges and agrees that Metagenics owns the Software and all of the computer code on, and relating to, Metagenics’ website.  Professional shall have no rights in or to the Software, other than the rights expressly set forth in this Agreement.

10.2. Ownership of Content. All content contributed by Metagenics and, as between the parties, all Client Website Activity and Client Transaction Activity, shall be owned by Metagenics.  Professional acknowledges and agrees that any content used on the Webpage and all Client Website Activity and Client Transaction Activity shall at all times remain the property of Metagenics (or its licensor).  Professional shall have no rights in such content or such Client Website Activity or such Client Transaction Activity, other than the limited right to use for the purposes expressly set forth in this Agreement or as otherwise limited by this Agreement. Notwithstanding the foregoing, the parties agree that, to the extent Professional is a Covered Entity and Metagenics receives or creates Protected Health Information (as defined by Privacy Laws) as part of the services under this Agreement, such Protected Health Information shall be owned by Professional.

11. INDEMNIFICATION.

11.1. Metagenics Indemnification. Metagenics shall defend and hold harmless Professional against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Metagenics (including, without limitation, any breach of its obligations under Section 8), (b) arising from the negligent acts or omissions or the willful misconduct of Metagenics or (c) alleging product liability or other Claim relating to the integrity of a Metagenics product.  Metagenics shall indemnify Professional for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Professional in defending against any such Claim.

11.2. Practitioner Indemnification. .  Professional shall defend and hold harmless Metagenics against any Claim (a) arising from any breach of this Agreement by Professional (including, without limitation, any breach of its obligations under Section 9) or (b) arising from the negligent acts or omissions or the willful misconduct of Professional.  Professional shall indemnify Metagenics for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Metagenics in defending against any such Claim.

11.3. Mechanics of Indemnification. The indemnified party’s obligations are conditioned upon the indemnified party:  (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

12. CONFIDENTIAL INFORMATION.

Each party shall hold the Confidential Information of the other party in confidence and shall maintain the confidentiality of the other party’s Confidential Information with the same degree of care such party uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care.  Neither party shall (i) disclose the other party’s Confidential Information to third parties, at any time, without the prior written consent of the other party, or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.  Such restrictions shall not apply to information that (a) is already known by the recipient prior to the other party’s disclosure of such information hereunder, as established by documentary evidence; (b) becomes, through no breach of this Agreement by the recipient, publicly known; (c) is received by the recipient from a third party that was not subject to any legal or contractual restriction on disclosure of such information or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.

13. LIMITATION ON LIABILITY.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS OR BUSINESS OPPORTUNITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. EXCLUSIVITY; NON-COMPETITION.

Professional acknowledges that Metagenics is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Metagenics has developed, and will continue to develop, webpages for other parties whom Professional may consider competitive to Professional’s business.  Professional agrees that Metagenics shall continue to be free to develop webpages for other clients.  Metagenics shall not share with its other clients any identifiable data pertaining to Professional’s use of the Webpage.

15. COMPLIANCE WITH LAWS.

Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.

16. GENERAL PROVISIONS.

16.1. Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario, without regard to conflict of law principles.  In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in Peel County, Ontario.

16.2. Severability; No Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

16.3. Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.  Personnel supplied by Metagenics shall work exclusively for Metagenics and shall not, for any purpose, be considered employees or agents of Professional.

16.4. Entire Agreement; Amendment. This Agreement, including any exhibits attached hereto and the provisions referenced in such exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.  Metagenics may propose to amend this Agreement by communicating a proposed amendment to Professional via email.  Upon receipt of such an email, Professional shall have thirty (30) days within which to accept or decline the proposed amendment.  If Professional does not object to the amendment within the thirty-day period following receipt of Metagenics’ email, Professional shall be deemed to have accepted the amendment.

IN WITNESS WHEREOF, the parties hereto have duly agreed to this METAGENICS CANADA ONLINE™ WEBPAGE – AGREEMENT WITH PROFESSIONAL AND LICENSE, effective as of the Effective Date.

By clicking “Accept”, I acknowledge that I have read and I accept these Terms and Conditions.

