This Modification to Pure Encapsulations, Inc. Authorized Online Reseller Agreement (the “Modification”) modifies and amends the Pure Encapsulations, Inc. Authorized Online Reseller Agreement (the “Agreement”) between you and Pure Encapsulations, LLC (“PE”). This Modification is effective as of the date PE provides you with notice of this Modification (the “Modification Effective Date”). Except as modified or amended pursuant to this Modification, the Agreement remains unchanged and in full force and effect as written. Unless otherwise defined herein, capitalized terms herein shall have the meanings ascribed to them in the Agreement.
1. Updated Terms and Products. As of the Modification Effective Date, the definitions included in the Agreement for the following terms are modified as follows:
(a) “Terms” will be defined as the Atrium Professional Brands Authorized Reseller Terms and Conditions.
(b) “Products” will be defined as Pure Encapsulations® brand products.
2. Update to Section 2 of the Agreement. As of the Modification Effective Date, Section 2 of the Agreement will be replaced with the following:
2. Your Website must be confined to the specific approved domain name(s). You may not use any Atrium IP, nor any misspellings of any Atrium IP, in the construction of your domain name, including top-level domains and sub-domains, for any part of your Website.
(a) You may not sell online anonymously. The full name, address, and telephone contact of your business should be conspicuously stated on the Website and must be included with any shipment of Products from the Website or in an order confirmation email delivered at the time of purchase. Your Website must not give the appearance that it is operated by PE or any third party.
(b) The following copyright attribution must appear on any page of your Website where PE graphic material appears: Pure Encapsulations’ logo, text, graphics, and photo images are the property of Société des Produits Nestlé S.A. and are used with permission. Copyright © 2021.
(c) Nothing in this Agreement shall be interpreted as modifying the prohibition on the marketing and sale of Products on or through third-party marketplace sites (e.g., eBay, Amazon, Walmart Marketplace), drop-ship accounts (e.g., Rakuten, Newegg, Overstock), on classified sites (e.g., Craigslist, Facebook Marketplace), or social media or Internet forums.
3. Update to Section 5 of the Agreement. As of the Modification Effective Date, Section 5 of the Agreement will be replaced with the following:
5. The license granted to you in the Terms is hereby amended to authorize use of the Atrium IP related to the Products on the Website, and subject to the additional quality controls contained herein. You acknowledge that you own no right, title, or interest in any of the Atrium IP except as granted in the Terms or herein. Your license to use the Atrium IP on the Website shall be revoked immediately upon termination of this Agreement.
4. Update to Section 7 of the Agreement. As of the Modification Effective Date, Section 7 of the Agreement will be replaced with the following:
7. In your sales of Products from your Website, you acknowledge and agree that you are responsible for all fulfillment to your individual customers, any applicable taxes associated with such individuals’ purchases of Products, and any returns of Products. Unless separately authorized in writing by PE, you may not use any third-party fulfillment service to store inventory or fulfill orders for the Products. Under no circumstances shall you fulfill orders in any way that results in the shipped Product coming from stock other than yours.
5. Update to Section 8 of the Agreement. As of the Modification Effective Date, Section 8 of the Agreement will be replaced with the following:
8. In your marketing and descriptions at your Website, all Product images and descriptions must be supplied by or authorized by PE, accurate, and up-to-date. You must remove outdated Product images and descriptions and must not advertise Products you do not hold in inventory. You may only represent Products on web pages listing only PE Products. The Website must have a mechanism for receiving customer feedback and you agree to use reasonable efforts to address all customer feedback and inquiries received in a timely manner. You agree to provide copies of any information related to customer feedback (including any responses to customers) to PE for review upon request. You agree to cooperate with PE in the investigation of any negative online review associated with your sale of the Products and to use reasonable efforts to resolve any such reviews. You shall maintain all records related to customer feedback for a period of one year following the creation or submission of such a record, to the extent legally permitted. Nothing in this paragraph shall be construed to require you to disclose identifying information about your customers to PE.
6. Update to Section 10 of the Agreement. As of the Modification Effective Date, Section 10 of the Agreement will be replaced with the following:
10. You shall operate the Website in compliance with all applicable privacy, accessibility, and data security laws, regulations and industry standards.
7. Update to Section 11 of the Agreement. As of the Modification Effective Date, Section 11 of the Agreement will be replaced with the following:
11. On termination of your status as an Authorized Reseller, you must immediately cease all marketing and sales of Products at your Website and your authorization to use Atrium IP as set forth in paragraph 5 is revoked.
8. Update to Section 12 of the Agreement. As of the Modification Effective Date, a new Section 12 of the Agreement will be added as follows:
12. If there is a breach or threatened breach of this Agreement, it is understood that PE will have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement. No failure, refusal, neglect, delay, waiver, forbearance, or omission by PE to exercise any right(s) herein or to insist upon full compliance by you with your obligations herein shall constitute a waiver of any provision herein or otherwise limit PE’s right to fully enforce any or all provisions and parts thereof.
9. Update to Section 13 of the Agreement. As of the Modification Effective Date, a new Section 13 of the Agreement will be added as follows:
13. The Agreement and any dispute arising under the Agreement shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules. In the event of a dispute over the terms or performance of the Agreement, you expressly submit to personal jurisdiction and venue in the federal or state courts in Middlesex County, Massachusetts. This Agreement may not be assigned or transferred by Reseller without the prior written consent of PE. In the event of a breach or threatened breach of this Agreement by Reseller, Reseller is responsible for PE’s attorneys’ fees and costs associated with any lawsuit or other action necessary to obtain appropriate relief.