2b - Healthcare Practitioner Agreement
This HEALTHCARE PRACTITIONER AGREEMENT (this “Agreement”), signed and effective on the dates set forth below (the “Effective Date”), is entered into by and between DesBio PAO, LLC, a Utah limited liability company(the “Company”), and (“Practitioner”). The Company and Practitioner are referred to collectively herein as the “Parties.” This agreement replaces any prior agreements in entirety.
In consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Representations. Practitioner represents that he/she is a qualified healthcare provider. During the time of this agreement Practitioner shall have and maintain a valid license to practice medicine for each state in which Practitioner practices medicine.
2. Services. The Company will provide ordering and fulfillment services so Practitioner's patients may purchase products directly from the Company under Practitioner's direction and approval. Practitioner will invite each patient individually to the Company's website and each will be required to sign a patient agreement certifying they are purchasing the products under Practitioner's care and supervision. See Attached form of Patient Agreement.
3. Internet Sales Policy. No product should be purchased by a patient without the Practitioner first providing a healthcare evaluation/consultation. Practitioner agrees that he/she will not resell any products purchased from the Company to anyone other than his or her own personal patients. Practitioner understand she/she is fully responsible for any and all costs the Company incurs as a result of breach of this agreement as well as a minimum payment of $5000 per infraction.
4. Healthcare Practitioner Certification. Practitioner understands the products purchased from the Company are complex products whose effects could vary from patient to patient. Practitioner acknowledges that, as a prescribing healthcare professional, Practitioner will recommend the products based solely on his/her own professional judgement, as opposed to reliance on any claim or statement made about the products by the Company, its staff or representatives.
5. Product Advice Certification. Practitioner understands the Company sells many types of products including homeopathic products that are based on homeopathic principles and require specific homeopathic knowledge to use (the "Products"). Practitioner certifies and acknowledges that by prescribing or recommending any Product from the Company to his/her patient, he/she is legally and lawfully able to provide advice to his/ her clients/patients on the use of those Products and prescribe them based on his or her own professional judgment, and is solely responsible for the determination of Product usage. Practitioner agrees to immediately notify the Company and to cease the prescribing and recommending Products to his/her patients if he/she is unable to legally and lawfully comply with this statement.
6. Healthcare Practitioner Responsibility. Practitioner is responsible for all orders made under their account and Practitioner agrees to review all orders made and confirm the patient is under the care of the Practitioner and the Products are appropriate for the patient. Practitioner agrees to immediately notify the Company in the event a person who is not under the care of the Practitioner orders Products or a Product has not been recommended by the Practitioner and is not appropriate for the patient. Practitioner must sign the Business Associates agreement.
7. Refund Policy. Practitioner understands and acknowledges that there are limited returns/refunds available for patient purchases and Practitioner will inform patients of the return policy. No returns or refunds will be given except for Product that is faulty or damaged upon receipt. The patient must contact the Company within seven days of receipt and provide the product name, lot number, and the name of their Practitioner. The Company will provide either replacement Product or Company credit for the item.
8. Patient Interaction. Patients using the Company’s website and services will be deemed customers of the Company. The Company does not provide health advice or product/dosage recommendations.
9. Service Fee and Commission.(a) Service Fee. The Company’s service fee is calculated as 30% of the gross profit on the sale of each product. Gross profit is defined as the manufacturer’s suggested retail price minus the wholesale price.(b) Commission. On or before the last day of the month, the Company will issue payment to the practitioner via its designated payment system (currently, PayPal)for the prior month’s aggregate gross profit on sales from his/ her patients, less the Company’s service fee. Practitioner shall be responsible for setting up and maintaining their account with the designated payment system to receive their commission payments. Practitioner shall be responsible for any and all taxes associated with any remuneration it shall receive from the Company. Practitioner payment will be reduced for any fraudulent orders, returns, refunds and charge-backs. (c) Coupons and Sales. Practitioner may choose to forego some or all of his/her payment to be passed on as a discount to his/her patients. Discounts from coupons issued by the Company, the cost of the use of which will be split 50/50 between Practitioner and the Company. The maximum discount offered by the Practitioner on any product is 30 percent.
10. Termination of Agreement. Either party may terminate this Agreement at any time for any reason or no reason at all with thirty days' advanced written notice; however, should Practitioner breach the terms of this Agreement or otherwise act in a way which may negatively impact the name or reputation of the Company, no such thirty day notice shall be required. Examples of behavior which shall give rise to immediate termination shall include, but not be limited to, theft of Company assets, failure to perform the duties listed on Exhibit A, arrest for crimes of moral turpitude. Notwithstanding the termination of this Agreement, the provisions of this Agreement that continue beyond such termination shall remain in full force and effect. Any termination of this Agreement shall occur only when both parties have been so apprised of such termination.
11. Confidentiality. In the performance of the service contemplated by this Agreement, Practitioner agrees to hold in strict confidence all confidential or proprietary information that it receives relating to the Company’s business, and Practitioner will not divulge or otherwise communicate such information to a third party without the Company’s prior written consent. Confidential or proprietary information shall include all information obtained by Practitioner from the Company, and which relates to the Company’s past, present, or future business activities, including client lists, technology and operational processes and manuals, except for previously obtained or publicly disclosed information. Further, Practitioner acknowledges that the customers submitted to the Company immediately shall become the property of the Company.
12. Representations and Warranties. In the performance of the service contemplated by this Agreement, Practitioner agrees that Practitioner shall not make any representations or warranties about the Company’s Products without prior written consent and direction of the Company. Specifically, Practitioner shall comply with any and all federal and state regulations regarding statements made about the Products.
13. Miscellaneous.(a) Practitioner acknowledges that breach of this Agreement would cause Company to suffer irreparable harm for which monetary damages would be inadequate compensation. Practitioner agrees that Company will be entitled to an injunction restraining any actual or threatened breach of this Agreement, or specific performance, if applicable, in addition to any monetary damages.
(b) All payments made to or for the benefit of Practitioner under this Agreement shall not be subject to withholdings for federal, state and local taxes, FICA, and other withholdings required by applicable law. Practitioner will be personally responsible for any and all employment related taxes and shall indemnify the Company for the same.
(c) This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements, whether written or oral.
(d) This Agreement may not be assigned by Practitioner, but the Company may assign any or all of its rights under this Agreement to any affiliate or subsidiary company of the Company, so long as the Company remains liable for the performance by that affiliate or subsidiary of the payment obligations of the Company hereunder. Except as provided in the preceding sentences of this Section, this Agreement shall be binding upon, and inure to the benefit of, the parties and their respective personal representatives, successors and assigns.
(e) No provision of this Agreement shall be altered, amended, revoked or waived except by an instrument in writing signed by the Party sought to be charged with such amendment, revocation or waiver.
(f) No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the party against whom it is charged.
(g) The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
(h) This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement on the dates set forth below, to be effective as of the Effective Date.
DesBio PAO, LLC a Utah limited liability company.
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Signed by Harold Swift
Signed On: January 14, 2021
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Document Name: 2b - Healthcare Practitioner Agreement
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