 

If Professional is the re-seller of Metagenics products through Professional’s Webpage, Professional also acknowledge that Professional has received the Metagenics Authorized Reseller Policy, attached hereto as EXHIBIT A and available at https://www.metagenics.com/privacy-policy#authorized_reseller_policy.

EXHIBIT A

METAGENICS CANADA, INC.

AUTHORIZED RESELLER POLICY FOR CANADA

Effective Date: November 1, 2022

Revised:  June 18 , 2024

This Metagenics Canada, Inc. Authorized Reseller Policy for Canada (this “Reseller Policy”) is issued by Metagenics Canada, Inc. (“Metagenics”) and applies to Authorized Resellers (“Reseller” or “you”) of Metagenics products (each, a “Product” and, collectively, the “Products”) in the United States of America.  By purchasing products for retail sale from Metagenics, or from an Authorized Distributor appointed by Metagenics, you agree to adhere to the terms of this Reseller Policy.  Until your status as an Authorized Reseller is otherwise revoked by Metagenics, in Metagenics’ sole and absolute discretion, you shall be considered an “Authorized Reseller”.  Metagenics may review your activities for compliance with this Reseller Policy, and you agree to cooperate with any such investigation, including, but not limited to, permitting inspection of your facilities and records related to the sale of the Products.

1. Authorized Customers.  Reseller is authorized to sell the Products only to End Users in Canada.  An “End User” is 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.  Reseller shall not sell or transfer Products to any person or entity Reseller knows, or has reason to know, intends to resell the Products.  Reseller shall not sell or transfer a quantity of the Products to any individual greater than that typically purchased for personal use.  Reseller shall not sell, ship, or promote the Products outside of Canada without Metagenics’ prior written consent in each instance

2. Online Sales.

(a) Reseller shall not offer for sale, or sell, the Products on or through any website, online marketplace (including, but not limited to, Amazon, eBay, Walmart Marketplace), mobile application, or other online forum without the prior written consent of Metagenics, to be granted by Metagenics only through execution by both parties of a Metagenics Canada, Inc. Authorized Online Seller Agreement.  The terms of this Reseller Policy supersede any prior agreement between Metagenics and Reseller regarding the sale of the Products on or through websites, online marketplaces, mobile applications, and other online forums.  Any authorization previously granted to Reseller by Metagenics to sell the Products on or through a website, online marketplace, mobile application, or other online forum is revoked.

(b) Reseller (i) who is a healthcare professional with a license/certification (if required by law) or (ii) that is a business entity that has a healthcare professional as an owner, member, operator, manager, director, or other similar authority involved in the sales of the Products, is authorized to sell the Products on an eCommerce Store that is operated on behalf of such Reseller by an Authorized Distributor appointed by Metagenics.  An “eCommerce Store” is a website, micro-site, or mobile application that (x) is operated by such Authorized Distributor in its legal name or registered business or trade name, (y) is primarily used to facilitate orders of the Products from End Users on behalf of healthcare professional resellers, and (z) requires the prospective End User to create an account and log-in to purchase the Products.

(c) A Reseller who purchases directly from Metagenics and who has agreed to adhere to a Metagenics Canada Online™ Webpage – Agreement with Professional and License (the “Webpage Agreement”) is permitted to sell the Products through a webpage that is hosted by Metagenics, subject to the terms of the Webpage Agreement.

3. Sales Practices.  Reseller shall conduct Reseller’s 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.  Reseller shall not make any warranties or representations concerning the Products except as expressly authorized by Metagenics.  Reseller shall comply with all applicable laws, rules, regulations, and policies (a) applicable to Reseller’s business and/or (b) related to the marketing and sale of the Products.  Reseller shall represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the Products or the reputation of Metagenics.  Reseller shall not advertise Products not carried in inventory.

4. Product Care, Customer Service, and Other Quality Controls.  Reseller shall comply with the Metagenics Canada, Inc. Product Care, Customer Service, and Other Quality Controls, attached hereto as Addendum 1, and as may be amended by Metagenics from time to time.

5. Regulatory Compliance.  Resellers shall ensure that their operations are conducted in accordance with Canadian federal and applicable provincial law, including without limitation the Food and Drugs Act, the Food and Drug Regulations and the Natural Health Product Regulations.

6. Intellectual Property.

(a) Reseller acknowledges and agrees that Metagenics or its licensors own all proprietary rights in and to the Metagenics brand, name, logo, trademarks, service marks, trade dress, copyrights, software, and other intellectual property related to the Products (collectively, the “Metagenics IP”).  Metagenics or its licensors grant Reseller a limited, non-exclusive, non-transferable, revocable license to use the Metagenics IP solely for purposes of marketing and selling the Products as set forth herein.  This license will cease immediately upon termination of Reseller’s status as an Authorized Reseller.  All goodwill arising from Reseller’s use of the Metagenics IP shall inure solely to the benefit of Metagenics or its licensors.

(b) Reseller’s use of the Metagenics IP shall be in accordance with any guidelines that may be provided by Metagenics from time to time and shall be commercially reasonable as to the size, placement, and other manner of use.  Metagenics reserves the right to review and approve, in its sole and absolute discretion, Reseller’s use or intended use of the Metagenics IP at any time, without limitation.  In marketing the Products, Reseller shall use only images of the Products supplied by Metagenics without modification, and Reseller shall ensure that all Product images and descriptions are accurate and up to date.  All content included on Metagenics’ websites, including text, graphics, images, video clips, and audio clips, is the property of, or is licensed to, Metagenics and is protected by copyright law.  Reseller shall not use, copy, reproduce, distribute, publish, display, modify, create derivative works from, transmit, or in any other way exploit, any part of copyrighted material without obtaining the prior written consent of Metagenics in each instance, which may be withheld in Metagenics’ sole and absolute discretion.

(c) Reseller shall not create, register, or use any domain name, social media screenname, or mobile application name that contains the name of Metagenics, any Metagenics product name, any Metagenics trademark, or any misspelling or confusingly similar variation of any Metagenics product name or trademark.

(d) Reseller shall not use the Metagenics IP to purchase online advertising or as key-words for paid advertising purposes.

7.           Termination.  Metagenics reserves the right to terminate Reseller’s status as an Authorized Reseller with written or electronic notice.  Upon termination of Reseller’s status as an Authorized Reseller, Reseller shall immediately cease (i) selling the Products, (ii) acting in any manner that may reasonably give the impression that Reseller is an Authorized Reseller of Metagenics Products or has any affiliation whatsoever with Metagenics, and (iii) using any Metagenics IP.

8.           Modification.  Metagenics reserves the right to update, amend, or modify this Reseller Policy at any time.  Unless otherwise specified, such amendments will take effect immediately, and Reseller’s continued use, advertising, offering for sale, or sale of the Products, use of the Metagenics IP, or use of any other information or materials provided by Metagenics to Reseller will be deemed Reseller’s acceptance of the amendments.

9.           Confidentiality.  This Reseller Policy, including its attached Addendum 1, constitutes confidential, proprietary information of Metagenics and shall not be used for any purpose other than the authorized advertising and sale of the Products nor be disclosed to any third party without the prior written consent of Metagenics.

10.         LanguageThe parties hereto confirm that it is their wish that this policy as well as other documents relating hereto, including notices, have been and shall be drawn up in the English language only.  Les parties aux présentes confirment leur volonté que cette politique de même que tous les documents, y compris tous avis, s’y rattachant, soient rédigés en langue anglaise seulement.

DATA PROTECTION ADDENDUM

This Data Protection Addendum (this “DPA”) is incorporated into, and forms part of, the Metagenics Canada Online Webpage Agreement–ReSaleeStore (the “Webpage Agreement”) between Metagenics Canada, Inc. (“Metagenics”) and the signing Practitioner (“Practitioner”) to which it is attached.

A. OBJECTIVES AND GUIDING PRINCIPLES

  1. The objective of this DPA is to establish the rules governing the collection, use, storage, protection, and disclosure of personal health information and personal information (collectively, “PHI”) by Metagenics on behalf of Practitioner.
  2. The guiding principles of this DPA are those found in Privacy Laws, including the collection, use, and disclosure of the minimum PHI necessary to achieve the purposes set out in the Webpage Agreement.

B. APPOINTMENT AND DUTIES OF METAGENICS

  1. Practitioner hereby appoints Metagenics as Practitioner’s agent for the purposes of providing Practitioner with services in accordance with the Webpage Agreement, including this DPA (the “Services”), and Metagenics hereby accepts such appointment.
  2. Metagenics may collect PHI from Practitioner’s clients, from Practitioner, and from Practitioner’s employees and independent contractors as necessary for the purposes of providing the Services to Practitioner.
  3. Metagenics is authorized to collect, use, store, and disclose PHI as necessary to perform the Services in accordance with the Webpage Agreement and this DPA, as otherwise instructed by Practitioner, or as required by law.
  4. Metagenics acknowledges and agrees that PHI at all times shall remain under the control of Practitioner and that Metagenics acquires no independent right to PHI except with respect to PHI that has been rendered non-identifiable as provided for in Subsection C(1)(a) of this DPA.
  5. Metagenics agrees to provide Practitioner with unfettered access to PHI at all times.

C. PROTECTION OF PHI

  1. Metagenics agrees that in respect of PHI, it shall:
    1. not use PHI for any purpose other than as necessary to perform the Services, provided, however, that Metagenics may de-identify PHI such that it is rendered non-identifiable, and may use and disclose non-identifiable information for any lawful purpose;
    2. not disclose PHI to any person except:

(i)      as expressly permitted or instructed by Practitioner; or

(ii)     as required to comply with applicable laws or regulations or a valid court order or other binding requirement of a competent governmental authority.

  1. use reasonable physical, organizational, and technological security measures that are appropriate having regard to the sensitivity of the information to protect PHI against loss, theft, and unauthorized access, disclosure, copying, use, modification or disposal;
  2. restrict access to PHI to only those authorized employees and permitted agents and subcontractors who require access to such information to fulfil their job requirements and who are subject to binding obligations of confidentiality and data protection consistent with those of this DPA; and
  3. inform Practitioner at the first reasonable opportunity after becoming aware of any unauthorized access to, or use or disclosure of, PHI (each, an “Incident”), provide Practitioner with all relevant particulars of any Incident, and work with Practitioner to take reasonable steps to contain and remediate such Incident and to prevent future Incidents.

D. ACCOUNTABILITY

  1. Metagenics shall work with Practitioner to promote and demonstrate compliance with Privacy Laws and this DPA.
  2. Metagenics shall provide all necessary and reasonable information and co-operation to Practitioner, and to any regulatory or other governmental bodies or authorities with jurisdiction or oversight over Privacy Laws, in connection with any investigations, audits or inquiries.
  3. Metagenics shall provide all reasonable and necessary information and documentation to Practitioner to allow Practitioner to verify Metagenics’ compliance with this DPA.
  4. Metagenics shall designate and identify to Practitioner an individual to be accountable for Metagenics’ compliance with this DPA.

E. DATA SUBJECT REQUESTS AND INQUIRIES

  1. If Metagenics receives (i) a request from a client of Practitioner for access to such client’s PHI, or to make corrections or amendments to such PHI, or (ii) an express wish from a client of Practitioner relating to disclosure of such client’s PHI, Metagenics shall inform the client that the client must make such request or express wish directly to Practitioner.  Metagenics and Practitioner shall work together to respond to such request or express wish in accordance with the requirements of Privacy Laws.

F. RETENTION AND DESTRUCTION OF PHI

  1. Metagenics shall not destroy or dispose of any PHI, except with the express written consent of Practitioner or in accordance with this DPA or an approved data retention schedule.
  2. Upon termination of the Webpage Agreement or upon request of Practitioner at any time, Metagenics shall cease all use of, and return, dispose of, destroy, or render permanently non-identifiable, all PHI.

G. GENERAL

  1. Metagenics shall comply with Privacy Laws in providing the Services.
  2. To the extent of any inconsistency between the terms in this DPA and the terms of the Webpage Agreement as such terms may relate to PHI, the terms of this DPA shall prevail.
  3. Practitioner may terminate the Webpage Agreement immediately, upon written notice, if Metagenics fails to comply with this DPA.
  4. This DPA shall terminate upon termination of the Webpage Agreement.  Notwithstanding any termination of this DPA, the provisions of this DPA that govern Metagenics’ collection, use, disclosure, protection, and other processing of PHI shall survive until PHI is returned, disposed of, destroyed or rendered permanently non-identifiable in accordance with Section F(2) of this DPA.